Citation Nr: 1007462 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 09-25 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for prostate cancer the purpose of accrued benefits. 3. Entitlement to death pension. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARINGS ON APPEAL The appellant and JJ ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to July 1970. He was the recipient of the Bronze Star Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2007, the appellant testified at a personal hearing before a Decision Review Officer, and in November 2009, the appellant and JJ testified at a hearing before the undersigned, via videoconference. Transcripts of these hearings are associated with the claims file. Subsequent to the last adjudication of the case by the RO, the appellant submitted additional evidence consisting of VA treatment records. See 38 C.F.R. § 20.1304 (2009). The Board notes that the appellant waived agency of original jurisdiction (AOJ) consideration of such evidence. Id. Therefore, the Board may properly consider such evidence in rendering its decision. FINDINGS OF FACT 1. The Veteran died in October 2005; the immediate cause of death was congestive heart failure due to stomach carcinoma with diabetes mellitus, hypertension, cerebrovascular accident, and atherosclerotic cardiovascular disease listed as other significant conditions. 2. At the time of death, service connection was in effect for bilateral hearing loss, evaluated as 30 percent disabling from January 21, 2003; tinnitus, evaluated as 10 percent from January 21, 2002; and diabetes mellitus, evaluated as 10 percent disabling from January 21, 2002. 3. Service connection for esophagogastrectomy for adenocarcinoma of the gastroesophageal junction (claimed as stomach cancer and esophageal cancer) was specifically denied by the RO in August 2003 and the Board in August 2005. 4. Neither diabetes mellitus nor its treatment by diet alone contributed causally or materially to the Veteran's death. 5. Cardiovascular disease did not contribute causally or materially to the Veteran's death. 6. At the time of death, the Veteran had no pending claims for VA benefits. 7. On November 3, 2009, prior to promulgation of a decision by the Board on the issue of entitlement to death pension, the appellant requested to withdraw her appeal on this issue. CONCLUSIONS OF LAW 1. The cause of the Veteran's death was not related to an injury or disease incurred in or aggravated by active military service or to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2009). 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.1000 (2009). 3. The criteria for withdrawal of a substantive appeal by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). With respect to the accrued benefits claim, the Board observes that further development of the appellant's claim is not necessary. The outcome of a claim for accrued benefits hinges on the application of the law to evidence which was in the file at the time of the Veteran's death. As no additional evidence may be added to the file in regards to this issue, no evidentiary development is necessary for the claim decided herein. Thus, no discussion of whether VA has fulfilled its duty to assist the appellant with respect to this claim is necessary. Nevertheless, with regard to the claim for service connection for cause of death, VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. The Board observes that disability ratings are not in question in cause of death claims, and so notice as to that particular element is unnecessary. Further, the Board notes that, while the appeal was pending, the Court issued a decision with regard to the content of VCAA notices relevant to DIC claims. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). In Hupp¸ the Court held that a notice with regard to a claim for DIC benefits must include (1) a statement of the conditions (if any) for which the Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected disability and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a disorder not yet service connected. Additionally, if the claimant raises a specific issue regarding a particular element of the claim, the notice must inform the claimant of how to substantiate the assertion, taking into account the evidence submitted in connection with the application. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the appellant was provided with a VCAA notification letter in April 2006, prior to the initial unfavorable AOJ decision issued in July 2006. An additional letter was sent in June 2009. The Board observes that the pre-adjudicatory VCAA notice issued in April 2006 informed the appellant of the type of how VA would assist her in developing her claim, and her and VA's obligations in providing such evidence for consideration. This notice did not inform her of the evidence necessary to establish service connection for the cause of the Veteran's death when not already service- connected or of how to establish effective dates. This information was first supplied in the June 2009 letter. Additionally, with respect to the notice elements required by the Court in Hupp, the June 2009 letter only fully advised the appellant of how to establish entitlement to DIC. The Board acknowledges the untimeliness of this notice, but finds that no prejudice to the appellant has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In this regard, the Board notes that as a matter of law, providing the appellant with VCAA-compliant notice prior to a readjudication "cures" any timing problem resulting from any deficiency in notice content or the lack of notice prior to an initial adjudication. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); citing Mayfield, 444 F.3d 1328, 1328 (Fed. Cir. 2006). A statement of the case (SOC) and supplemental SOC (SSOC) constitute "readjudication decisions" that comply with all due process requirements if preceded by adequate VCAA notice. See Mayfield, 499 F. 3d. In the present case, the appellant was sent an SOC subsequent to the June 2009 letter; therefore, any timing deficiency was rectified by subsequent adjudication. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the appellant in making reasonable efforts to identify and obtain relevant records in support of the appellant's claim and obtaining a VA opinion. The Veteran's service treatment records, VA medical records, private medical records, and June 2008 and June 2009 VA opinions were reviewed by both the RO and the Board in connection with adjudication of the claim. The appellant has not identified any additional, relevant records that VA needs to obtain for an equitable disposition of the claim. With regard to the VA opinions, the Board notes that once VA undertakes to obtain a VA opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Board finds that the June 2008 VA opinion is inadequate. The June 2008 examiner reviewed the claims file and thoroughly documented the Veteran's medical history; however, he failed to provide an opinion, stating that he could not resolve any of the questions without resorting to speculation. Thus, the June 2008 opinion does not provide a basis upon which the Board may decide the claim. However, the June 2009 VA examiner reached a conclusion with respect to the questions posed and provided a rationale for those conclusions based in the evidence of record. There is nothing to suggest that the examiner's opinion is not sufficiently based in the facts of the case or that he reached an arbitrary conclusion. The Board notes that the examiner did not proffer an opinion as to whether the Veteran's diabetes mellitus contributed to his cardiovascular disease, but determines that this fact does not render the examination inadequate. As discussed below, the examiner found that neither diabetes mellitus nor cardiovascular disease materially hastened death; hence, the question of a relationship between those two disorders was present is rendered moot. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c) (4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the appellant's claim without further development and additional efforts to assist or notify the appellant in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Therefore, the Board determines that the appellant will not be prejudiced by the Board proceeding to the merits of the claim. II. Cause of Death The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In such a situation, however, it would not generally be reasonable to hold that a service-connected disability accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(3), (4). As reported on the Veteran's death certificate, he died in October 2005, and the immediate cause of death was congestive heart failure due to stomach carcinoma. Other significant conditions noted were diabetes mellitus, hypertension, cerebrovascular accident, and atherosclerotic cardiovascular disease. At the time of death, service connection was in effect for bilateral hearing loss, evaluated as 30 percent disabling from January 21, 2003; tinnitus, evaluated as 10 percent from January 21, 2002; and diabetes mellitus, evaluated as 10 percent disabling from January 21, 2002. The appellant contends that the Veteran's service-connected diabetes mellitus was uncontrolled at the end of his life and that the treatment of the disability by diet alone accelerated the progression of his stomach cancer. Further, she argues that the Veteran's service-connected diabetes mellitus caused his cardiovascular disease, which in turn resulted in his congestive heart failure. Finally, she states that diabetes mellitus was listed as a contributing to death on the autopsy report. For these reasons, she argues that the Veteran's service-connected diabetes mellitus caused or contributed to his death, and that his death should be service-connected. The Board notes that the appellant has not argued that the Veteran's esophageal cancer, stomach cancer, or heart disease was incurred in or aggravated by his military service, and such theories are also not suggested by the treatment evidence. Additionally, the Board observes that service connection for esophagogastrectomy for adenocarcinoma of the gastroesophageal junction (claimed as stomach cancer and esophageal cancer) was specifically denied by the RO in August 2003 and the Board in August 2005. The Board is not obligated to consider "all possible" substantive theories of recovery, when such theories have no support in the record, and therefore will not discuss service connection for esophageal cancer further. See Robinson v. Mansfield, 21 Vet. App. 545, 559 (2008), aff'd Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The record reflects that the Veteran was diagnosed with diabetes mellitus at some time prior to July 1998. Private treatment records show that oral hypoglycemics were discontinued at that time, and that the disorder was then controlled by diet exclusively. In October 2002, the Veteran was diagnosed with esophageal cancer, and he subsequently underwent an esophagogastrectomy. The cancer was also found in the lymph nodes, and was eventually determined to have metastasized to the liver and pancreas, resulting in his death in October 2005. The record also shows that the Veteran had cardiovascular disease; however, the first notation of this disorder is in the autopsy report. With respect to whether the Veteran's stomach cancer progressed and his death hastened due to uncontrolled diabetes mellitus or whether uncontrolled diabetes mellitus contributed to his heart disease, VA opinions were requested and reports received in June 2008 and June 2009. As discussed above, the June 2008 opinion is inadequate in that the examiner does not actually provide an opinion, but declines on the basis that he could not form an opinion without resorting to mere speculation. The June 2009 examiner, however, reviewed the claims file and relevant medical literature and reached the following conclusions. First, the examiner noted that, with the exception of the brief period of treatment with oral hypoglycemic medications early on, the Veteran's diabetes mellitus was treated with controlled diet only up until his death. The examiner indicated that his review of blood work revealed that the Veteran's diabetes mellitus had been well controlled with diet and exercise and was remarkably well controlled at the time of his death. The examiner then opined that it was less likely as not that the Veteran's diabetes mellitus materially hastened his death from metastatic stomach cancer. With regard to the Veteran's cardiovascular disease, the examiner stated that the Veteran had exhibited no symptoms of ischemic heart disease, episodes of chest pain, or myocardial infarction prior to his death and that the finding of atherosclerotic heart disease appeared to be an incidental finding at autopsy. Thus, given the fact that the Veteran's cardiac functioning was well-maintained and he had no history of cardiac compromise, the examiner opined that it was less likely as not that the heart disease materially hastened death or caused congestive heart failure. The Board notes that the examiner did not proffer an opinion as to whether the Veteran's diabetes mellitus contributed to his cardiovascular disease. However, as the examiner found that neither the diabetes mellitus nor the cardiovascular disease materially hastened death, the question of whether a relationship between those two disorders was present is rendered moot. The appellant has not submitted any contrary evidence beyond her own contentions and lay statements. The appellant can attest to factual matters of which she had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of diagnosis and causation. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Thus, the record is devoid of any competent evidence that demonstrates that the Veteran's diabetes mellitus or another non-service-connected disorder related to the diabetes mellitus had a material influence in accelerating death. See 38 C.F.R. § 3.312(c). The fact that treatment was in effect for a disability at the time of death or that such disability was noted as significant on the Veteran's death certificate, as was the case here, does not in and of itself necessitate a finding that the disability contributed to the underlying cause of death. The disability must have contributed in the way defined in VA regulations. Here, the competent and probative evidence of record establishes that the Veteran's diabetes mellitus did not contribute to the Veteran's death and that cause of death was not due to or materially accelerated by a disorder, such as cardiovascular disease, that was related to the service-connected diabetes mellitus. For these reasons, service connection for cause of death is not warranted. As indicated, the Board is aware of the appellant's lay statements in support of her claim and is sympathetic to her beliefs with respect to her claim. Unfortunately, the appellant is simply not competent to ascribe a causative role to the Veteran's diabetes mellitus and cardiovascular disease in his death. Absent competent and probative evidence showing that a service-connected disability played a causal role in the Veteran's death, the criteria for service connection for the cause of the Veteran's death have not been met. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Therefore, her claim must be denied. III. Accrued Benefits Periodic monetary benefits (other than insurance and servicemen's indemnity) under laws administered by VA to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of death (referred to as "accrued benefits") and due and unpaid for a period not to exceed two years, shall, upon the death of such individual, be paid to the Veteran's spouse. 38 U.S.C.A. § 5121(a) (West 2002); see also 38 C.F.R. § 3.1000 (2009). For a survivor to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death or have been entitled to benefits, accrued and unpaid, under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), cert. denied, 525 U.S. 834 (1998). The appellant argues that the Veteran was entitled to service connection for prostate cancer and that a claim should have been construed prior to his death. Therefore, she argues that she, in turn, is entitled to payment of accrued benefits for that disability. The last claims decided prior to the Veteran's death were entitlement to service connection for hypertension and esophageal cancer and to an initial rating in excess of 10 percent for service-connected diabetes mellitus. In August 2005, the Board denied these claims, and the Veteran did not request reconsideration of this claim by the Board. The Veteran also filed no additional claims prior to his death, and there is nothing in the record that may be construed as a claim for prostate cancer. The Board notes that a May 2005 VA treatment record, as well as the autopsy report reveal a history of prostate cancer, and acknowledges the appellant's arguments that the May 2005 VA treatment record should be treated as an informal claim for benefits. "Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. This informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155. Treatment records are not considered as claims for service connection in any context unless they indicate that the Veteran is seeking or intending to seek benefits from VA. Hence, the mere mention of prostate cancer in a treatment record does not constitute a claim for service-connected benefits for prostate cancer. Moreover, the record does not reveal any other submissions or statements by the Veteran that represent a claim for service connection or an increased rating that was not properly adjudicated by the RO and/or the Board prior to his death. Thus, the Veteran was not entitled to benefits based on claims pending at the time of his death. The Veteran must have taken some action to claim entitlement to benefits prior to his death. In accrued benefits claims, the appellant essentially takes the Veteran's place in the adjudication of claims he or she had pending before VA, and entitlement is limited to those claims. The payment of accrued benefits is payment to the surviving spouse or other beneficiary of benefits the Veteran would have received but for his or her death prior to conclusion of the adjudication of the claims. In other words, the appellant is not entitled to file new claims for compensation for disabilities of the Veteran. Accordingly, the appellant's claim for service connection for prostate cancer for the purposes of accrued benefits purposes is denied. IV. Death Pension Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The appellant withdrew her claim of entitlement to death pension at her November 2009 hearing, and as such, there remain no allegations of errors of fact or law for appellate consideration for this issue. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to death pension. This issue is, therefore, dismissed. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to service connection for prostate cancer for the purposes of accrued benefits is denied. The issue of entitlement to death pension is dismissed. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs