Citation Nr: 1019784 Decision Date: 05/27/10 Archive Date: 06/09/10 DOCKET NO. 05-06 597 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD O. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1969. He died in April 2003 at age 53. The appellant claims benefits as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the RO, which denied a claim for service connection for cause of death. The Board remanded this case in November 2007 and April 2009. It returns now for appellate consideration. FINDINGS OF FACT 1. The Veteran died in April 2003 as the result of chronic obstructive pulmonary disease. 2. At the time of the Veteran's death, service connection was in effect for post-traumatic stress disorder (PTSD), rated as 50 percent disabling. 3. No service-connected disability has been shown to be the principal or contributory cause of the Veteran's death. 4. The competent medical evidence of record does not show that the Veteran's cause of death or contributory cause of death is etiologically related to service. CONCLUSION OF LAW The Veteran's cause of death was not incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file, and has an obligation to provide reasons and bases supporting the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120- 21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Any error related to this element is harmless. Prior to and following the initial adjudication of the appellant's claim, letters dated in October 2003, March 2008 and June 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Pelegrini II, 18 Vet. App. at 120-21. The letters advised the appellant of the information necessary to substantiate the claim, and of her and VA's respective obligations for obtaining specified different types of evidence. The appellant was informed of the specific types of evidence she could submit, which would be pertinent to her claim, and told that it was ultimately her responsibility to support the claim with appropriate evidence. The Court has held that in the context of a claim for DIC benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a 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 condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). As noted above, the Board remanded the issue currently on appeal in November 2007 and April 2009. The Board instructed the AOJ to provide the appellant with a corrective VCAA notice in compliance with Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). On remand, the appellant was provided a notice letter dated in March 2008, which advised her that to support her claim for DIC benefits, the evidence must show that either the Veteran died while on active duty or he died from a service- connected injury or disease. The letter also informed her of the conditions for which the Veteran was service connected at the time of his death. Subsequently, a June 2009 letter notified the appellant of the evidence necessary to support a claim for DIC benefits based on a disability that was not service-connected during his lifetime. Based on the foregoing, the Board finds there to be at least substantial compliance with the November 2007 and April 2009 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). Regarding the first element of Hupp, the Board notes that the appellant was notified of the conditions for which the Veteran was service-connected at the time of his death in the June 2009 VCAA notice letter. The letter stated that at the time of the Veteran's death, service connection was in effect for PTSD. Concerning the second element, the Board notes that the RO provided an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition in the October 2003, March 2008 and June 2009 VCAA notice letters. Indeed, the appellant was advised that VA needed medical evidence showing that the Veteran died from a service-connected injury or disease. The October 2003 letter specified that there must be medical evidence showing a reasonable probability that the condition that contributed to the Veteran's death was caused by injury or disease that began during service. The June 2009 letter explained that the evidence needed to show that the Veteran had a service-connected disability that was either the principal or contributory cause of the Veteran's death. With respect to the third element, the Board notes that the June 2009 letter advised the appellant of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. The letter explained that the evidence needed to show: (1) an injury or disease that was incurred or aggravated during active military service, or an event in service that caused an injury or disease; (2) a disability that was either the principle or contributory cause of death; (3) and a relationship between the disability associated with the cause of death and the injury, disease or event in military service. Subsequent to the issuance of the April 2009 letter, the appellant's claim was readjudicated in the March 2010 supplemental statement of the case (SSOC). Thus, there was no deficiency in notice and a harmless error analysis is not necessary. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Board further notes that the AOJ provided the appellant with a copy of the March 2004 rating decision, February 2005 SOC, and February 2009 and March 2010 SSOCs, which included a discussion of the facts of the claim, pertinent laws and regulations, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the appellant that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records have been associated with the record. The appellant has been afforded ample opportunity to identify or provide evidence in support of her appeal. She has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes a medical opinion is not needed in this case because there is no evidence to suggest that the disability that contributed to the Veteran's death should be service-connected. The only evidence linking the Veteran's death to service is the appellant's own lay statements. Such assertions, without any competent evidence to support the claim, is insufficient to warrant obtaining a medical opinion in view of the evidence of record that is discussed below. The appellant was advised in the VCAA notice letters to submit evidence showing that the condition that contributed to the Veteran's death had its onset in service or was permanently aggravated by service. No such evidence has been received by VA. As there is no evidence connecting the cause of the Veteran's death to anything of service origin, the Board concludes that an examination is not necessary to the resolution of this claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Cause of Death The appellant is seeking service connection for the cause of the Veteran's death. The appellant claims that the Veteran's chronic obstructive pulmonary disease (COPD), which resulted in his death, was caused by exposure to Agent Orange during his active duty in Vietnam. See Statement of Accredited Representation in Appealed Case, March 2005. She also asserts that the Veteran's nonservice-connected conditions were affected by his service-connected PTSD. See Notice of Disagreement, April 2004. For the reasons that follow, the Board concludes that service connection for the cause of the Veteran's death is not warranted. When a veteran dies of a service-connected disability, the veteran's surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.5(a), 3.312 (2009). The death of a veteran will be considered as having been due to a service- connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110, 1112 (setting forth criteria for establishing service connection). The issue involved will be determined by the exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312(a). A service-connected disability is the principal cause of death when that 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). A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1); see generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). For it to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which the veteran had established service connection at the time of death or for which the veteran was otherwise entitled to receive service connection. See Hupp, 21 Vet. App. 342. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran's death certificate reports that he died in April 2003, at age 53, and that the immediate cause of death was COPD. An autopsy was not performed. At the time of the Veteran's death, service connection was in effect for PTSD, rated as 50 percent disabling. As an initial matter, the Board notes that there is no evidence in the record indicating that the cause of the Veteran's death might be related to his service-connected PTSD. Thus, the Board will inquire as to whether or not the Veteran was entitled to service connection for any disabilities that caused his death. To show a disability for which the veteran was entitled to receive service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In cases of service connection for the cause of death of the veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the veteran to die; however, the last two requirements for a service-connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). Here, the Veteran's death certificate shows that his death was caused by COPD. The appellant contends that the Veteran's COPD was caused by exposure to herbicides in Vietnam. The record reflects that, during his lifetime, a claim of service connection for emphysema was denied in December 1986, and a claim of service connection for COPD and lipid pneumonia was denied in August 1994. A disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In Haas v. Peake, 525 F.3d 1168 (2008), the United States Court of Appeals for the Federal Circuit held that § 3.307(a)(6)(iii) was reasonably interpreted by VA as requiring that a servicemember had actually set foot within the land borders of Vietnam in order to be entitled to statutory presumptions of herbicide exposure and service connection. Diseases associated with such exposure include: chloracne or other acneform diseases consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult- onset diabetes); Hodgkin's disease; multiple myeloma; non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft- tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, the Secretary has determined that a presumption of service connection is not warranted for any disease not affirmatively named in the presumptive list. See Fed. Reg., 72 FR 32395 (June 12, 2007). COPD is not on the list of diseases presumptively associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Based on the law, the appellant cannot benefit from the presumption, regardless of whether the Veteran was exposed to herbicides in service. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude an appellant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1040 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The Board has reviewed the Veteran's service treatment records and finds that while they reflect medical treatment for a number of other conditions, they are completely silent regarding complaints, diagnosis or treatment of COPD or other respiratory problems. Clinical findings of the lungs and chest at the September 1969 separation examination were normal, and a chest X-ray was negative. In this regard, the evidence fails to indicate that the Veteran's COPD had its onset in service. The medical evidence on file consists of VA treatment records dated as early as 1976 and private medical records dated from 2001 to 2003. These records reflect treatment for an array of respiratory problems, including COPD, pulmonary fibrosis, bronchorrhea, pulmonary hypertension, lipoid pneumonia, bronchectasis, acute and chronic bronchitis, and recurrent pseudomonas pneumonia. A private treatment record dated in January 2002 indicated that the Veteran continued to smoke cigarettes. In March 2003, it was noted that the Veteran had quit smoking within the past year. The treatment records also show that the Veteran had gotten a tracheostomy in February 2002. The Board concludes that the preponderance of the evidence is against a finding that the Veteran's COPD was related to his military service. As indicated above, the Veteran is shown to have received extensive treatment for respiratory problems over the years. However, aside from occasional references to the Veteran's self-reported belief that his COPD was related to in-service herbicide exposure, none of the treatment records mention anything about service. Rather, the records seem to attribute the Veteran's lung problems to his longstanding history of heavy smoking. The appellant has not claimed that the Veteran suffered from a lung disorder related to in-service tobacco use, and additionally, service connection for a disability based on an addiction to nicotine is prohibited for claims filed after June 9, 1998, as is the case here. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2009). Taking into account all of the relevant medical evidence of record, there is no indication that the Veteran's death was caused by a disease or injury of service origin. Rather, the evidence establishes that his death was attributable COPD, which is not shown to have been related to service. The Board is mindful of the appellant's assertions that the Veteran's service-connected PTSD contributed to his death. Specifically, she argues that his nonservice-connected conditions were affected by his PTSD. However, the Veteran's death certificate establishes that his death was caused by COPD, and his medical treatment records fully support this finding. Although the Veteran was service-connected for PTSD, there is no evidence on file to link his COPD secondarily to PTSD. The appellant's lay assertions that the Veteran's death was causally or etiologically related to service are not supported by any competent medical evidence of record. There is no medical evidence here linking the Veteran's respiratory problems to his PTSD symptoms. The appellant can attest to factual matters of which she has first-hand knowledge; for example, she is competent to report what she experienced or observed. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, she is not a medical professional, and therefore her beliefs and statements about medical matters do not constitute competent evidence on matters of medical etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The Board finds that the preponderance of the evidence is against the appellant's claim that a disease or injury of service origin caused or contributed to the Veteran's death. In light of the foregoing, the Board concludes that service connection for the cause of the Veteran's death is not warranted. Although the appellant is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs