Citation Nr: 1040102	
Decision Date: 10/26/10    Archive Date: 11/01/10

DOCKET NO.  08-19 469	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, 
Washington


THE ISSUES

1.  Entitlement to service connection for the Veteran's cause of 
death.

2.  Entitlement to service connection for esophageal cancer, for 
accrued benefits purposes.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and son


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 


INTRODUCTION

The Veteran served on active military duty from December 1944 to 
February 1946.  The Veteran died in August 2007.  The appellant 
is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a December 2007 rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in Seattle, 
Washington, which denied entitlement to service connection for 
the Veteran's cause of death and entitlement to accrued benefits.

The appellant and her son testified during a hearing before the 
undersigned Veterans Law Judge in August 2010; a transcript of 
that hearing is of record.


FINDINGS OF FACT

1.  The Veteran died in August 2007.  The Veteran's death 
certificate listed the immediate cause of his death as esophageal 
carcinoma.

2.  At the time of his death the Veteran was service-connected 
left thigh scar, left lumbar scar, and residuals of wound to 
forearms and left buttock, all individually rated non-
compensable.  The Veteran was awarded a 10 percent disability 
rating for multiple non-compensable disabilities. 

3.  At the time of the Veteran's death in August 2007, he had a 
claim pending for service connection for esophageal cancer.

4.  The appellant filed her claim for accrued benefits in 
September 2007.

5.  Esophageal cancer was not shown in service, or for many years 
thereafter, and there is no competent, probative evidence of or 
opinion even suggesting a medical nexus (or, relationship) 
between esophageal cancer and service.


CONCLUSIONS OF LAW

1.  A disability of service origin did not cause or contribute 
substantially or materially to cause the Veteran's death.  38 
U.S.C.A. §§ 1110, 1116, 1310, 5103A, 5107 (West 2002& Supp. 
2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2009).

2.  For accrued benefits purposes, esophageal cancer was not 
incurred in or aggravated by active service, nor may service 
incurrence of a malignant tumor be presumed.  38 U.S.C.A. §§ 
1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 
2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

The provisions of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a), and as interpreted by the United States Court of 
Appeals for Veterans Claims (the Court) have been fulfilled.  In 
this case, the appellant's claims for compensation benefits for 
the Veteran's cause of death and accrued benefits were received 
in September 2007.  Thereafter, she was notified of the 
provisions of the VCAA by the RO in correspondence dated in 
October 2007.  This letter notified the appellant of VA's 
responsibilities in obtaining information to assist her in 
completing her claims, identified the appellant's duties in 
obtaining information and evidence to substantiate her claims, 
and provided other pertinent information regarding VCAA.  
Thereafter, the claims were reviewed and a statement of the case 
(SOC) was issued in March 2010.  See 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 
183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See 
also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), 
reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 
Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); 
Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson 
(Mayfield III), 07-7130 (Fed. Cir. September 17, 2007).  The 
Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 
2008, removing the sentence in subsection (b)(1) stating that VA 
will request the claimant provide any evidence in the claimant's 
possession that pertains to the claim.  Subsection (b)(3) was 
also added and notes that no duty to provide § 5103(a) notice 
arises "[u]pon receipt of a Notice of Disagreement" or when 
"as a matter of law, entitlement to the benefit claimed cannot 
be established."  See 73 Fed. Reg. 23,353-23,356 (Apr. 30, 
2008).

In a claim for Disability and Indemnity Compensation (DIC) 
benefits, VA's notice requirements include (1) a statement of the 
conditions, if any, for which a veteran was service-connected at 
the time of his 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.  See Hupp v. 
Nicholson, 21 Vet. App. 342 (2007).

To the extent that the RO's notice is not fully compliant with 
Hupp and notice provisions of the VCAA, any such error is 
presumed to be prejudicial.  See Sanders v. Nicholson, 487 F.3d 
881, 889 (Fed. Cir 2007).  However, under the circumstances of 
this case, any such error does not require a remand because the 
error did not affect the essential fairness of the adjudication.  
Id.  Specifically, the record reflects that "any defect was 
cured by actual knowledge on the part of the claimant," because 
the statements of the appellant throughout the appeal reflect 
that she understood all of the elements of VCAA notification.  
Id.  Statements of the appellant and her representative dated in 
September 2007 and August 2010 as well as the August 2010 hearing 
testimony indicates that the appellant is clearly aware of the 
evidence and information required to substantiate her claims for 
accrued benefits and for service connection for the Veteran's 
cause of death.  As such, the record reflects that the appellant 
had actual knowledge of the information and evidence needed to 
substantiate her claims on appeal.

During the pendency of this appeal, on March 3, 2006, the United 
States Court of Appeals for Veterans Claims (Court) issued a 
decision in the consolidated appeal of Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b) apply to all elements of a claim.  The Veteran received 
this notice in the July 2007 letter. 

The appellant has been made aware of the information and evidence 
necessary to substantiate her claims and has been provided 
opportunities to submit such evidence.  A review of the claims 
file also shows that VA has conducted reasonable efforts to 
assist her in obtaining evidence necessary to substantiate her 
claims during the course of this appeal.  The Veteran's service 
treatment records and post-service VA and private treatment 
records have been obtained and associated with the claims file.  

Furthermore, the appellant has not identified any additional, 
relevant evidence that has not otherwise been requested or 
obtained.  The appellant has been notified of the evidence and 
information necessary to substantiate her claims, and she has 
been notified of VA's efforts to assist her.  See Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  As a result of the 
development that has been undertaken, there is no reasonable 
possibility that further assistance will aid in substantiating 
her claims.

Law and Regulations

Accrued Benefits Claim

VA law provides that where death occurred on or after December 1, 
1962, periodic monetary benefits (other than insurance and 
servicemembers' indemnity) authorized under laws administered by 
VA, to which a payee was entitled at his or her death under 
existing ratings or decisions or those based on evidence in the 
file at date of death, and due and unpaid will, upon the death of 
such person, be paid as defined by regulation.  See 38 U.S.C.A. § 
5121 (West 2002 & Supp. 2009); 38 C.F.R. § 3.1000(a) (2009).

Evidence in the file at date of death means evidence in VA's 
possession on or before the date of the beneficiary's death, even 
if such evidence was not physically located in the VA claims 
folder on or before the date of death, in support of a claim for 
VA benefits pending on the date of death.  38 C.F.R. § 
3.1000(d)(4).  A claim for VA benefits pending on the date of 
death means a claim filed with VA that had not been finally 
adjudicated by VA on or before the date of death.  Such a claim 
includes a deceased beneficiary's claim to reopen a finally 
disallowed claim based upon new and material evidence or a 
deceased beneficiary's claim of clear and unmistakable error in a 
prior rating or decision.  Any new and material evidence must 
have been in VA's possession on or before the date of the 
beneficiary's death.  38 C.F.R. § 3.1000(d)(5).

The United States Court of Appeals for the Federal Circuit 
(Federal Circuit) has held that an accrued benefits claim is 
derivative of the Veteran's claim and that an accrued benefits 
claimant cannot be entitled to a greater benefit than the veteran 
would have received had he lived.  See Zevalkink v. Brown, 6 Vet. 
App. 483, 489-90 (1994); aff'd, 102 F.3d 1236 (Fed. Cir. 1996); 
cert. denied, 117 S. Ct. 2478 (1997) (holding that "the 
substance of the survivor's claim is purely derivative from any 
benefit to which the veteran might have been 'entitled' at his 
death [and gives the survivor] the right to stand in the shoes of 
the veteran and pursue his claim after his death.").

VA records show that service treatment records have been 
associated with the Veteran's claims file.  A VA examination was 
performed in May 1948.  An August 1948 rating decision 
established service connection for left thigh scar, left lumbar 
scar, and residuals of wound to forearms and left buttock, with a 
combined disability rating of 10 percent.

In June 2007 the Veteran filed a claim for, among other things, 
service connection for esophageal cancer and indicated treatment 
at the Seattle VA Medical Center (VAMC).  The Veteran was 
notified in July 2007 of evidence necessary to support his claim 
for service connection.  In a July 2007 response, the Veteran 
indicated he had no other information or evidence to give the VA 
to substantiate his claim.  A letter dated in September 2007 
indicates a fee-based examination was cancelled upon the death of 
the Veteran.  Records show that in August 2007, the Veteran died 
as a result of esophageal cancer.  The appellant's application 
for VA benefits was received in September 2007.  The Board finds 
that a claim for accrued benefits was timely filed and that the 
issue developed for appellate review must be decided based upon 
the evidence in VA's possession on or before the date of the 
beneficiary's death.

Service Connection Claim

Service connection may be granted for disability resulting from 
disease or injury incurred in or aggravated by active military 
service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 
3.303.  Service connection may be established for any disease 
diagnosed after discharge, when all the evidence, including that 
pertinent to service, establishes the disease was incurred in 
service.  See 38 C.F.R. § 3.303(d).

As a general matter, service connection for a disability on the 
basis of the merits of such claim is focused upon (1) the 
existence of a current disability; (2) the existence of the 
disease or injury in service, and; (3) a relationship or nexus 
between the current disability and any injury or disease during 
service.  See Cuevas v. Principi, 3 Vet. App. 542 (1992); 
Rabideau v. Derwinski, 2 Vet. App. 141 (1992).

Finally, in a claim for service connection, the ultimate 
credibility or weight to be accorded evidence must be determined 
as a question of fact.  The Board determines whether (1) the 
weight of the evidence supports the claim, or (2) the weight of 
the "positive" evidence in favor of the claim is in relative 
balance with the weight of the "negative" evidence against the 
claim: the appellant prevails in either event.  However, if the 
weight of the evidence is against the appellant's claim, the 
claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 
3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Cause of Death

When any veteran dies after December 31, 1956, from a service-
connected or compensable disability, VA will pay dependency and 
indemnity compensation to such Veteran's surviving spouse, 
children, and parents.  See 38 U.S.C.A. § 1310 (West 2002).  In a 
claim where service connection was not established for the fatal 
disability prior to the death of the veteran, the initial inquiry 
is to determine whether the fatal disorder had been incurred in 
or aggravated by service.  The Board must determine whether the 
fatal disorder should have been service-connected.  See 38 C.F.R. 
§ 3.312 (2009).

In order to establish service connection for the cause of the 
Veteran's death, the evidence must show that a disability 
incurred in or aggravated by active service was the principal or 
contributory cause of death.  38 U.S.C.A. § 1310 (West 2002); 38 
C.F.R. § 3.312(a) (2009).  In order to constitute the principal 
cause of death the service-connected disability must be one of 
the immediate or underlying causes of death, or be etiologically 
related to the cause of death.  38 C.F.R. § 3.312(b).  In order 
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); 38 
C.F.R. § 3.312(c)(1).

Factual Background and Analysis

Service treatment records, consisting of a December 1944 
induction examination report, do not show any treatment, 
complaints, or diagnosis of esophageal cancer. 

In an undated latter from the Veteran, presumably written while 
he was in combat, the Veteran indicated he used his rifle and 
grenades, and was being shot at by "wood-peckers."  The Veteran 
also reported he called in for air support and they "straffed" 
and bombed.  The Veteran finally reported that "something went 
off" behind him and that was the end of combat for him. 

In a February 2007 private treatment record, the Veteran admitted 
that he continued to smoke intermittently and the most recent 
time he quit was in November.  His history was remarkable for 
alcoholism

A private medical center discharge report dated in May 2007 
indicated a diagnosis of esophageal cancer with obstruction.  

In June 2007, the Veteran filed a claim for service connection 
for esophageal cancer due to exposure to phosphorus explosion 
from a mortar attack directly in front of him when he was 
attacking the Japanese.  He reported he had treatment from the VA 
Medical Center (VAMC) in Seattle, Washington. 

In a July 2007 letter the RO requested all records related to his 
cancer diagnosis and informed the Veteran what was necessary to 
substantiate a claim for service connection. 

In a July 2007 response, the Veteran indicated he had no other 
evidence to substantiate his claim. 

An August 2007 VA progress note indicated the Veteran wanted to 
establish care with the Seattle VAMC, and has a community 
provider with no prior VA primary care program. 

The Veteran passed away on August [redacted], 2007.  The death 
certificate indicates an immediate cause of death as esophageal 
adenocarcinoma.  The physician further listed other significant 
conditions contributing to death but not resulting in the 
underlying cause given above as "quit smoking at age 77, history 
of alcohol overuse."

The Veteran's spouse filed her claim in September 2007.  It was 
noted on an accompanying marriage certificate that the appellant 
and the Veteran were married in May 1983. 

Private treatment records received in November 2007 from Olympic 
Medical Center and Virginia Mason Medical Center indicate 
diagnosis and treatment for esophageal cancer beginning in May 
2007. 

In her June 2008 substantive appeal, the appellant reported that 
the Veteran was exposed to atomic radiation when he was attacked 
by mortar fire during combat in WWII, at the same time he 
incurrent an injury to his left high, left lumbar area, forearms, 
and left buttock.  She claimed that his exposure to radiation was 
the proximate cause of his esophageal cancer, which caused his 
death.  

During her August 2010 Board hearing, the appellant reported that 
the Veteran never discussed his claimed exposure to phosphorus 
with his physicians and that the Veteran had quit smoking in 
1996.  She asserted the Veteran often spoke of his exposure to 
bomb blasts, dirt, and white phosphorus grenades.  She reported 
that post-service the Veteran worked as an electrician 
supervising those who worked on power lines, and that when he was 
young, he drove a tractor trailer on a long-haul route. 

In August 2010 the appellant also submitted multiple internet 
articles concerning the health risks associated with white 
phosphorus, including the use of phosphorus in incendiary bombs 
in WWII. 


Analysis

Service Connection for Accrued Benefits Purposes

Based upon the evidence of record, the Board finds that 
esophageal cancer was not shown to have developed as a result of 
an established event, injury, or disease during active service.  
Evidence of a diagnosis of esophageal cancer is first shown in 
2007, more than 60 years after separation from active service.  
The Board also notes that the passage of many years between 
discharge from active service and the medical documentation of a 
claimed disability is a factor that tends to weigh against a 
claim for service connection.  See Maxson v. Gober, 230 F.3d 
1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 
(1992).  Significantly, the record also includes no competent 
medical opinion establishing a nexus or medical relationship 
between esophageal cancer diagnosed post-service and events 
during the Veteran's active service.  Neither the appellant nor 
her representative have presented, identified, or alluded to the 
existence of, any such opinion.  Consequently, the Board finds 
that entitlement to service connection for esophageal cancer for 
accrued benefits purposes is not warranted.

For purposes of accrued benefits, the Board has carefully 
considered the evidence associated with the file at the time of 
the Veteran's death; or in the case of VA records, those records 
are presumed to be in the custody of VA, as well as the 
appellant's statements regarding the Veteran's exposure to 
phosphorus as a cause of esophageal cancer.  While the Board does 
not doubt the sincerity of her belief that the Veteran's 
esophageal cancer is the result of his active service this claim 
turns on a medical matter.  As a layperson without the 
appropriate medical training or expertise, the appellant is not 
competent to render a probative opinion on such a medical matter.  
See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing 
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  See also Routen 
v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is 
generally not capable of opining on matters requiring medical 
knowledge").  Hence, the submitted assertions in this regard do 
not constitute persuasive evidence in support of the claim for 
service connection for accrued benefits purposes.

The appellant has submitted internet articles consisting of the 
risks associated with white phosphorus exposure and their use in 
WWII incendiary bombs.  However, what the records do not contain, 
are medical statements relating the Veteran's diagnosed 
esophageal cancer to any events in military service.  Medical 
treatise evidence can, in some circumstances, constitute 
competent medical evidence.  See Wallin v. West, 11 Vet. App. 
509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) (competent 
medical evidence may include statements contained in 
authoritative writings such as medical and scientific articles 
and research reports and analyses). However, the Court has held 
that medical evidence that is speculative, general or 
inconclusive in nature cannot support a claim.  See Beausoleil v. 
Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. 
App. 521, 523 (1996).  Here, the treatise evidence which has been 
submitted by the appellant during her August 2010 hearing is 
general in nature and does not specifically relate to the facts 
and circumstances surrounding the Veteran's particular case.

When all the evidence is assembled VA is then 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 the 
claim in which case the claim is denied.  Gilbert v. Derwinski, 1 
Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. 
Cir. 2001).  The preponderance of the evidence is against the 
appellant's claim.

Cause of Death

As found above, there is no basis upon which to conclude that the 
Veteran's esophageal cancer was incurred in or aggravated during 
military service.

At the time of his death, the Veteran was service connected for 
scars and assigned a 10 percent disability rating for multiple 
non-compensable disabilities.  The appellant has not asserted 
that the Veteran's service-connected scars played a significant 
role in his death, and there is no competent medical evidence in 
the file to suggest that they did.  

Based upon review of all the evidence, the Board finds the 
persuasive evidence of record demonstrates a disease or injury 
which caused or contributed to the Veteran's death was not 
incurred in or aggravated by service.  No medical specialist 
treating the Veteran has indicated that esophageal cancer was a 
result of phosphorus exposure in service, as alleged by the 
appellant.

Both Claims

Where a determinative issue involves medical causation or a 
medical diagnosis, competent medical evidence is required.  
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  Although the 
appellant is competent to provide evidence of visible symptoms, 
she is not competent to provide evidence that requires medical 
knowledge.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).


ORDER

Entitlement to service connection for the Veteran's cause of 
death is denied.

Entitlement to service connection for esophageal cancer, for 
accrued benefits purposes, is denied.



____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs