Citation Nr: 1120214 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 06-19 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE 1. Entitlement to dependency and indemnity compensation benefits based on service connection for cause of the Veteran's death, to include under the provisions of 38 U.S.C.A. § 1151 (West 2002). 2. Entitlement to increased ratings for right and left knee disabilities for accrued benefits purposes. 3. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for esophageal cancer for accrued benefits purposes. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her two daughters ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran had active duty service from April 1970 to December 1971. The Veteran died in May 2004. The appellant seeks benefits as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Philadelphia, Pennsylvania, Regional Office & Insurance Center (RO) of the Department of Veterans Affairs (VA), which denied the issue listed on the title page. In June 2008, April 2009, and August 2009, the claim of entitlement to dependency and indemnity compensation benefits based on both entitlement to service connection for cause of the Veteran's death, and entitlement to compensation under the provisions of 38 U.S.C.A. § 1151, was remanded for further development. The claim is again before the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to increased ratings for right and left knee disabilities, and entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for esophageal cancer, for accrued benefits purposes are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran died in May 2004; the Veteran's death certificate lists his immediate cause of death as esophageal cancer. 2. At the time of the Veteran's death, service connection was in effect for degenerative joint disease of the lumbar spine, evaluated as 20 percent disabling; degenerative joint disease of the right knee, evaluated as 20 percent disabling (under Diagnostic Code 5257); degenerative joint disease of the left knee, evaluated as 20 percent disabling; degenerative joint disease of the right knee (under Diagnostic Code 5261), evaluated as 10 percent disabling; and residuals of meniscectomy of the left knee, evaluated as 10 percent disabling. 3. The Veteran did not serve in the Republic of Vietnam during the Vietnam war, and thus he may not be presumed to have been exposed to Agent Orange. 4. There is no competent evidence linking the cause of the Veteran's death to service and no competent evidence that any service-connected disability was either the principal or contributory cause of death. 5. The competent evidence of record preponderates against finding that the Veteran's death was caused by VA hospitalization or medical or surgical treatment, or was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or that it was proximately caused by an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. A service-connected disease or disability was neither the principal cause nor a contributory cause of the Veteran's death. 38 U.S.C.A. §§ 1110, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312, 3.313 (2010). 2. The criteria for entitlement to compensation under 38 U.S.C.A. § 1151, for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1151, 5107; 38 C.F.R. § 3.361 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (hereinafter VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in July 2004, February 2005, and July 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. A September 2009 letter informed the appellant of the disabilities for which the Veteran was service connected and how effective dates are determined in the event the benefit sought is allowed, as well as reiterating the other facets of VCAA content-compliant notice. Following issuance of the September 2009 letter and completion of the additional development directed, the claim was reviewed on a de novo basis in the February 2011 supplemental statement of the case. Thus, any timing-of-notice error was cured and rendered harmless. See 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 in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims, including VA medical records. VA obtained the service personnel records to determine if the Veteran had service in the Republic of Vietnam. VA also obtained two medical opinions in April 2005 and July 2010. VA provided the appellant with a video conference hearing before the Board in July 2009. A transcript of the hearing is of record. The undersigned Veterans Law Judge discussed the types of evidence and findings needed to support the appellant's claim during the July 2009 Board hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In August 2009, the Board remanded the claim for entitlement to dependency and indemnity compensation benefits based on service connection for cause of the Veteran's death, and entitlement to compensation to include under the provisions of 38 U.S.C.A. § 1151 for additional development and adjudicative action. Specifically, the Board wanted VA to provide the appellant with proper notice of the evidence necessary to substantiate the claim, obtain additional records, if they existed, and obtain a medical opinion. VA sent the appellant the above described letter in September 2009. VA obtained additional VA treatment records, and obtained a medical opinion that answered the questions asked by the Board. Thus, the Board finds the additional development regarding this claim was completed. Following the February 2011 supplemental statement of the case, the appellant submitted additional evidence and argument. The additional evidence submitted was of previously of record. Thus, the Board finds that the claim does not need to be remanded for agency of original jurisdiction consideration. See 38 C.F.R. § 20.1604(c) (2010). The appellant has not identified any other outstanding and relevant medical records that need to be obtained. The appellant was provided the opportunity to meaningfully participate in the adjudication of the claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Service Connection for Cause of the Veteran's Death The Veteran died in May 2004. His death certificate lists the immediate cause of death was esophageal cancer. At the time of the Veteran's death, service connection was in effect for degenerative joint disease of the lumbar spine, evaluated as 20 percent disabling; degenerative joint disease of the right knee, evaluated as 20 percent disabling (under Diagnostic Code 5257); degenerative joint disease of the left knee, evaluated as 20 percent disabling; degenerative joint disease of the right knee (under Diagnostic Code 5261), evaluated as 10 percent disabling; and residuals of meniscectomy of the left knee, evaluated as 10 percent disabling. The appellant does not claim, and the record does not show, that esophageal cancer had its onset in service or that it was compensably disabling within one year following discharge from active duty. She has alleged that the Veteran was exposed to Agent Orange while in service, which could have caused the development of esophageal cancer. The appellant's main contention, however, is that the Veteran's death was ultimately caused by negligent medical services by VA, which will be addressed separately below. The service personnel records show that the Veteran did not serve in the Republic of Vietnam. Hence, he may not be presumed to have been exposed to Agent Orange. 38 C.F.R. §§ 3.307, 3.309. In order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either 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). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death that it combined to cause death, or aided or lent assistance to the production of death. 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). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting 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 this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. §§ 3.312(c)(3), (4). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to service connection for the cause of the Veteran's death. The appellant's only allegation as to the cause of the Veteran's death being due to service is based on an assertion that exposure to Agent Orange caused his esophageal cancer. The Veteran's service personnel records show that he did not serve in the Republic of Vietnam. Thus, he may not be presumed to have been exposed to Agent Orange. The bare and unsubstantiated allegation that the Veteran developed esophageal cancer due to Agent Orange exposure cannot stand without evidence corroborating the claimed in-service exposure. Moreover, it must be noted that esophageal cancer is not one a presumptive cancer listed as being due to Agent Orange exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Hence, even if the Veteran is presumed to have been exposed to herbicides, without competent evidence linking that exposure to the development of esophageal cancer, service connection for the cause of the Veteran's death is not in order. The record reveals no competent evidence showing or even suggesting that esophageal cancer is related to the Veteran's service. In the July 2010 medical opinion, the examiner stated that esophageal cancer is a grave diagnosis with a five-year survival of between 10 to 20 percent. This is evidence against a finding that the Veteran had compensably disabling esophageal cancer in or within one year following discharge from active duty. The appellant has not attempted to allege that the Veteran's service-connected disabilities contributed to the Veteran's death. Hence, there is no competent evidence that the Veteran's service-connected disabilities related to his low back and knees contributed substantially or materially to death, or combined to cause death, or aided or lent assistance to the production of his death. Rather, the evidence establishes that the Veteran died of esophageal cancer, which was not service connected at the time of his death and there is no suggestion that a service-connected disability or disabilities contributed to his death. The Board has considered the doctrine of the benefit of the doubt, under 38 U.S.C.A. § 5107 and 38 C.F.R. § 3.102, but it does not find that the evidence is of such approximate balance as to warrant its application. Accordingly, the appellant's claim for entitlement to service connection for the cause of the Veteran's death is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Dependency and indemnity compensation under 38 U.S.C.A. § 1151 The appellant contends that she is entitled to dependency and indemnity compensation benefits pursuant to 38 U.S.C.A. § 1151, for the Veteran's death because he was the victim of improper VA medical treatment. At the July 2009 Board hearing, the appellant testified that the Veteran had complained of pain in his stomach and regurgitation as far back as 1995 or 1996. She noted the Veteran had been diagnosed with a small hiatal hernia with gastroesophageal reflux in August 1995. The appellant stated that VA was aware that cancer ran in the Veteran's family, and that VA should have tested the Veteran back then for cancer. She stated all VA gave the Veteran at that time for treatment was medication. The appellant stated the Veteran still complained of the stomach pain. She stated that in April 2000, there was a notation that the radiological appearance was "significantly more pronounced than it was two years ago." The appellant testified that nothing was done after this finding. She stated she felt VA could have done something years ago to help her husband so that he could have survived this cancer. The appellant stated VA finally did a biopsy in December 2003, and noted the Veteran passed in May 2004. For claims filed after 1997, dependency and indemnity compensation shall be awarded for a qualifying Veteran's death if the death was not the result of the Veteran's willful misconduct and the death was caused by hospital care or medical treatment furnished by the VA and the proximate cause of the death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. See 38 U.S.C.A. § 1151. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's death and VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, his representative's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable healthcare provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable healthcare provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's death was caused by VA hospitalization or medical or surgical treatment, and against finding that his death was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or that it was proximately caused by an event not reasonably foreseeable. There is no evidence showing that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. In a July 2010 medical opinion, a VA examiner concluded that VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider in regard to the Veteran's gastrointestinal treatment. The examiner stated the following, in part: The claims folder has been reviewed. There is good evidence that this unfortunate [V]eteran did receive regular medical care and investigation of his gastrointestinal symptoms. He had repeated radiologic upper gastrointestinal series examinations and CT scans. He had one prior upper endoscopy within about 3 years of the upper endoscopy which diagnosed the esophageal adenocarcinoma. Importantly, at the initial endoscopy, Barrett's metaplasia was not present. After the second endoscopy, at which time the diagnosis was revealed, subsequent treatment plans were made in a timely manner. The following provides evidence for these conclusions. The VA examiner then laid out the relevant evidence beginning in 1995, when the Veteran underwent an upper gastrointestinal series. She provided detailed facts regarding the Veteran's gastrointestinal complaints and what VA did in response to those complaints. She opined that the Veteran's carcinoma was most likely caused by his history of smoking. The provisions of 38 U.S.C.A. § 1103 (West 2002) prohibit service connecting a disability as a result of disease or injury attributable to the use of tobacco products during a veteran's active service. By its terms, 38 U.S.C.A. § 1103 is applicable to claims filed after June 9, 1998. See 38 C.F.R. § 3.300 (2010). As this claim was presented after June 9, 1998, 38 U.S.C.A. § 1103 must be applied in this case. The July 2010 examiner's conclusions were fully explained in the July 2010 medical opinion, and her representative has had an opportunity to review that document on several occasions. There is no competent evidence to refute this medical opinion. The VA physician's opinion is of great probative value because the examiner provided a detailed rationale for her conclusions, which was based upon evidence in the claims file which she discussed extensively. While the Board sympathizes with the appellant's loss, the competent evidence does not suggest any negligence on the part of VA treating personnel. The Board has considered the appellant's belief that VA was negligent in rendering medical services to the Veteran, but her lay opinion is unsupported by the competent evidence. There is no competent evidence or opinion of record that demonstrates that VA was negligent in rendering medical services to the Veteran. While lay statements may serve in some cases to support claims by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. The issue in this case, however, is a complex matter which requires specialized training for a determination as to causation, standard of care, foreseeability, etc., and it is therefore not susceptible of resolution by lay opinions. In the absence of competent evidence which demonstrates that the Veteran's death was a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, entitlement to dependency and indemnity compensation pursuant to 38 U.S.C.A. § 1151 is not warranted. Accordingly, the claim is denied. The preponderance of the evidence is against the appellant's claims and the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. ORDER Entitlement to dependency and indemnity compensation benefits based on service connection for cause of the Veteran's death, to include under the provisions of 38 U.S.C.A. § 1151, is denied. REMAND In the June 2008 remand, the Board referred claims of entitlement to increased ratings for right and left knee disabilities, and entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for esophageal cancer, for accrued benefits purposes. Accrued benefit claims are based upon evidence that was of record on the date of the Veteran's death. 38 C.F.R. § 3.1000 (2010). When the case was returned to the Board in August 2009, these issues had yet to be adjudicated by the RO. Hence, the Board again referred to the RO for immediate action. The Board also included in the remand the following instruction: The RO must adjudicate the claims of entitlement to increased ratings for right and left knee disabilities, and entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for esophageal cancer, for accrued benefits purposes. There is no indication in the record that these claims have been adjudicated. Thus, the Board will remand the claims for compliance with its earlier remand. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). Accordingly, the case is REMANDED for the following action: The RO must adjudicate the claims of entitlement to increased ratings for right and left knee disabilities, and compensation under the provisions of 38 U.S.C.A. § 1151 for esophageal cancer, for accrued benefits purposes. The appellant is hereby notified that the Board may exercise jurisdiction over these issues ONLY if she files a timely notice of disagreement following the issuance of any rating decision, and ONLY if she thereafter perfects an appeal in a timely manner. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs