Citation Nr: 1124034 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 06-08 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to basic eligibility for Dependents' Education Assistance (DEA) under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to April 1973 and from October 1981 to December 1987. The Veteran died in June 2002; the present appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the course of the appeal the claims file was transferred to the RO and Insurance Center in Philadelphia, Pennsylvania, which is currently VA's Agency of Original Jurisdiction (AOJ). The issue of entitlement to rating in excess of 70 percent for PTSD for accrued benefits purposes has been raised by the record but has not been adjudicated by the RO. The Board referred this question to the AOJ in March 2007 and again in February 2010 but there is no indication in the file the AOJ has taken any action on this issue. In the absence of an appealed RO rating decision the Board does not have jurisdiction to consider the matter, and it is again referred to the AOJ for appropriate action. In February 2010 the Board remanded this appeal to the AOJ for additional development. That development has been performed, and the file has been returned to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran did not serve in Vietnam, and exposure to herbicides is not otherwise documented. 2. The Veteran died in June 2002 from pancreatic cancer. 3. The Veteran had service connection for posttraumatic stress disorder, degenerative disc disease of the lumbosacral spine, arthritis of the cervical spine with left radiculopathy and hiatal hernia with esophageal reflux and esophageal ring; his combined disability rating was 90 percent. 4. The Veteran's service-connected disabilities are not etiologically related to the pancreatic cancer that caused his death. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.312, 3.313 (2010). 2. The criteria for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code are not met. 38 U.S.C.A. §§ 3501, 3510 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.807(a), 21.3020, 21.3021 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veteran Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. In the context of a claim for Dependency and Indemnity Compensation (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 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). Notice complying with the Hupp decision was provided to the Veteran in April 2010. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although full VCAA notice was not provided to the appellant until after the initial adjudication of the claim, Board finds that there is no prejudice to her in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the appellant's claim based on all evidence of record. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds the appellant has been afforded adequate assistance in regard to the claim. The Veteran's full service treatment records (STRs) are associated with the claims files, as are relevant VA and private treatment records. The appellant has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Board remanded the claim in February 2010 to obtain VA medical opinion regarding the etiology of the pancreatic cancer that was the cause of the Veteran's death. The required medical opinion has been obtained; the Board has reviewed the report the opinion substantially complies with the requirements of the Board's remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claims on appeal. Legal Criteria Service connection for the cause of a veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability is one that was incurred in or aggravated by active service; one that may be presumed to have been incurred or aggravated during such service; or one that was proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. To establish service connection for the cause of a veteran's death, evidence must show a disability incurred in or aggravated by active service either caused or substantially or materially contributed to the veteran's death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to be a contributing cause, it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To establish entitlement to DEA benefits under 38 USC, Chapter 35, the veteran must have died as a result of service-connected disability or must have had a permanent and total disability in existence at the time of his or her death. 38 U.S.C.A. §§ 3500, 3501(a)(1); 38 C.F.R. §§ 3.807, 21.3020, 21.3021. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Entitlement to Service Connection for Cause of the Veteran's Death The Veteran died in June 2002. The death certificate lists the cause of death as metastatic pancreatic cancer to the retroperitoneum; the approximate interval between onset and death was 2 months. At the time of his death the Veteran had service connection for the following disabilities: posttraumatic stress disorder (PTSD), rated as 70 percent disabling; degenerative disc disease (DDD) of the lumbosacral spine, rated as 40 percent disabling; arthritis of the cervical spine with left radiculopathy, rated as 20 percent disabling; and, hiatal hernia with esophageal reflux and esophageal ring, rated as 10 percent disabling. His combined disability rating was 90 percent. The appellant essentially contends the Veteran's service-connected PTSD caused him to abuse alcohol and drugs, and that such abuse in turn contributed to his fatal pancreatic cancer. Alternatively, she contends the Veteran handled body bags that had been flown in from Vietnam and were accordingly contaminated with Agent Orange. The Veteran is not shown to have served in Vietnam or any other foreign country. Accordingly, exposure to Agent Orange cannot be presumed. VA has never conceded that simple exposure to items shipped from Vietnam, even if demonstrated on the record, can satisfy the presumption of exposure to herbicides. Further, the Secretary of Veterans Affairs has determined that there is no presumptive positive association between exposure to herbicides and any other condition (such as pancreatic cancer) for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41, 442-449 and 61 Fed. Reg. 57, 586-89 (1996); Notice, 64 Fed. Reg. 59, 232-243 (Nov. 2, 1999). Notwithstanding the presumption, a claimant can establish service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). In this case, the Veteran's attending gastroenterologist Dr. AFR submitted a letter in August 2003 stating that as Agent Orange has been linked to diabetes, and as there is a clear link between diabetes and pancreatic cancer, this could very well have contributed to the development of pancreatic cancer. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this case, the Board finds the opinion of Dr. AFR linking the Veteran's pancreatic cancer to herbicide exposure has no probative value because it clearly rests on the erroneous presumption that herbicide exposure has been established ("I understand [the Veteran] has an Agent Orange exposure"). As explained above, the Veteran did not serve in Vietnam, so exposure to Agent Orange is not presumed, and exposure in an area outside Vietnam has not been objectively demonstrated. Because the opinion of Dr. AFR is built on an erroneous premise, it is not probative. See Madden v. Brown, 125 F.3d 1447, 1481 (Fed. Cir. 1997) (the Board has "the authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). To the degree that Dr. AFR appears to link herbicide exposure to pancreatic cancer through intermediary diabetes, the Board simply notes the Veteran was not service-connected for diabetes; the association posed by Dr. AFR is accordingly irrelevant to the issue under appeal. The Board accordingly finds at this point that service connection for cause of death based on herbicide exposure cannot be considered because such exposure during service has not been demonstrated. Having found that the Veteran's death was not materially caused by exposure to Agent Orange exposure during service, the Board turns to the appellant's other theory, i.e. that the fatal pancreatic cancer was caused by alcohol abuse secondary to the service-connected PTSD. Review of the file shows the Veteran has been service-connected for PTSD effective from August 1995. The file contains numerous VA and private psychiatric examination reports and treatment notes, but none of those reports associates alcohol or other substance abuse with the service-connected PTSD. Pancreatitis was identified in May 2001 by Dr. AFR when the Veteran presented with severe abdominal pain. Dr. AFR noted the Veteran had a history of obesity, diabetes, erectile dysfunction and prostate enlargement and that he drank about a case per week and perhaps significantly more. Dr. AFR also noted the Veteran's current pancreatitis did not appear to have any evidence of biliary pathology and was likely alcoholic pancreatitis. An April 2002 VA treatment note stated the Veteran reported having stopped drinking one year previously, although the clinical history cited "history of alcohol abuse." In May 2002 the Veteran presented to Dr. AFR with a fairly severe upper abdominal bleed. Endoscopy revealed the presence of adenocarcinoma. Treatment options were discussed but minimal interventions were available. Hospice was arranged, and the Veteran died in June 2002. VA outpatient clinic notes in January 2003 showed the appellant called to report the Veteran had been an alcoholic and had abused his prescription drugs. The appellant solicited help in filing a VA claim for survivor benefits. In January 2003 Dr. AFR submitted a letter asserting it is highly likely the Veteran's death was directly related to PTSD in that he had multiple chemical dependencies and alcohol-related problems, all of which had been documented as directly related to PTSD. The file was reviewed in June 2010 by a VA Doctor of Osteopathy (DO) who noted the opinion of Dr. AFR cited above as well as clinical treatment records. The VA reviewer noted that pancreatic cancer is the fourth leading cause of death among both sexes, comprising six percent of all cancer-related deaths. In regard to etiology, it is estimated that 40 percent of pancreatic cancer cases are sporadic in nature; another 30 percent are related to smoking; 20 percent may be associated with dietary factors; and, 5-10 percent are hereditary in nature. Less than 5 percent of all pancreatic cancers are related to underlying chronic pancreatitis, with smoking being the most common environmental risk for pancreatic carcinoma. People who smoke have at least a twofold increased risk for pancreatic carcinoma, while alcohol consumption does not appear to be an independent risk factor for pancreatic cancer unless it is associated with chronic pancreatitis. Obesity and diabetes mellitus are associated with higher incidence of pancreatic cancer. Finally, chronic pancreatitis of longstanding duration has been shown to be a risk factor for the development of pancreatic cancer, with the risk increasing linearly over time with 4 percent of patients having chronic pancreatitis for 20 years duration developing pancreatic cancer, while 5-10 percent of patients with pancreatic carcinoma have some genetic predisposition to the disease. Based on his review of the chart the VA reviewer stated the Veteran's alcoholism and substance abuse did not likely cause or contribute materially and substantially to cause the Veteran's pancreatic cancer, and thereby his death. The reviewer noted the greatest risk factors appear to be diabetes, random chance, smoking and dietary factors. The reviewer also noted the Veteran's pancreatitis had been identified just one year prior to the discovery of cancer. Review of the evidence above shows conflicting medical opinion regarding a relationship between the service-connected PTSD and cause of death, with Dr. AFR supporting such a relationship and the VA reviewer expressing a contrary opinion. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As noted above, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri, 4 Vet. App. 467, 470-71. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Also, greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether or not (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has expressly declined to adopt a rule that accords greater weight to the opinion of the veteran's treating physician over a VA or other physician. Winsett v. West, 11 Vet. App. 420 (1998); Chisem v. Brown, 4 Vet. App. 169, 176 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). In this case, the Board finds the opinion of the VA reviewer to be more probative than that of Dr. AFR, for the reasons cited below. First, Dr. AFR referred to "the fact that [the Veteran] had multiple chemical dependencies and alcohol-related problems, all of which have been documented as directly related to his post-traumatic stress disorder." In fact, careful review of the claims file, to include VA and private psychiatric treatment records, does not reveal any documented chemical dependencies, and the only references to an alcohol-related problem are an August 1999 VA Mental Health Center note in which the Veteran professed to drinking a six-pack per day to help him sleep and the April 2002 VA treatment note showing history of alcohol abuse. There is certainly no "documentation" of chemical or alcohol problems being "directly associated" with PTSD. An examination that relies on an inaccurate history is inadequate for rating purposes. West v. Brown, 7 Vet. App. 70, 78 (1994). Second, the VA reviewer had the advantage of access to the entire claims file, to include the correspondence and office notes of Dr. AFR, while Dr. AFR apparently had only his own treatment notes for reference. The VA reviewer also provided a very thorough clinical rationale for his opinion, while the opinion of Dr. AFR is so cursory as to be conclusory; a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998); Hernandez-Toyens, 11 Vet. App. 379, 382. The VA reviewer's broader base of research and more thorough rationale make his opinion more probative than that of Dr. AFR. Prejean, 13 Vet. App. 444, 448-49; Gabrielson, 7 Vet. App. 36, 40. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence of record to include correspondence from the appellant and statements made by the Veteran to medical providers during his lifetime. The Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). In this case, lay evidence is offered to show the Veteran was exposed to Agent Orange via body bags that had been shipped from Vietnam, and also to assert a relationship between pancreatic cancer and service or a service-connected disability. The Veteran was competent to report events during service, to include his duties handling casualties from Vietnam (indeed, service connection for PTSD was granted based on such duties). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. 498. The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case the Board finds the Veteran's assertion of exposure to Agent Orange via contact with body bags from Vietnam to be not credible because the Veteran did not explain the basis for such belief. The Veteran never asserted that he saw, smelled, touched or otherwise detected any liquid or powdery residue suspicious of being Agent Orange; given that the Veteran was not asserting an observation made by his own senses his conclusion is beyond the competency of a lay witness and is not credible. The Veteran, and later the present appellant, appear to have been expressing a belief that any article coming from Vietnam must be presumptively contaminated, but they offered no objective evidence to support such an assertion. To the degree that the lay evidence presented by the appellant expresses her personal opinion regarding the etiology of the Veteran's pancreatic cancer, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). As explained above, the Board has found the most probative medical evidence of records shows there is no causal relationship between the Veteran's pancreatic cancer and service. In sum, the Board has found the Veteran's death was not etiologically related to herbicide exposure in service or to the service-connected PTSD. Accordingly, the criteria for service connection for cause of death are not met and that claim must be denied. Because the Veteran did not either have permanent total disability at the time of his death or die because of a service-connected disability the claim for DEA must also be denied. The evidence in this case preponderates against the claim and the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DEA under Chapter 35, Title 38, United States Code ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs