Citation Nr: 1124603 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 09-37 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from November 1966 to September 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of December 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. FINDINGS OF FACT 1. The cause of death was carcinoma of the oral cavity. 2. Carcinoma of the oral cavity did not onset in service and was not related to service. CONCLUSION OF LAW A disease or injury of service origin did not cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice in the context of a DIC claim "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 (2007). The RO provided the appellant pre-adjudication notice by letter dated in September 2008. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Dingess, 19 Vet. App. at 473. VA has obtained service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file, and the appellant has not contended otherwise. The Board notes that new evidence was received in April 2011, and that the claim was not subsequently readjudicated. However, review of the evidence indicates that the argument presented with the evidence is duplicative of arguments previously considered and the "new" evidence, namely the Internet article, is not pertinent to the claim decided herein. 38 C.F.R. §§ 19.37, 20.1304 (2010). The Board acknowledges that an opinion was not obtained. The Board finds an opinion is not needed, however, as the evidence of record is adequate to adjudicate the claim at this time; there is no ambiguity in the record which would be aided by an opinion. Thus, the Board finds VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Service Connection for Cause of Death To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or the contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.303(a), 3.312. 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). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent 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 competent 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); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In August 2005, the Veteran presented for treatment with a history of a rapidly growing mass on the right face and neck, which was associated with dysphagia and weight loss. After examination and review of biopsy results, the Veteran was diagnosed with cancer of the right tonsil. See August and September 2005 VA treatment records. The Veteran died in October 2005. The death certificate and autopsy report indicate that the Veteran's death was the result of squamous cell carcinoma of the oral cavity which metastasized to areas including the lungs, pleura, diaphragm, liver, kidneys, and lymph nodes. See death certificate; October 2005 autopsy report. Prior to his death, the Veteran was not service-connected for any disability. The appellant contends that the Veteran's carcinoma was caused by in-service exposure to herbicides. The Veteran's service records reveal that he served in the Republic of Vietnam. As such, he is presumed to have been exposed to an herbicide agent. See 38 C.F.R. § 3.307 (a)(6)(iii) (2006). VA regulations provide presumptive service connection for certain diseases for veterans shown to be exposed to an herbicide agent during active military service. 38 C.F.R. § 3.309(e). Cancer of the oral cavity or tonsil is not is a disease presumptively associated with exposure to herbicide agents under VA regulations, however, and the Institute of Medicine has determined that there is "inadequate or insufficient evidence to determine [an] association' existed between chemical exposure and cancers of the oral cavity (including lips and tongue) and pharynx (including tonsils)." 72 Fed. Reg. 32396, 32397, 32407 (June 12, 2007). As such, service connection on a presumptive basis is not warranted. The appellant is not precluded from establishing service connection for the cause of the Veteran's death on a direct basis rather than a presumptive one. See Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994). In this case, the competent evidence does not indicate that the Veteran's carcinoma was incurred in service or that it is causally related to service. The service treatment and examination records, to include the September 1968 separation examination report, do not contain any complaint, finding, or treatment suggestive of carcinoma; the carcinoma was not diagnosed until 2005, approximately 27 years after separation from service; and the evidence does not contain any competent evidence which links the carcinoma to service. Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000) (lapse of time is a factor for consideration in deciding a service connection claim). The Board acknowledges that the appellant contends that the Veteran actually had Hodgkin's Disease, which is a presumptive disease. See September 2009 Form 9. However, the evidence, which includes treatment, biopsy, and autopsy reports, contains no medical findings of Hodgkin's Disease, and there is no indication that the appellant is competent to assert that the Veteran actually had Hodgkin's Disease rather than squamous cell carcinoma of the tonsil. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 471 (1994). As a lay person, the appellant is not competent to opine on medical matters such as the etiology of medical disorders. The record does not show, nor does the appellant contend, that she has specialized education, training, or experience that would qualify her to provide an opinion on this matter. Accordingly, the appellant's lay statements are entitled to no probative value. Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997). In this case, the competent evidence clearly and probatively indicates that the Veteran's death was the result of tonsillar cancer which metastasized to other areas and does not indicate that this cancer was the result of herbicide exposure in service or that it onset in service or was otherwise causally related to service. The Board sympathizes with the appellant in the loss of her husband and recognizes his faithful service. However, our decisions must be based on the facts and the weight of those facts in this case is against the claim. The preponderance of evidence is simply against any connection between the Veteran's service, including any herbicide exposure in service, and the cause of the Veteran's death. Consequently, service connection for cause of death must be denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs