Citation Nr: 1124944 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 07-12 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to burial benefits on the basis of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran had active service from January 1958 to October 1985. The Veteran died in June 2005, and the appellant in this case is his surviving spouse. This matter came before the Board of Veterans' Appeals (Board) on appeal from two July 2006 rating decisions by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). This case was previously before the Board in May 2010. At that time, the Board denied each of the appellant's claims. The appellant appealed this decision to the Court of Appeals for Veterans Claims (Court). In January 2011, the Court approved the parties' Joint Motion for Remand. That Joint Motion identified only one problem with the Board's previous decision: that the Board misapplied the "relevant statutory provision for its consideration of whether [the appellant] is entitled to a VA medical opinion" in this claim. The Board recognizes that where a case has been remanded to the Board, the order of the Court constitutes the law of the case, and the Board is bound to follow the Court's mandate. See Winslow v. Brown, 8 Vet. App. 469, 472 (1996). Accordingly, the Board addresses the issue raised by the Joint Motion in Part III of the Reasons and Bases discussion below. Given, however, that the parties identified no other problem with the Board's previous decision, the Board shall make no other substantive change to its earlier promulgated decision. FINDINGS OF FACT 1. The Veteran died in June 2005; the Veteran's death certificate lists his immediate cause of death as metastatic esophageal carcinoma and lists malnutrition, hypertension, and tobacco use as other conditions leading to the cause of death. 2. The Veteran was not service-connected for any disabilities during his lifetime. 3. There is no competent evidence linking any disability associated with the Veteran's death to service. 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, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309; 3.312, 3.313 (2010). 2. The criteria for entitlement to burial benefits based upon a service-connected death are not met. 38 U.S.C.A. § 2307 (West 2002); 38 C.F.R. §§ 3.312, 3.1600, 3.1601 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to Service Connection for the Cause of the Veteran's Death Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 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 the contributory cause of death. 38 C.F.R. § 3.312(a). The issues 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). Again, the Veteran died in June 2005, and the appellant in this case is his surviving spouse. The appellant contends that the Veteran's death is causally related to his active military service. Specifically, the appellant contends that the Veteran developed metastatic esophageal carcinoma as a result of his exposure to Agent Orange. As the Board finds no evidence that the Veteran's death is causally related to his active service, however, it shall deny the claim for the reasons that follow. As indicated, the appellant contends that the Veteran is entitled to service connection for the metastatic esophageal carcinoma that caused his death because the Veteran was exposed to Agent Orange during his service in Vietnam. VA law and regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2009); 38 C.F.R. § 3.309(e) (2010). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed to herbicides during such service 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) (2010). In the present case the Veteran's service personnel records indicate that he served in the Republic of Vietnam from November 1965 to September 1966. Exposure to Agent Orange is therefore presumed. Presumptive service connection is not warranted for the Veteran's metastatic esophageal carcinoma, however, as this type of cancer is not one of the diseases listed in 38 C.F.R. § 3.309(e) which qualifies for presumptive service connection. That section specifies that VA may grant service connection on the basis of presumed herbicide exposure for a finite list of diseases including prostate cancer and respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), but metastatic esophageal carcinoma is not included on this list. 38 C.F.R. § 3.309(e). Indeed, the Secretary has determined that gastrointestinal tumors, including tumors of the esophagus, are not associated with exposure to herbicides. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32395 (June 12, 2007). The appellant asserts that while esophageal cancer may not be included among those disorders subject to the presumption, she contends that his esophagus is so interconnected to the Veteran's respiratory system that it should enjoy the same presumption. In a November 2006 letter, for example, the appellant stated that the Veteran's trachea and larynx were affected by his esophageal carcinoma. The Board disagrees with the appellant's contentions. First, the Board notes that as the esophagus is part of the digestive system, it is distinct from the enumerated cancers of the respiratory system. See Tatum v. Shinseki, 23 Vet. App. 152, 157 n. 5 (2009) (quoting Dorland's Illustrated Medical Dictionary 655-56 (31st ed. 2007) (defining esophagus as "the musculomembranous passage extending down from the pharynx and emptying into the stomach at the cardiac opening, passing through the diaphragm at the esophageal hiatus."). Second, the appellant has presented no evidence other than her own statements to support her contention that esophageal cancers should be considered as respiratory cancers. The appellant is not competent to offer her opinions on matters requiring medical expertise, and absent any corroboration, the Board shall not accept her contentions regarding the similarities between digestive and respiratory cancers. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 n. 4 (Fed. Cir. 2007) (In discussing when a layperson may be competent to identify a medical condition, the Federal Circuit stated:"Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Finally, no medical expert has stated that the Veteran's metastatic esophageal carcinoma was related to his Agent Orange exposure. In a November 2006 letter, Dr. Kuss - the doctor who filled out the Veteran's death certificate - stated that he did not know the direct cause of the Veteran's esophageal cancer. The Board's inquiry does not end here, however, as the United States Court of Appeals for the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In other words, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, but must also determine whether his current disability is the result of active service. 38 C.F.R. § 1110; 38 C.F.R. § 3.303(d). The appellant's claim does not satisfy this standard, either. A review of the medical records associated with the claims file shows that the Veteran was not diagnosed as suffering from esophageal cancer until late 2004, almost 20 years after his active service. The Veteran was not diagnosed as suffering from hypertension until 2001, also many years after his active service. The Board again notes Dr. Kuss' letter, stating that he does not know the direct cause of the Veteran's esophageal cancer. Neither records from Dr. Kuss nor records from any other private source indicate that any of the Veteran's disabilities were related to his active service. Indeed, there is no record showing that the Veteran sought service connection or was service connected for any disability following his active service. The Board notes that, in December 2001, the Veteran reported smoking a pack of cigarettes per day for approximately 45 years. The Board also notes that the Veteran's death certificate lists tobacco use as a condition contributing to his death. These facts do not change the Board's analysis, however, as in his November 2006 letter, Dr. Kuss stated that tobacco use was one of the Veteran's known medical conditions. Dr. Kuss further stated that while tobacco use may have been a cofactor in the Veteran's esophageal cancer, it was not known or stated to be the underlying cause. More importantly, for claims filed on or after June 9, 1998, there is an express prohibition against service connection for any disability resulting from injury or disease attributable to the use of tobacco-based products. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2010). As the appellant filed her claim in February 2006, service connection for a disability based upon the Veteran's use of tobacco in service is legally barred. As there is no competent evidence linking any disability associated with the Veteran's death to his active service, the Board concludes that a service connected disease or disability was neither the principal cause, nor a contributing cause, of the veteran's death. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.312. II. Entitlement to Service-Connected Burial Benefits For the purposes of service-connected burial benefits, if a veteran dies as a result of a service-connected disability or disabilities, an amount may be paid toward the veteran's funeral and burial expenses including the cost of transportation of the body to the place of burial. 38 U.S.C.A. § 2307; 38 C.F.R. §§ 3.1600-3.1610. Since the Board has concluded that the Veteran's death was not the result of a service-connected disability, entitlement to burial benefits must be denied. III. Duties to Notify and to Assist Finally, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as amended), 3.326(a) (2010). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the veteran's death, the United States Court of Appeals for Veterans Claims (Court) has held section 5103(a) notice must be tailored to the claim. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The notice should 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. Id. The appellant was not provided with the notice criteria required by Hupp; however, the Board concludes that this error was nonprejudicial, as the decedent was not service-connected for any disabilities prior to his death. See Hupp v. Nicholson, 21 Vet. App. at 354; Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to issuance of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the February 2007 statement of the case. Next, VA has a duty to assist the appellant in the development of her claim. This duty includes assisting her in the procurement of both the Veteran's service treatment records and other pertinent medical records and, when necessary, obtaining a medical opinion. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO obtained the Veteran's service treatment records. The appellant submitted a number of private records concurrent with her claim, and she provided others throughout the appeal period. As noted above, the Court approved a Joint Motion in this case in order that the Board may properly determine whether the appellant is entitled to a VA opinion regarding her claim. In DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the Federal Circuit held that the duty to obtain a medical opinion under 38 U.S.C.A. § 5103(d) is inapplicable to DIC claims because the provision specifically states it is only for "disability compensation." Subsequently, Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), clarified DeLaRosa, indicating that while § 5103(d) is inapplicable to DIC claims, the provision of § 5103A(a)(1) still requires VA to make "reasonable efforts" to provide assistance, to include obtaining a medical opinion. VA is excused from this obligation only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. § 5103A(a)(2) (West 2002). Here, consistent with the statute and case law, the Board finds "no reasonable possibility" that obtaining a VA opinion would help substantiate the claim. Aside from the appellant's bald, unsupported assertions, there is no medical or lay evidence underpinning her arguments. There is no evidence in the claims file or the service treatment records that connect any of the Veteran's causes of death to his active service. The claim before the Board bears a closer resemblance to DeLaRosa than to Wood. In Wood, the Federal Circuit found the Board's misapplication of § 5103A to be harmful error in part because there was a disagreement about the facts of the case and those involving the Veteran's death. 520 F.3d at 1351-52. The Federal Circuit acknowledged in Wood, however, that the error in DeLaRosa was harmless because of the "indisputable lack of competent evidence" supporting the appellant's claim. Id. at 1349 (citing DeLaRosa, 515 F.3d at 1322). Again, the Board has found that there is no competent evidence whatsoever supporting the appellant's contentions that any of the Veteran's causes of death had their onset or are otherwise causally related to his active service. In the absence of such evidence, the Board finds that remanding the claim to obtain a VA medical opinion regarding the Veteran's death has no reasonable possibility of substantiating the claim. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to burial benefits is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs