Citation Nr: 1126495 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 10-06 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. 3. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Robert Walsh, attorney ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. He died in May 2005. The appellant is advancing her appeal as the Veteran's widow. This matter comes to the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The Veteran's certificate of death indicates that he died in May 2005, at the age of 56; the causes of death are listed as "metastatic adenocarcinoma involving liver, primary not fully determined." 2. During the Veteran's lifetime, service connection was not in effect for any disabilities. 3. The Veteran's cause of death is not related to his service. 4. At the time of his death, the Veteran did not have a pending claim for VA benefits. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.1(k), 3.5(a), 3.303, 3.312 (2010). 2. The requirements for Dependency and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22, 3.102, 3.159 (2010). 3. Entitlement to accrued benefits is not warranted as a matter of law. 38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.1000(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Cause of Death The appellant argues that service connection for the cause of the Veteran's death is warranted. She essentially asserts that the Veteran's cause of death is related to exposure to Agent Orange sustained during his service in Vietnam. See e.g., appellant's representative's statement, received in March 2010. She asserts that the Veteran began receiving treatment for prostate symptoms within two years of separation from service, that he had prostate symptoms for the last ten years of his life, and that his cancer is more properly characterized as "cancer unknown" (as opposed to liver cancer). See appellant's statement, received in April 2009. In February 2008, the appellant filed claims for service connection for the cause of the Veteran's death, and entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1318, and a claim for accrued benefits. In October 2008, the RO denied the claims. The appellant has appealed. For a grant of service connection for the cause of death, pertinent regulations require a showing that either the fatal disease was incurred in or aggravated by service or, in some instances, was manifest to a compensable degree within one year of service discharge. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In the absence of such evidence, the regulations require a showing that a service- connected disability caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.310(a), 3.312. With respect to the principal cause of death, VA regulations provide that a "service-connected disability will be considered as the principal cause of death when such 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 is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312. 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. Id. Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Id. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Service connection may be granted on the basis of a post-service initial diagnosis of a disease when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." 38 C.F.R. § 3.303(d). Service connection may also be granted for tumors, malignant, or of the brain or spinal cord or peripheral nerves, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Disease associated with exposure to certain herbicide agents will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.309, see also 38 C.F.R. § 3.307, Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116. Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's discharge (DD Form 214) indicates that he served in Vietnam. Therefore, duty in the Republic of Vietnam is shown for the purposes of the regulation governing the presumption of service connection for certain diseases due to herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309. The Veteran's service treatment reports are not associated with the claims file. In a memorandum, dated in October 2008, the RO determined that the Veteran's service treatment reports were not available, and that any additional attempts to obtain them would be futile. See 38 C.F.R. § 3.159(d) (2010). During the Veteran's lifetime, service connection was not in effect for any disabilities. In this regard, in March 2004, the RO denied a claim for service connection for "prostatitis (benign prostatic hypertrophy) and adenocarcinoma of the liver." There was no appeal and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2009). The Veteran's certificate of death indicates that he died in May 2005, at the age of 56; the causes of death are listed as "metastatic adenocarcinoma involving liver, primary not fully determined." The post-service medical evidence consists of non-VA reports, dated between 1973 and 2003. This evidence shows that the Veteran began receiving treatment for urinary symptoms in 2000, with diagnoses of UTI (urinary tract infection) and prostatitis. A statement from E.H., M.D., and P.J.D., M.D., dated in August 2003, shows that the Veteran was noted to have "pancreatic vs. liver cancer." An August 2003 report contains diagnoses of "adenocarcinoma in liver," and history of prostatitis. The Board has determined that the claim must be denied. The death certificate shows that the cause of the Veteran's death was "metastatic adenocarcinoma involving liver, primary not fully determined." The Veteran's service treatment reports are not available, and there is no assertion that the Veteran was treated for any relevant symptoms, or diagnosed with any relevant disability, during service. The earliest relevant post-service medical evidence is dated no earlier than 2000. This is approximately 30 years after separation from service. This lengthy period without treatment is evidence that there was not a continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, there is no competent evidence showing that the Veteran's cause of death is related to his service. There is no medical evidence to show that a malignant tumor was manifest to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Although the Veteran is shown to have served in Vietnam, and is therefore presumed to have been exposed to Agent Orange, there is no competent evidence to show that his cause of death is related to such exposure, Combee, and the applicable law does not include the cause of death, as stated on the Veteran's certificate of death, as a condition for which presumptive service connection may be granted on this basis. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In this regard, the Board points out that an October 2000 report noted "suspected prostate cancer," and that prostate cancer is presumptively related to exposure to Agent Orange. Id. However, the Veteran was not found to have prostate cancer after a considerable amount of additional testing, and there is no competent evidence of record which associates prostate cancer with the cause of the Veteran's death. In summary, the evidence does not show that the Veteran's cause of death is related to his service, and the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. Id. Accordingly, the claim for service connection for the cause of the Veteran's death must be denied. With respect to the appellant's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board can weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The issue on appeal is based on the contention that the Veteran's cause of death was related to his service, which ended in 1970. The Board finds that the lay testimony is insufficiently probative to warrant a grant of the claim. The appellant does not have the requisite skills, knowledge, or training, to be competent to provide a diagnosis of adenocarcinoma, or to state whether this condition was caused or aggravated by the Veteran's service, to include as due to exposure to Agent Orange. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this case, the Veteran's service treatment records are not available. The post-service medical records do not show any relevant treatment prior to 2000, at the earliest, and there is no competent evidence of a nexus between the Veteran's cause of death and his service. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the appellant's contentions to the effect that the Veteran's cause of death is related to his service. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Dependency and Indemnity Compensation (DIC) The appellant argues that entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318 has been established. Where a veteran's death is not determined to be service-connected, a surviving spouse may still be entitled to benefits. Under 38 U.S.C.A. § 1318(a), benefits are payable to the surviving spouse of a "deceased veteran" in the same manner as if the death were service connected. A "deceased veteran" is a veteran who dies not as the result of the veteran's own willful misconduct, and who either was in receipt of compensation, or for any reason was not in receipt of but would have been entitled to receive compensation, at the time of death for service-connected disabilities rated totally disabling. The service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death; or continuously rated totally disabling for at least five years from the date of the veteran's separation from service. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. The total rating may be schedular or based on unemployability. Id. In this case, service connection was not in effect for any disabilities at the time of the Veteran's death, therefore, he is not shown to have continuously been rated totally disabled for ten or more years immediately preceding his death. As such, the appellant's claim must be denied for lack of legal merit. See Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); accord Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir. 1995). III. Accrued Benefits With regard to the appellant's claim for accrued benefits, they are defined as periodic monetary benefits to which an individual was entitled at death based on evidence in the file at death and due and unpaid for a period not to exceed two years prior to the last date of entitlement (i.e., the veteran's death). 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). The veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). In addition, an application for accrued benefits must be filed within 1 year after the date of death. 38 C.F.R. § 3.1000(c). In this case, at the time of the Veteran's death in 2005, service connection was not in effect for any disabilities. In this decision, the Board has denied the appellant's claim for service connection for the cause of the Veteran's death. In February 2008, the appellant filed a claim for accrued benefits. Her claim was therefore not filed within one year of the date of the Veteran's death. See 38 U.S.C.A. § 5121(c). In addition, the evidence does not show that the Veteran had periodic monetary benefits at the time of his death which were due and unpaid. See 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). Furthermore, the Veteran did not have a claim pending at the time of his death. As the Veteran had no periodic monetary benefits at the time of his death which were due and unpaid, and as the Veteran did not have a claim pending at time of death, the appellant has no claim upon which to derive her application for accrued benefits. See Jones; Zevalkink v. Brown, 6 Vet. App. 483, 488 (1994), aff'd 102 F.3d 1236, 1300 (Fed. Cir. 1996); cert. denied 117 S.Ct. 2478 (1997). Based on the foregoing, there are no accrued benefits, and the appellant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). IV. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was accomplished by way of a letter from the RO to the appellant dated in April 2008. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the claim for DIC benefits pursuant to 38 U.S.C.A. § 1318, and accrued benefits, because the application of the law to the undisputed facts is dispositive of these aspects of the appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002); Smith (Claudus) v. Gober, 14 Vet. App. 227 (2000) (VCAA did not affect a Federal statute that prohibited payment of interest on past due benefits), aff'd, 28 F.3d 1384 (Fed. Cir. 2002). However, in Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) expanded the VCAA notice requirements for a DIC claim. In Hupp, the Court held that VA is not relieved of providing section 5103(a) notice merely because the appellant had provided some evidence relevant to each element of his or her claim in his or her application for benefits. The Court held that the section 5103(a) notice must be "responsive to the particular application submitted." The Court further held that when adjudicating a claim for DIC, VA must perform a different analysis depending upon whether a veteran was service-connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(a) notice for a DIC case 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. However, the Hupp Court stated that where (as here) a veteran was not service-connected during his lifetime, these three requirements do not apply. With regard to the claim for service connection for the cause of the Veteran's death, VA also has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. The Board is satisfied that its duty has been met and that all reasonable efforts to develop the record have been made. The Veteran's service treatment reports are not available. The RO has obtained non-VA medical reports. Although an etiological opinion has not been obtained, under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. In this case, at the time of the Veteran's death, service connection was not in effect for any disabilities. The service treatment reports are not available, however, there is no allegation that the Veteran was treated for metastatic adenocarcinoma involving the liver during his service. There are no relevant post-service medical treatment records dated prior to 2000 (a period of about 30 years after separation from service), and there is no competent evidence to show that the Veteran's cause of death is related to his service, to include as due to exposure to Agent Orange. Given the foregoing, the Board finds that the standards of McLendon have not been met. See also 38 C.F.R. § 3.159(c)(4) (2010); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Board therefore finds that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the appellant has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs