Citation Nr: 1112034 Decision Date: 03/25/11 Archive Date: 04/06/11 DOCKET NO. 09-02 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Shabnam Keyvan INTRODUCTION The Veteran had active service from January 1962 to January 1984. He died in November 2007 at the age of 64. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs Regional Office (RO) in Muskogee, Oklahoma. In that decision, the RO denied the issue of entitlement to service connection for the cause of the Veteran's death. In January 2011, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). See 38 U.S.C.A. § 7109; 38 C.F.R. § 20.901(a) (2009). The record reflects that the VHA requested the medical opinion from a VA Medical Center (VAMC) and obtained the opinion of a VA medical expert with respect to the medical questions raised in the Board's January 2011 request. The opinion, dated in March 2011, has been received and associated with the Veteran's claims folder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The Veteran's original death certificate shows that he died in November 2007 and that the immediate cause of his demise was metastatic pancreatic carcinoma. 3. At the time of the Veteran's death, service connection had not been established for any disability. 4. The Veteran's metastatic pancreatic cancer has been shown to be related to his conceded in-service herbicide exposure. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the cause of the Veteran's death has been associated with his active duty. 38 U.S.C.A. §§ 1110, 1310 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). During the pendency of the appeal, the United States Court of Appeals for Veterans Claims (Court) held in Hupp v. Nicholson, 21 Vet. App. 342 (2007), that additional notice requirements apply in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. In particular, 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. The Court stated that the content of the notice letter will depend upon the information provided in the claimant's application and that the letter should be "tailored" to be responsive to the details of the application submitted. While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing compliant notice. Nevertheless, in the decision below, the Board is granting the appellant's claim for service connection for the cause of the Veteran's death, and therefore, the benefit sought on appeal is being granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted in the Board's proceeding to issue the following decision. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Analysis 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. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the injury was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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, 1377 (Fed. Cir. 2007) (footnote omitted). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). 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 contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly 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 one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service-connected disabilities or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for the cause of the Veteran's death is warranted. A certificate of death indicates that the Veteran died in November 2007. The immediate cause of his death was metastatic pancreatic carcinoma. At the time of the Veteran's death, service connection had not been established for any disability. However, the appellant has contended that the Veteran's fatal cancer was the result of his in-service exposure to herbicides. In this regard, the Board notes 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 section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. 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) 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, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). According to available evidence, the Veteran's DD-214 reflects that he was awarded a number of decorations, medals, badges and campaign ribbons, to include a Purple Heart (First Oak Leaf Cluster), the Vietnam Service Medal, the Vietnam Campaign Medal with 60 Device, and the Combat Infantry Badge. His personnel records reflect that he served in Vietnam from July 1968 to July 1969. As such, the Board finds that the Veteran served in the Republic of Vietnam during the Vietnam era, and is therefore presumed to have been exposed to certain herbicide agents, including Agent Orange, during service. The Board acknowledges that the Veteran's fatal cancer (metastatic pancreatic cancer) is not on the list of diseases that VA has associated with Agent Orange exposure. In any event, however, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e) (2010). See also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange.) A review of the claims file reflects that the Veteran's service treatment records are clear for any complaints of, treatment for, or diagnoses of pancreatic carcinoma or any type of cancerous growth. The report of his November 1983 separation examination shows that his skin and lymphatic system were in normal condition. Indeed, at that time, the Veteran denied having had any tumor, growth, cyst or cancer. As previously discussed above, the primary cause of the Veteran's demise was metastatic pancreatic cancer. A November 2007 autopsy report reflects that the Veteran's fatal cancer was also present in his lungs, heart, liver, pancreas, multiple lymph nodes of his abdomen and thorax, and the omentum of his large intestine. Based on immunohistochemical stains, the tumor was determined to be "epithelial in origin (carcinoma)." However, the pathology of the cancer could not be elucidated upon the performance of numerous immunohistochemical stains. Accordingly, the November 2007 autopsy report concluded that the Veteran died of "multisystem organ failure secondary to widely metastatic hemorrhagic neoplasm best categorized as carcinoma of no specific type." The remainder of the Veteran's records are absent for any medical evidence documenting his cancerous condition. In a January 2009 statement, the appellant indicated that the Veteran refused to seek medical treatment for any health-related condition other than gout or tonsillitis, because he believed "it would look bad on his military records." Based on the appellant's assertions, at the time the Veteran first enlisted in the military, it was looked down upon for men to seek any type of medical treatment. According to her, there was an underlying sentiment at that time that ". . . [men] had to be tough." As previously discussed above, the Board referred this case to the VHA to obtain a medical opinion from an appropriate health care professional. The Board requested that the VHA arrange for an oncologist to provide a medical advisory opinion regarding the likelihood that the cause of the Veteran's death, characterized as metastatic pancreatic cancer resulting in multisystem organ failure, was the result of his conceded in-service exposure to herbicides, to include Agent Orange, or was otherwise etiologically related to active service. The record reflects that the VHA sent the request out to a VAMC to obtain an opinion from a VA medical expert. The opinion was provided by A.Z., M.D., in March 2011. In the opinion, Dr. Z noted that he had reviewed the Veteran's available medical records. In discussing the Veteran's November 2007 autopsy results, Dr. Z stated that, while the immunohistochemical stains showed an epithelial origin, "the primary site of origin could not be identified and remains speculative." Based on his review of the medical evidence and information provided, however, Dr. Z. ultimately concluded that it is at least as likely as not that the cause of the Veteran's death was the result of in-service exposure to herbicides. Dr. Z. did not provide a rationale or explanation as to how he arrived at this conclusion. However, Dr. Z did have an opportunity to review the Veteran's records in full, and specifically noted that there were no clinical records available describing the course of the Veteran's disease. Notwithstanding the lack of medical records documenting the Veteran's cancerous condition, the course of his disease, and any treatment he may have received for it, Dr. Z., upon review of the available service treatment records, autopsy results and lay statements, found that there was sufficient evidence to establish a relationship between the Veteran's cause of death and his in-service herbicide exposure. As such, the competent medical evidence of record relates the Veteran's cause of death to his military service. In a claim for VA benefits, "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert, 1 Vet. App. at 54. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. Given that the medical opinion in this case is favorable to the claim and that there is no medical evidence to refute the positive link between the cause of the Veteran's death and his in-service herbicide exposure, the Board concludes that a remand is not necessary here to obtain another medical opinion to decide the claim as the medical opinion of record is sufficient for that purpose. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The Board also observes that the Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. Id. Based on the foregoing, the Board finds that there is reasonable doubt as to whether the Veteran developed metastatic pancreatic cancer as a result of herbicide exposure in service. To the extent that there is any reasonable doubt, that doubt will be resolved in the appellant's favor. Accordingly, the Board concludes that service connection for the cause of the Veteran's death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs