Citation Nr: 1300404 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 06-25 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active air service from December 1954 to August 1956. The Veteran died on February [redacted], 2005. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In connection with this appeal, the appellant testified at a hearing before the undersigned Veterans Law Judge at the RO in February 2009. A transcript of the hearing is associated with the claims file. This case was previously before the Board in June 2009, at which time it was remanded for additional development. The Board has reviewed the paper claims file and the Virtual VA electronic claims file associated with the Veteran's claim. FINDINGS OF FACT 1. The Veteran died in February 2005 of non-small cell carcinoma of the lungs. 2. At the time of the Veteran's death, service connection was in effect for migraine headaches, rated as 50 percent disabling. 3. Non-small cell carcinoma of the lungs was not present until more than one year after the Veteran's separation from active service and was not etiologically related to the Veteran's active service or his service-connected migraine headaches. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by active service did not cause the Veteran's death or substantially and materially contribute to the Veteran's cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). 2. The criteria for DIC under 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2012). 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. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective-date element of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). When VA receives a detailed claim for Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1310, it must provide a detailed notice to the claimant. Specifically, the notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. 38 U.S.C. § 5103(a) (West 2002); Hupp v. Nicholson, 21 Vet. App. 342 (2007). The record shows that the appellant was mailed a letter in April 2005 advising her of what evidence was needed to substantiate her claim of entitlement to DIC and of the evidence that she should submit and that which VA would obtain on her behalf. In a May 2008 letter, the appellant was provided the additional notice required for DIC claims. In a January 2012 rating decision, the appellant was notified of the retroactive grant of entitlement to service connection for migraine headaches and was notified that they were rated 50 percent. Although the appellant was not provided adequate notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. Bernard v. Brown, 4 Vet. App. 384 (1993). Following the provision of the required notice and the completion of all indicated development, the claims were readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claims would have been different had notice been provided at an earlier time. Overton v. Nicholson, 20 Vet. App. 427 (2006). The Board also finds the appellant has been afforded adequate assistance in response to her claim. The Veteran's service medical records are on file, VA and private treatment notes have been obtained, and the Veteran's death certificate is on file. Neither the appellant nor her representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Additionally, the Board acknowledges that a VA medical opinion has not been obtained in response to the claim of entitlement to service connection for the cause of the Veteran's death. VA is obliged to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service-connected disability, and (4) there is not sufficient medical evidence to make a decision. 38 C.F.R. § 3.159(c)(4) (2012); Charles v. Principi, 16 Vet. App. 370 (2002). There is no competent evidence of record indicating that the Veteran's fatal non-small cell carcinoma of the lungs was related to his active service or his service-connected migraine headaches, or that his service connected migraine headaches played any other causal role in his death. Therefore, the Board finds that the medical evidence currently of record is sufficient to decide the claim and no VA medical opinion is warranted. DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2012). 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 (West 2002); 38 C.F.R. § 3.312 (2012). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that disability was either the principal or a contributory cause of death. The issue involved will be determined by 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) (2012). A service-connected disability will be considered as the principal, or primary, 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) (2012). A contributory cause of death inherently is one not related to the principal cause of death. In determining whether service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312(c)(1) (2012); Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In general, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service- connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2) (2012). If the Veteran's death resulted from non-service-connected causes, DIC benefits will be paid to a Veteran's surviving spouse in the same manner as if the death were service connected (a) if the Veteran's death was not the result of his own willful misconduct and (b) if, at the time of death, the Veteran was receiving or was entitled to receive compensation for a service-connected disability rated totally disabling if (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of the Veteran's discharge or other release from active duty; or (3) the Veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b) (West 2002); 38 C.F.R. § 3.22(a) (2012). The term entitled to receive means that, at the time of death, the Veteran had service-connected disability rated as totally disabling but was not receiving compensation because (1) VA was paying the compensation to the Veteran's dependents; (2) VA was withholding the compensation to offset an indebtedness; (3) the Veteran had applied for compensation but was not receiving total disability compensation due solely to clear and unmistakable error in a VA decision; (4) the Veteran had not waived retired or retirement pay in order to receive compensation; or (5) VA was withholding payments as required by law. 38 C.F.R. § 3.22(b) (2012). An additional method for prevailing on 38 U.S.C.A. § 1318 claims when additional service department records are received that existed at the time of a prior VA decision but were not considered. 38 C.F.R. § 3.22(b) (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record in a case before VA with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for Cause of Death The Veteran's widow has asserted that the Veteran's fatal non-small cell carcinoma of the lungs was related to his service-connected headaches. Specifically, the appellant has stated that the Veteran's service-connected headaches were actually a result of trigeminal neuralgia which was incurred as a result of a traumatic injury to his right eye in a sandstorm during active service. She has indicated that the tumors found in the Veteran's brain were related to his undiagnosed trigeminal neuralgia. The Board notes that at the time of his death, the Veteran had a claim pending for entitlement to service connection for headaches. The adjudication of that claim was completed following the Veteran's death, and service connection was granted retroactively. Therefore, at the time of his death, the Veteran was service-connected for migraine headaches, rated 50 percent disabling. According to the death certificate, the Veteran died of non-small cell carcinoma of the lungs. It was also noted on the death certificate that the Veteran's tobacco use during his life contributed to his death. At the time of his death, service-connection was not in effect for non-small cell carcinoma of the lungs. A review of the service medical records is negative for treatment for or a diagnosis of cancer while the Veteran was in active service, and the evidence does not show any diagnosis of non-small cell carcinoma of the lungs in service or within one year following separation from service. A review of the post-service medical evidence of record shows that in August 2004, the Veteran was seen at the VA Medical Center emergency department for complaints of dizziness and difficulty walking. The Veteran was admitted for treatment with diagnoses of senile cataracts and ataxia with occasional headaches. At that time, the Veteran was afforded a complete oncology workup which revealed non-small cell carcinoma of the lungs and metastatic disease to the brain, specifically the right cerebellum. The Veteran was discharged home to receive further treatment. The Veteran began palliative radiotherapy to the brain and the lung. In December 2004, the Veteran was admitted to the hospital with a massive pulmonary embolism. The Veteran eventually checked out of the hospital against medical advice as he was frustrated with the length of time required to adequately anticoagulate his blood. In January 2005, the Veteran was placed in hospice care. In February 2005, the Veteran was seen at the VA Medical Center for an oncology re-evaluation, which included computed tomography (CT) scans of the head, chest, and abdomen. It was determined that as the Veteran's cancer was asymptomatic and stable, palliative chemotherapy would not be administered and it was recommended he remain in hospice care until he was re-scanned in two months. The Veteran died less than two weeks after that visit. There is no indication from the medical evidence of record that the Veteran's non-small cell carcinoma of the lungs was ever related to his active service or any service-connected disability. Additionally, with respect to the appellant's assertion that the Veteran's service-connected migraine headaches were actually a symptom of trigeminal neuralgia that was related to his active service and subsequently caused tumors of the brain, the Board notes that there is no indication from the medical record that the Veteran had brain cancer that was independent of his lung cancer. The Veteran's cancer diagnosis specifically stated that the tumors of the brain were metastatic brain disease and not a separate cancer. Even if the Veteran's headaches were just a symptom of trigeminal neuralgia that was related to his active service, there is no evidence to support a finding that disability was in any way related to the Veteran's cause of death. The Board notes that there is no competent evidence of record substantiating the appellant's claim that the Veteran's non-small cell carcinoma of the lungs and metastatic brain disease were in anyway related to his active service or his service-connected migraine headaches. While the appellant might sincerely believe that the Veteran's service-connected migraine headaches contributed substantially and materially to the Veteran's death, since the appellant is a layperson without medical training, her opinions concerning those matters requiring medical expertise are of no probative value. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In sum, there is no competent medical evidence of record that the Veteran's non-small cell carcinoma of the lungs was present in service or until many years thereafter, or were related to his service in any way, or that the Veteran's service-connected migraine headaches contributed substantially and materially to his death. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to service connection for the cause of the Veteran's death is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DIC under 38 U.S.C.A. § 1318 Based on the evidence of record, the Board finds that the requirements of 38 U.S.C.A. § 1318 for an award of DIC benefits have not been met. The Veteran died in February 2005. At the time of his death, service connection was in effect for migraine headaches, rated as 50 percent disabling. Therefore, the Board finds that the evidence of record fails to show that the Veteran was rated as totally disabled for a period of at least five years from the date of his discharge or release from active duty or for at least ten years preceding his death Additionally, the evidence does not show, and the appellant does not assert, that the Veteran was a prisoner of war. 38 C.F.R. § 3.22 (2012). Moreover, neither the Veteran, during his lifetime, nor the appellant, has pled clear and unmistakable error (CUE) in any rating actions that would have entitled the Veteran to a total disability rating at any time prior to death. Accordingly, the appellant has not established a valid claim of CUE. Finally, the Board has not identified any service department records in existence at the time of a prior VA decision which were not previously considered by VA and which provide a basis for reconsidering a claim finally decided during the Veteran's lifetime or for awarding a total service-connected disability rating. Accordingly, the Board finds that the appellant is not entitled to DIC benefits under 38 U.S.C.A. § 1318. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC under 38 U.S.C.A. § 1318 is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs