Citation Nr: 1300608 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-07 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to July 1971, including service in the Republic of Vietnam. He died in August 1991, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In January 2011, the appellant submitted additional evidence with a waiver of AOJ consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. In September 2010, the Veteran's representative submitted a medical opinion. The representative wrote that this "new and material evidence" was submitted in hope that the RO would grant the benefits based on "a CUE." The issue of clear and unmistakable error in a prior decision is not raised unless there is a specific allegation of such error. Fugo v. Brown, 6 Vet. App. 40, 43-4 (1993). In this case the representative did not make any specific allegation of error, and her statement shows that she believed the evidence she was submitting was "new and material evidence" and not evidence of clear and unmistakable error in a prior decision. In August 2012, the Board requested an opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in October 2012. In October 2012, the Board informed the appellant that it had requested a specialist's opinion in conjunction with the adjudication of her appeal, provided her a copy of that opinion, and indicated that she was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. No further evidence or argument was received within those 60 days. FINDINGS OF FACT 1. In an unappealed decision issued in November 1996, the RO denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death; a notice of disagreement or new and material evidence was not received within one year of the notice of that decision. 2. Evidence added to the record more than one year after notice of the final November 1996 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for the cause of the Veteran's death. 3. The Veteran died in August 1991. 4. The cause of the Veteran's death was cardiorespiratory failure due to or as a consequence of metastatic melanoma with liver involvement, due to or as a consequence of renal insufficiency. 5. Metastatic melanoma with liver involvement, and renal insufficiency did not manifest during service or within one year of separation from service, and are not shown to be causally related to service or proximately due to or the result of a service-connected disease or injury. 6. The Veteran's service-connected malaria did not cause or hasten his death, or contribute substantially or materially to result in his death. CONCLUSIONS OF LAW 1. The November 1996 RO decision that denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. A service-connected disability did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. § 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board is granting the appellant's request to reopen her claim of entitlement to service connection for the cause of the Veteran's death. As such, no discussion of VA's duty to notify and assist with respect to the request to reopen is necessary. VA has a duty to notify an appellant of the information and evidence necessary to substantiate the claims submitted and the division of responsibilities in obtaining evidence, and to assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 5103(a) notice 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, 352-53 (2007). By an April 2009 letter, the appellant was notified of the evidence necessary to substantiate her claim. She was told what information that she needed to provide, and what information and evidence that VA would attempt to obtain. The April 2009 letter also identified the disorder for which the Veteran was service-connected at the time of his death. Thus, the Board finds that the notification requirements of the VCAA have been satisfied. The VCAA also requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. An adequate VHA medical opinion, dated October 2012, has also been obtained. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no indication of any additional, relevant records that the RO failed to obtain. Further, the appellant was allowed sufficient time (i.e., 60 days) to submit additional argument and evidence following the most recent VA medical opinion that was provided in October 2012, but did not do so. Therefore, the Board finds the duties to notify and assist have been fulfilled and no further action is necessary under the VCAA. II. New and Material Evidence As an initial matter, the Board finds that the appellant did not file a notice of disagreement with the November 1996 rating decision, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the November 1996 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105. A previously denied claim will be reopened if the claimant submits new and material evidence. 38 U.S.C.A. § 5108, 38 C.F.R. § 3.156(a). If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. New evidence is defined as evidence not previously submitted to agency decision makers, and material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Board finds that the appellant has submitted new and material evidence sufficient to reopen her claim. The appellant's claim was initially denied in November 1996 because the RO found that the available scientific and medical evidence does not support the conclusion that the condition that was the cause of the Veteran's death is associated with herbicide exposure, and there is no other basis for service connection for the cause of the Veteran's death. Since November 1996, new evidence has been added to the claims file, including a speculative December 2009 opinion from a private physician, C.M.H.; medical treatise evidence, submitted in February 2010; and statements made by the appellant. The speculative December 2009 opinion expressly "raises the possibility of a causal relationship between [Agent Orange] and the [Veteran's] cancer." Although the December 2009 private physician's statements did not conclusively link the Veteran's cause of death to his exposure to herbicides during active service, when her letter is read in concert with the appellant's statements, they at least suggest that there is a nexus between his cause of death and his active service. As this evidence was not available at the time of the initial November 1996 denial, it is new. As it regards the reason for that denial, it is also material. Accordingly, the Board finds that the appellant has submitted new and material evidence sufficient to warrant reopening the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. III. Cause of Death The RO has adjudicated the appellant's claim on the merits; hence, the Board may consider the claim on this basis without prejudice to the appellant. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993). Dependency and indemnity compensation is available to a surviving spouse who can establish, among other things that the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310. Service connection for the cause of the Veteran's death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312 (a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110 and 1112. 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 is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. Service connection for the cause of a Veteran's death may also be demonstrated by showing that the Veteran's death was caused by a disability of service origin. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements of establishing service connection may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The appellant contended in her August 2008 claim and elsewhere that the Veteran's exposure to herbicides during his service in Vietnam caused or contributed to his death. She specifically asserts that it caused the fatal melanoma. The Veteran served in the Republic of Vietnam from September 18, 1969 to September 14, 1970. Therefore, and in the absence of affirmative evidence to the contrary, he is presumed to have been exposed to herbicides during his Vietnam service. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii). Melanoma is not among the diseases subject to presumptive service connection on the basis of herbicide exposure. 38 C.F.R. § 3.309(e). Hence service connection would not be presumed as due to such exposure. The appellant could; however, establish service connection with direct evidence that the disease was the result of herbicide exposure or under an alternate theory of entitlement. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Service connection for certain chronic diseases, including cardiovascular renal disease and malignant tumors may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). However, that presumption is inapplicable to this case because there is no evidence or allegation that cardiovascular renal disease or melanoma was present in service or manifest to a compensable degree within one year of his July 1971 separation from service. The Veteran died in August 1991. The death certificate lists the cause of death as cardiorespiratory failure due to or as a consequence of metastatic melanoma with liver involvement, due to or as a consequence of renal insufficiency. At the time of the Veteran's death, service connection was not in effect for cardiorespiratory failure, metastatic melanoma with liver involvement, or renal insufficiency. Service connection was in effect for malaria at a noncompensable rate at the time of the Veteran's death, but there is no competent evidence of record linking his service-connected malaria to the cause of his death. The existence of the Veteran's cardiorespiratory failure, metastatic melanoma with liver involvement, and renal insufficiency disabilities at the time of his death are established by the competent medical diagnosis of the physician who signed his August 1991 death certificate and are consistent with the contemporaneous treatment records. The Veteran's exposure to herbicides is presumed. Accordingly an in-service injury is demonstrated. The remaining question is whether the evidence establishes a link between the conditions that caused his death and herbicide exposure or other events in service. The Veteran's service treatment records include no complaints, diagnosis, or treatment of metastatic melanoma with liver involvement, or renal insufficiency. In a May 1971 Report of Medical History at separation from service, the Veteran checked boxes indicating that he did not have, and had never had, shortness of breath; pain or pressure in his chest; palpitation or a pounding heart; liver trouble; or any tumor, growth, cyst, or cancer. Additionally, in a May 1971 Report of Medical Examination at separation from service, a clinician found that the Veteran's lungs, chest, and heart were normal, and did not find any cardiorespiratory failure, metastatic melanoma with liver involvement, or renal insufficiency. Notwithstanding the foregoing, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board considers this element coincident with the element of nexus between the claimed in-service disease or injury and the present disability. The appellant has asserted in a March 2009 statement that the Veteran's melanoma resulted from exposure to herbicides in service. The appellant has submitted the following evidence to support her claim: her opinion, a December 2009 statement from Dr. C.M.H., and medical treatise evidence submitted in February 2010. The appellant's lay opinion regarding the nexus between the Veteran's causes of death and Agent Orange is entitled to no probative weight because it is not competent. A layperson is competent to report on the onset and continuity of symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (an appellant is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, none of those situations apply, as the appellant is not competent to identify cardiorespiratory failure, metastatic melanoma with liver involvement, or renal insufficiency; she is not reporting a contemporaneous medical diagnosis; and she did not describe the symptoms at the time, later supported by a medical professional. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Because the Veteran's metastatic melanoma with liver involvement, and renal insufficiency were complex disorders requiring the interpretation of medical testing, the appellant is not competent to provide an opinion as to their etiology or the interaction between them and the herbicides to which the Veteran was exposed in service. The appellant also submitted a portion of a medical text that discusses possible factors influencing the prognosis for choroidal melanoma. It does not discuss the causes of melanoma; much less link the disease to herbicide exposure. This text provides no evidence supporting a link between melanoma and herbicides. The appellant also submitted, as an attachment to a medical statement, a portion of the Veterans and Agent Orange Update 2008, from the National Academy of Sciences (NAS) in which it was concluded that the evidence was inadequate or insufficient to determine whether there was an association between herbicides and melanoma. See 75 Fed. Reg. 81,333-4 (Dec. 27, 2010). The NAS reached the same conclusion in its Agent Orange Update 2010. See 77 Fed. Reg. 47927 (Aug. 10, 2012). The NAS findings do not show that it is at least as likely as not that there is a link between melanoma exposure and service. Indeed, VA has interpreted the NAS findings as failing to provide such evidence. Id. On their face, the NAS findings do not provide any positive evidence of a link between herbicides and melanoma. This evidence is; therefore of little probative weight. The NAS conclusion was attached to the December 2009 statement from Dr. C.M.H. Dr. C.M.H. wrote that: [T]he question of a possible epitheliod cell nevus certainly raises the possibility of a causal relationship between [Agent Orange] and the cancer....If, indeed, the cancer was a mixed cell melanoma of the iris, with subsequent metastasis to the liver, there is inadequate or insufficient evidence to support a causal relationship (pg 297, Veterans and Agent Orange, Update 2008, Institute of Medicine). I believe some consideration should be given to providing benefits for [the Veteran's] son. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, Dr. C.M.H.'s opinion discussed the "possibility of a causal relationship between [Agent Orange] and the cancer," and, as such, is insufficient to show medical nexus. In light of Dr. C.M.H.'s speculative opinion, the Board sought clarification from a medical expert through VHA as to the following questions: (1) What is the proper diagnosis of the Veteran's fatal cancer? (2) Is it at least as likely as not that the Veteran's fatal cancer, however diagnosed, incurred in, caused or aggravated by his presumed exposure to Agent Orange while serving in Vietnam?, and (3) Is it at least as likely as not that the Veteran's death was otherwise related to a disease or injury of service origin, i.e., is it at least as likely as not that a disease or injury of service origin contribute substantially and materially to the cause of the Veteran's death? In October 2012, a VHA medical expert responded: The diagnosis is malignant melanoma of the eye, based on a biopsy interpretation and subsequent expert pathology opinions reviewing the enucleated eye specimen. The consideration of the presence of "epithelioid" cells in this melanoma in no way changes this diagnosis to another cancer type. The use of the term "epithelioid" in other types of cancer, including some soft tissue tumors, in no way creates an equivalence with these other tumor types. The patient had a malignant melanoma, with metastatic disease subsequently developing, and resulting in death of the patient.... There is no known association between Agent Orange and melanoma to the best of my knowledge and belief.... The patient died of well documented malignant melanoma. There is no evidence to support the claim that the death from metastatic melanoma in this patient was related to disease of service origin. No such evidence is presented in the medical record, in other medical literature, or in the list of diseases acknowledged by the VA to be associated with Agent Orange used in the Vietnam era. Dr. C.M.H. in a report dated December 2009, reviewed the findings in this case. She stated that ".....the question of a possible epithelioid cell nevus certainly raises the possibility of a causal relationship between [Agent Orange] and cancer." It is entirely unclear how consideration of an epithelioid cell nevus would raise a possibility of causation by Agent Orange. No such association is acknowledged in the official list of diseases associated with Agent Orange. In any case, this was merely a consideration in the differential diagnosis of the initial biopsy. No such diagnosis of epithelioid cell nevus was ever rendered for this patient by any practitioner. In fact the diagnosis proved to be malignant melanoma (not an epithelioid cell nevus) on examination of the removed entire enucleated eye, and was further confirmed when the patient died of metastatic melanoma. In short, there is no evidence to support the claim that this [Veteran's] death was service connected. [Emphasis in original.] The VHA opinion was provided by the Chief of Pathology and Laboratory Medicine Service at a VA Medical Center. This opinion is not equivocal. It shows that the physician reviewed medical literature, as well as the details of the Veteran's treatment and history. The opinions were supported with clear and well-reasoned rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). For these reasons, the VHA opinion is more probative than that of Dr. C.M.H. There is no additional competent evidence linking the causes of the Veteran's death to service or a service connected disease or disability. .The preponderance of the evidence is; therefore, against finding that a service-connected disability caused or materially contributed to the Veteran's death. Reasonable doubt does not arise and the claim is denied. ORDER The service connection claim for the cause of the Veteran's death is reopened; to this extent, the appeal is granted. Service connection for the cause of the Veteran's death is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs