Citation Nr: 1303032 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 09-12 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to in-service herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Appellant is the widow of the Veteran, whose active military service extended from May 1968 to April 1970, to include a tour on land in the Republic of Vietnam during the Vietnam era. The Veteran died in November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania which denied the benefit sought on appeal. The Appellant perfected a timely appeal of this issue. The RO in Winston-Salem, North Carolina, currently has jurisdiction over the appeal. The Board observes that a claim of entitlement to service connection for the cause of the Veteran's death was previously denied in a March 2004 rating decision which became final when the Appellant did not perfect an appeal to the Board. In July 2006, the Appellant requested a review of the claim and consideration of entitlement to retroactive benefits. In the July 2007 rating decision, it appears the RO reconsidered the cause of death claim on the merits based on a liberalizing law enacted that created a new evidentiary standard by which a claim of entitlement to service connection for chronic lymphocytic leukemia can be substantiated and the Nehmer v. VA class action suit. See Disease Associated With Exposure to Certain Herbicide Agents: Chronic Lymphocytic Leukemia, 68 Fed. Reg. 59,540 (Oct. 16, 2003). In a March 2009 statement, the Appellant requested a hearing before a Veterans Law Judge (VLJ) of the Board. In a January 2011 letter, she was notified that her hearing had been scheduled for February 2011. In a subsequent February 2011 letter, the Appellant withdrew her request for a hearing, in writing. FINDINGS OF FACT 1. The Veteran died in November 2003 from gastric carcinoma. 2. At the time of the Veteran's death, he was not service-connected for any disabilities. 3. The evidence does not establish that the Veteran's death was causally related to his active military service, to include his presumed in-service herbicide exposure. CONCLUSION OF LAW A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1137, 1310, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.312, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claim. Equal weight is not necessarily accorded to each piece of evidence contained in the record; every item of evidence does not necessarily have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duty to Notify and Assist VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Appellant was not provided the requisite notice during the course of the current appeal. The Board, however, finds that the error is harmless. The Appellant continues to seek benefits for the same claim-service connection for the cause of death of the Veteran. During the course of the Appellant's previous claim, in letters dated in January 2004 and February 2004, the RO provided the Appellant with an explanation of the type of evidence necessary to substantiate her claim, as well as an explanation of what evidence was to be provided by her and what evidence the VA would attempt to obtain on her behalf. Additionally, in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 5103(a) notice must include: (1) a statement of the disorders, 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 disability; and, (3) an explanation of the evidence and information required to substantiate a DIC claim based on a disorder not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). 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 pre-decisional adjudication of the claim prior to providing a section 5103(a)-compliant notice. In this regard, the January 2004 letter informed the Appellant that she should provide "medical evidence that will show a reasonable probability that the condition which contributed to the veteran's death was caused by injury or disease that began during service." The letter further stated that to support a claim for DIC benefits, the evidence must show that the "veteran's service-connected conditions caused or contributed to his death." The letter also informed the Appellant that to establish DIC benefits, the evidence must show that the "veteran died from a service-related injury or disease." Since the Veteran was not service-connected for any disabilities at the time of his death, the first Hupp element does not apply. By the same token, the second Hupp element does not apply, as it is predicated on the Veteran having been service-connected for a disability during his lifetime. Under the third Hupp element, the claimant must be notified of the evidence and information required to substantiate a DIC claim based on a disorder not yet service-connected. The Board finds that the notice provided in the January 2004 letter satisfied the third Hupp element. Hupp, 21 Vet. App. at 352-53. Thus, the Appellant has previously received the requisite notice, and continued to demonstrate actual knowledge of the information and evidence necessary to substantiate her claim by way of the arguments made to the RO and communications to the Board during the course of the current appeal. For these reasons, the Board finds that there is no prejudicial error. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, the Appellant has not alleged any prejudicial error in the content or timing of the VCAA notice she received. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Additionally, the notice letters provided did not include any information concerning the evaluation or the effective date that could be assigned should the claim be granted, as outlined in Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, since this decision affirms the RO's denials, the Appellant is not prejudiced by the failure to provide her with that information. For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further VCAA notification. VA also has a duty to assist the Appellant in the development of the claim. This duty includes assisting the Appellant in the procurement of the Veteran's service treatment records (STRs) and pertinent treatment records and providing a medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Veteran's STRs and post-service private treatment records have been obtained. The RO contacted the Whiteville Medical Associates to obtain the Veteran's private treatment records. The RO was informed in a letter dated in February 2004 from Whiteville that the Veteran was not seen in their office for treatment, but instead was treated by their hospital - Columbus County Hospital. These hospital records are contained in the claims file. The claims file also does not present evidence that the Veteran was receiving disability benefits from the Social Security Administration (SSA) for his gastric carcinoma prior to his death. Therefore, the Board does not need to make an attempt to obtain these records. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. A VA medical opinion has not been obtained in this case. See 38 U.S.C. § 5103A(a) (West 2002). A VA medical examination is not required as a matter of course in virtually every case involving a nexus issue. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the appellant, in which case an examination may not be required); see also DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (providing that 38 U.S.C. § 5103A(a) does not always require VA to assist the claimant in obtaining a medical opinion or examination. Rather, under § 5103(A)(a), VA only needs to make reasonable efforts to assist a claimant in obtaining a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit."). As discussed below, the National Academy of Sciences (NAS) has indicated that there is inadequate or insufficient evidence to determine whether there is an association between herbicide exposure and stomach cancer and gastrointestinal and digestive diseases. Given this medical fact and the fact that the record otherwise only contains the Appellant's general lay assertions that there is nexus between the Veteran's death and exposure to herbicides, the Board does not find it necessary to obtain a medical opinion. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Appellant's claim. Therefore, no further assistance to the Appellant with the development of evidence is required. Analysis The Appellant contends that the Veteran's death from gastric carcinoma was the result of his active military service, to include as due to in-service herbicide exposure. The Appellant also asserts that the Veteran had chronic lymphocytic leukemia, which caused his death and which was related to his active military service, to include as due to in-service herbicide exposure. According to applicable laws and regulations, service connection for the cause of a veteran's death requires evidence that a service-connected disability was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) 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 service-connected disability will be considered a contributory cause of death when such disability contributed substantially, or combined to cause death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Generally, minor service-connected disabilities, particularly those of a static nature or those not materially affecting a vital organ (e.g., those disabilities affecting muscular or skeletal functions), are not held to have contributed to a death that is primarily due to unrelated disability. Service-connected diseases or injuries affecting vital organs should 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 diseases or injury primarily causing death. 38 C.F.R. § 3.312(c)(2), (3). There are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting disorders, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected disability was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected disability accelerated death unless such disability affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). At the time of his death, the Veteran was not service-connected for any disabilities. Thus, within this framework, the Board must consider the laws that otherwise govern the issue - i.e., establishing service connection for a disorder. Service connection may be granted if the evidence demonstrates that a current disorder resulted from an injury or disease that was incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Stated somewhat differently, to establish entitlement to service connection, there must be: (1) a diagnosis of a current disorder; (2) medical or, in certain cases, lay evidence of in-service occurrence of a disease or injury, or aggravation of a pre-existing disease or injury; and, (3) evidence of a nexus between an in-service injury or disease and the current disorder. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Certain chronic diseases, including primary anemia, leukemia, and malignant tumors, may be presumed to have been incurred or aggravated during the military service if they become disabling to a compensable degree within one year of separation from the active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Thus, service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disorder with a relationship or connection to an injury or disease or some other manifestation of the disorder during the active military service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service-connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic during his active military service or, if not chronic, that was seen during his active military service with continuity of symptomatology demonstrated subsequent to the military discharge. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). For the showing of a chronic disease during the military, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service-connected if all the evidence, including relevant service records, establishes that the disorder was incurred during the active military service. 38 C.F.R. § 3.303(d). Additionally, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The following diseases, in pertinent part, are associated with herbicide exposure for the purpose of the presumption: chronic lymphocytic leukemia, chronic B-cell leukemia, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Here, the death certificate shows the Veteran died in November 2003 from gastric carcinoma. There was no autopsy, but a biopsy of the stomach was performed that same month prior to his death. He died in a private hospital and records of his final hospitalization have been obtained. With regard to presumptive service connection based on herbicide exposure, the Veteran's DD Form 214 confirms that he had "service in Vietnam," such that exposure to herbicides, to include Agent Orange, is presumed. 38 C.F.R. §§ 3.307(a)(6), 3.309. However, the cause of the Veteran's death (gastric carcinoma) is not on the list of diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Thus, the automatic presumption of service connection afforded for certain specific diseases associated with exposure to herbicides is not for application for the cause of the Veteran's death. In fact, VA has also specifically determined that stomach cancer and gastrointestinal and digestive diseases are not associated with exposure to herbicide agent for purposes of the presumption. See Health Effects Not Associated With Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540-32,553 (June 8, 2010); 72 Fed. Reg. 32,395, 32,406 (June 12, 2007). That is, taking account of the available evidence and National Academy of Science's analysis, the VA Secretary has found that the credible evidence against an association between herbicide exposure and this particular cancer outweighs the credible evidence for such an association, such that he has determined that a positive association does not exist. This determination was based on thorough and substantive medical research. The Board now turns to service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (where the Court 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 establishing entitlement to service connection with proof of actual direct causation, even when the veteran does not have one of the listed presumptive disorders). The Veteran's STRs, including his military separation examination, do not contain any complaints of, findings of, or treatment for gastric carcinoma or its related symptoms. The record does not contain evidence of the Veteran complaining of symptoms or seeking medical treatment for his gastric carcinoma until November 2003, over 33 years after his military service ended in April 1970. This intervening lapse of so many years between his separation from military service and the first documented manifestation of the disorder is probative evidence against the Appellant's claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The medical evidence of record, as a whole, does not substantiate the Appellant's lay assertions that the Veteran's active military experience, including his exposure to Agent Orange, caused his eventual death from gastric carcinoma. There are no medical opinions in the claims file attributing the Veteran's gastric carcinoma to his active military service, to include his presumed in-service herbicide exposure. In a February 2004 statement, the Appellant argued that Dr. F.R.T. at the Columbus County Hospital told the Veteran that his gastric carcinoma "could have been" related to Agent Orange. However, this medical opinion is not of record. At best, the record contains a medical opinion dated in May 2004 from Dr. F.R.T., the physician who cared for the Veteran on the day of his death. This medical opinion was submitted by the Appellant. In the opinion, Dr. F.R.T. determined that the Veteran died from gastric carcinoma. Dr. F.R.T. stated that, " . . . the size of the tumor mass was consistent with the likelihood of metastatic disease, both lymphatic and hematogenous metastasis due to size and also infiltrating carcinoma . . ." The opinion also indicated that a biopsy of the stomach revealed "ulcerative inflammation and atypical cells consistent with malignancy." Agent Orange was not mentioned in the opinion, nor was the gastric carcinoma linked to the Veteran's active military service in the opinion. The hospital treatment records support this opinion, showing that the Veteran was admitted in November 2003 with severe anemia and then underwent a sudden cardiac arrest due to the complications from his "extensive inoperable gastric carcinoma with probable metastases." The Appellant did not provide any other medical opinions to support the claim. Thus, there is no medical evidence directly linking the gastric carcinoma to the Veteran's active military service, to include exposure to toxic herbicides (e.g., the dioxin in Agent Orange). Additionally, the evidence does not establish that the Veteran manifested primary anemia, leukemia, or malignant tumors within one year after his active military service ended in April 1970. The earliest treatment records contained in the claims file are dated from 2003. Thus, the Appellant's claim cannot be granted under presumptive service connection. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In reaching this decision, the Board has considered the Appellant's arguments in support of her assertions that the Veteran's gastric carcinoma is related to his active military service, to include his presumed in-service herbicide exposure. It is true that the Appellant's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of the disorder or symptoms of the disorder subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disorder even where not corroborated by contemporaneous medical evidence); Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). However, gastric carcinoma is a complex disease entity that requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Finally, the Board notes that the Appellant also asserts that the Veteran had chronic lymphocytic leukemia, which was related to his active military service, to include his presumed in-service herbicide exposure. However, upon a review of the evidence of record, the Board finds that the Veteran was never diagnosed with chronic lymphocytic leukemia during his lifetime. Again, as previously mentioned, the Veteran was diagnosed with and died from gastric carcinoma, not chronic lymphocytic leukemia. There are no medical opinions of record diagnosing the Veteran with chronic lymphocytic leukemia during his lifetime. Thus, without even a diagnosis of chronic lymphocytic leukemia during the Veteran's lifetime, the Board finds that the claim cannot be granted under this theory of entitlement. In summary, as noted above, the Veteran was not service-connected for any disabilities during his lifetime. In addition, the Board finds that the probative evidence of record does not show that a disorder incurred in or aggravated by the Veteran's active military service either caused or contributed substantially or materially to his death. Therefore, service connection for the cause of the Veteran's death must be denied. The benefit-of-the-doubt rule does not apply, and the Appellant's claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see Alemany v. Brown, 9 Vet. App. 518, 519 (1996). (CONTINUED ON NEXT PAGE) ORDER Service connection for the cause of the Veteran's death, to include as due to in-service herbicide exposure, is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs