Citation Nr: 1306332 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-40 611A ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1953 to February 1956 and from January 1960 to June 1978. His awards and decorations include the Purple Heart Medal, Combat Action Badge, Vietnam Service Medal, and Vietnam Campaign Medal. He died in August 2008. The appellant claims as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. In that decision the RO denied the appellant's claim for entitlement to service connection for the cause of the Veteran's death. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. At the time of his death, the Veteran was in receipt of service connection for type II diabetes mellitus with retinopathy, peripheral vascular disease, and impotence, rated 20 percent disabling; hypertension, rated 10 percent disabling; gout, rated 10 percent disabling; limitation of motion of the right ankle secondary to peripheral vascular disease, rated 10 percent disabling; muscle loss of the right calf, status-post resection with skin grafting and a scar, secondary to peripheral vascular disease, rated 10 percent disabling; peripheral neuropathy of the left leg associated with type II diabetes mellitus, rated 10 percent disabling; peripheral neuropathy of the right leg associated with type II diabetes mellitus, rated as 10 percent disabling; spermatocele, rated 0 percent disabling; and hearing loss, rated 0 percent disabling. 2. The Veteran died in August 2008. The immediate cause of death was metastatic squamous cell cancer. Diabetes was another significant condition contributing to death but not resulting in the underlying cause of death. 3. The Veteran's service-connected disabilities did not cause his death and played no substantial or material part in his death, and did not otherwise materially accelerate his death. 4. Cancer was not manifested during service or within one year of service separation. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the cause of death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, there is a general duty to assist in a death case under the provisions of 38 U.S.C.A. § 5103A(a). Such provision excuses VA from reasonable efforts to provide such assistance when no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a). In addition, in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA 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, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009) (unpublished). In this case, the appellant has asserted that the Veteran's service-connected type II diabetes mellitus directly contributed to his death due to elevated glucose levels as a result of chemotherapy treatment for his cancer. The RO notified the appellant of the evidence needed to substantiate her claim for service connection for the cause of the Veteran's death in December 2008 and May 2009 letters. The letters explained how to establish entitlement to DIC benefits based on a service-connected disability established during the Veteran's lifetime. These letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that she would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The May 2009 letter also provided notice on the rating and effective date elements, pursuant to Dingess/Hartman. Additionally, the May 2009 letter also advised the appellant what information and evidence was needed to substantiate her claim for the cause of the Veteran's death, pursuant to Hupp. Furthermore, as regards the timing of the notice, the claim was readjudicated in a December 2009 supplemental statement of the case (SSOC), thereby curing any timing deficiency. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). In this case, VA obtained the Veteran's service treatment records and all of the identified and available post-service private and VA medical records. Furthermore, a VA medical opinion was obtained in April 2009 and the appellant submitted a private medical opinions. For the reasons explained further below, the Board finds that the April 2009 VA medical opinion is adequate to make a decision on this claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim is thus ready to be considered on the merits. Merits of the Claim Under 38 U.S.C.A. § 1310, when a veteran dies from a service related disability, VA will pay dependency and indemnity compensation (DIC) to the veteran's surviving spouse. To establish that a veteran died from a service related disability, i.e., service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service was either a principal or contributory cause of death. 38 C.F.R. § 3.312. For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. In this regard, it is not sufficient to show that the service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). The Veteran's death certificate shows that the immediate cause of death was metastatic squamous cell cancer. The interval between its onset and death was listed as an unspecified number of years. There are no listed diseases, injuries or complications leading to the immediate cause of death, but diabetes is listed as another significant conditions contributing to death but not resulting in the underlying cause. The certificate also shows that an autopsy was not performed. At the time of his death, the Veteran was in receipt of service connection for type II diabetes mellitus with retinopathy, peripheral vascular disease, and impotence, rated 20 percent disabling; hypertension, rated 10 percent disabling; gout, rated 10 percent disabling; limitation of motion of the right ankle secondary to peripheral vascular disease, rated 10 percent disabling; muscle loss of the right calf, status-post resection with skin grafting and a scar, secondary to peripheral vascular disease, rated 10 percent disabling; peripheral neuropathy of the left leg associated with type II diabetes mellitus, rated 10 percent disabling; peripheral neuropathy of the right leg associated with type II diabetes mellitus, rated as 10 percent disabling; spermatocele, rated 0 percent disabling; and hearing loss, rated 0 percent disabling. Post-service medical records show that the Veteran used insulin injections to regulate his blood sugar levels and to control his service-connected diabetes until his death. The appellant asserts that the chemotherapy treatments for the Veteran's cancer caused elevated blood sugar levels for several days at a time which necessitated increased insulin injections to control his service-connected diabetes. In support of this claim, the appellant submitted private treatment records dated from October 2007 to August 2008, private laboratory reports dated from May 2007 to August 2008, a private chart recording the Veteran's blood sugar levels dated in August 2008, and a private medical opinion from the Veteran's treating oncologist dated in October 2009. Private treatment records include an October 2007 problem list which showed that the Veteran had squamous cell carcinoma with lymph node metastasis. He was treated with surgery, radiation, and chemotherapy. Private laboratory reports dated from May 2007 to August 2008 showed consistently elevated glucose levels in the Veteran's blood samples ranging from 104 mg/dL to 126 mg/dL until four days before the Veteran's death, with the exception of three readings within the normal reference range of 70 to 99 mg/dL. Two readings were recorded as 85 mg/dL in May 2007 and another reading of 80 mg/dL was recorded in August 2008, six days before the Veteran's death. Four days before the Veteran's death in August 2008, lab results indicated the Veteran's glucose levels were low. His blood glucose level was recorded as 47 mg/dL and the reference range was listed as 70 to 99 mg/dL. An August 2008 private chart from the Veteran's nursing home included his glucose levels in the four days leading up to his death. Four days before his death, his glucose readings were 87 mg/dL at 1630, and 137 mg/dL at 2000. Three days before his death, his glucose readings were 110 mg/dL at 0700, 250 mg/dL at 1130, 222 mg/dL at 1630, and 260 mg/dL at 2000. Two days before his death, his glucose readings were 87 mg/dL at 0700, 91 mg/dL at 1130, 154 mg/dL at 1730, and 143 mg/dL at 2330. The day before his death, his glucose readings were 199 mg/dL at 0530, 98 mg/dL at 1130, 263 mg/dL at 1730, and 186 mg/dL at 2330. The chart indicated that the Veteran received 38 units of Glargine insulin once per day, 8 units of Novolin-N insulin once per day, and Glucogon as needed for symptoms of hypoglycemia and when he was unable to accept fluids via his gastronomy tube. In an April 2009 VA medical opinion, a VA physician opined that there was nothing in the claims file to suggest that the Veteran's service-connected diabetes contributed to his death in any significant way. She noted the appellant's contention that the Veteran was on insulin until his death and, therefore, his diabetes was a contributing factor to his death. The physician stated, "His death was directly related to his metastatic malignancy. He would have died of this malignancy whether he did or did not have the diabetes." In an October 2009 private medical opinion, the Veteran's treating oncologist opined that the Veteran's diabetes "may have been a contributing factor to death." He provided no further explanation to support his opinion. In light of the evidence discussed above, the Board notes that there is little probative evidence supporting the appellant's assertion that the Veteran's service-connected diabetes, which the death certificate indicates contributed to his death, contributed "substantially or materially" to his death as required by 38 C.F.R. § 3.312. While in the October 2009 private medical opinion, the private oncologist opined that the Veteran's diabetes "may" have been a contributing factor to his death, he did not provide any supporting rationale for his opinion, and, more importantly, he did not provide an opinion that suggested that the Veteran's diabetes contributed "substantially or materially" to his death as required by 38 C.F.R. § 3.312. Moreover, in her April 2009 medical opinion, the VA physician determined that the Veteran's death was directly related to his metastatic malignancy and it was not related to his service-connected diabetes. This evidence weighs against the appellant's claim in that the examiner found that the Veteran's diabetes did not contribute at all to the Veteran's inevitable death from cancer, let alone that it contributed "substantially or materially" to his death as the provisions of 38 C.F.R. § 3.312 require. As the VA examiner based her conclusion on the evidence of record and specifically considered the appellant's arguments of a nexus, her opinion negating the appellant's assertion that the Veteran's service-connected diabetes contributed "substantially or materially" to the cause of his death is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board also notes that the facts do not establish that the Veteran's service-connected disabilities did not result in debilitation. Furthermore, nothing suggests that he was less capable of resisting the effects of the fatal disease process. 38 C.F.R. § 3.312(c)(3). Rather, the VA examiner established that death was inevitable due to the metastatic malignancy. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the statements of the appellant and her representative to the effect that the Veteran's service-connected diabetes contributed substantially or materially the cause of his death are internal medical processes of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1,6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The probative value of evidence is based on knowledge and skill in analyzing the data, and the medical conclusion that is reached. Even when we assume lay competence based upon the death certificate and the statement from the private doctor, the lay evidence suffers from the same lack of reasoning as the other evidence. The VA examiner's April 2009 opinion is entitled to more probative weight than their more general assertions. See Nieves-Rodriguez, 22 Vet. App. at 304. Finally, there is no evidence or argument that the immediate or contributory cause of death was itself related to service. In determining whether the disability that resulted in the death of the Veteran was the result of active service, the standards and criteria applicable to service connection claims generally are to be applied. See 38 U.S.C.A. § 1310(a). Before his death, the Veteran submitted a claim for service connection for mouth and throat cancer as a result of exposure to herbicides. His claim was denied in a June 2006 rating decision by the Milwaukee Regional Office (RO). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F. 3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was 'noted' during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3,303(d). In addition, for Veterans who served 90 days or more of during a war period, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. § 3.307(a), 3.309(a). 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) (2012) 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) (2012) are also satisfied. Those diseases are as follows: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes 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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Note 3 at the end of § 3.309 defines ischemic heart disease as not including hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. There are no notations regarding any mouth or throat cancer in the service treatment records. Rather, post-service medical records show that this disability was discovered decades after service when the Veteran was referred to a private oncologist by a private dentist in 2004. He was diagnosed with squamous cell carcinoma of the retromolar trigone area following a biopsy in November 2004. As there is no evidence that metastatic malignancy manifested within the one year presumptive period or that it was otherwise related to service, service connection for the cause of death must be denied on this basis as well. While the Veteran had service in the Republic of Vietnam, the presumptive provisions of 38 C.F.R. §§ 3.309(d),(e), 3.311, 3.313 do not apply to squamous cell carcinoma of the retromolar trigone area (or the throat and mouth) and further consideration in this regard is not warranted. The Board is aware of the statement from Dr. Frontiera, dated in August 2006. Here, he notes that there is controversy regarding Agent Orange and that Agent Orange has been associated with a number of malignancies. The doctor then concluded that he would include the patient's diagnosis as related to previous exposure to this agent. Although Dr. Frontiera was familiar with the Veteran, his conclusion is remarkably lacking in reasoning. A conclusion with essentially no logic or reasoning is accorded no probative value. As noted by Dr. Frontiera, Agent Orange has been associated with a number of malignancies, but not the Veteran's malignancy. The statement of Dr. Frontiera is nothing more than a disagreement with a regulation. The statement from Dr. Frontiera does not rise to the level of Combee type evidence and does not require further development. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, there is no reasonable possibility that further assistance would aid in substantiating the claim. See, Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F. 3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs