Citation Nr: 1306472 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 03-12 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from January 1944 to April 1946; he died in June 2001. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for the cause of the Veteran's death. A Travel Board hearing was held in June 2006 with the Veteran in Montgomery, Alabama, before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The matter was remanded in November 2006, and again in January 2009, for additional evidentiary and procedural development. That development has been completed, and the case returns to the Board for further review. The Veteran's Virtual VA file has also been reviewed as part of this appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's death certificate indicates that he died in June 2001 at the age of 75. The immediate cause of death was non-Hodgkin's lymphoma. 2. At the time of his death, the Veteran was not service-connected for any disabilities. 3. The Veteran's death was not etiologically related to service, including due to inservice exposure to ionizing radiation, or to a disability incurred in service. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1110, 1310, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In cases of service connection for the cause of death, notice must also include information on what disabilities the Veteran was service connected for at the time of death, and how to establish service connection for additional disabilities. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Subsequent to the initial adjudication of the appellant's claim, a letter dated in March 2009 was sent to the appellant in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant was notified of the evidence that was needed to substantiate her claim; what information and evidence that VA will seek to provide and what information and evidence the appellant was expected to provide, and that VA would assist her in obtaining evidence, but that it was her responsibility to provide VA with any evidence pertaining to her claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). She was also notified of the criteria for establishing an effective date. See Dingess. Notably, no disability rating is assigned when service connection for the cause of the Veteran's death is granted, and therefore notice regarding the establishment of a disability rating is not required. Here, the duty to notify was not satisfied prior to the initial decision on the Veteran's claims by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental statement of the case (SSOC), is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of the March 2009 letter that addressed all notice elements. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond, but the claim was then readjudicated by way of an SSOC in October 2012, after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the United States Court of Appeals for Veterans Claims (Court) to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). B. Duty to Assist The Veteran's service treatment records, service personnel records, private treatment records, and lay statements have been associated with the claims file. The appellant's statements and hearing testimony have also been associated with the claims file. VA made additional attempts to obtain a response from Dr. M.G., who had provided a March 2001 opinion regarding the etiology of the Veteran's disabilities. However, no response was received. The appellant was notified and given the opportunity to obtain the information on her own. Pursuant to the Board's January 2009 remand, additional action was also undertaken to develop evidence of the Veteran's exposure to ionizing radiation in service. To that end, evidence has been obtained from Naval Dosimetry Center and Defense Threat Reduction Agency. See 38 C.F.R. § 3.311 (2012). VA also obtained a response from the Director of the Compensation Service in June 2012. Notably, this response stated that there was no evidence of a radiation risk activity or occupational exposure to radiation, and therefore no opinion was rendered. This is consistent with the provisions of 38 C.F.R. § 3.311(c)(ii). Moreover, in Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) made clear that § 5103A(d) does not apply to Dependency and Indemnity (DIC) claims. Rather, § 5103A(a) applies. Section 5103A(a) requires VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is "necessary to substantiate the claimant's claim" and only excuses VA from making reasonable efforts to provide such assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. In this case, no medical opinion has been obtained. However, as discussed below, the evidence does not demonstrate the possibility that the disability which resulted in the Veteran's death may have been incurred in or otherwise related to service. Therefore, an opinion would not aid in substantiating the claim. VA has provided the appellant with the opportunity to submit evidence and argument in support of her claim. The appellant has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection A. Applicable Law The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a) (2012). A principal cause of death is one which, 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 is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c) (2012). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition 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 condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (2012). In this case, the Veteran was not service-connected for any disabilities at the time of his death. Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2012). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The appellant contends that the Veteran incurred a disability as a result of exposure to ionizing radiation in service. The Board notes that service connection for a disease based on radiation exposure may be established in one of three different ways, which have been outlined by the Court. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). See also Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir 1997); Hardin v. Brown, 11 Vet. App. 74, 77 (1998). First, where it is contended that disease developed as a result of exposure to ionizing radiation during service, service incurrence may be presumed under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) for veterans who participated in defined radiation risk activities and have certain diseases. Second, service connection may be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if certain conditions are met. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee at 1043-44. As it applies to 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), the term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity." 38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i). The term "radiation-risk activity" includes the occupation of Hiroshima or Nagasaki, Japan, by United States forces from August 6, 1945 to July 1, 1946. See 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). As noted above, in radiation claims, the second approach is found in 38 C.F.R. § 3.311. To consider a claim under 38 C.F.R. § 3.311 , the evidence must show the following: (1) that the Veteran was exposed to ionizing radiation in service; (2) that he subsequently developed a radiogenic disease; and (3) that such disease first became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b). If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. See 38 C.F.R. § 3.311(b)(1)(iii). For the purposes of 38 C.F.R. § 3.311, the term "radiogenic disease" means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). 38 C.F.R. § 3.311(a) calls for the development of a radiation dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or 38 C.F.R. § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. With regard to the "other exposure claims" category in 38 C.F.R. § 3.311(a)(2)(iii), in all other claims involving radiation exposure, a request will be made for any available records concerning a Veteran's exposure to radiation. All such records are to be forwarded to the Under Secretary for Health, who will be responsible for preparation of a radiation dose estimate. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). B. Evidence The Veteran's death certificate indicates that he died in June 2001 at the age of 75. The immediate cause of death was non-Hodgkin's lymphoma. Service treatment records are negative for any complaints, treatment, or diagnoses related to non-Hodgkin's lymphoma. The Veteran underwent examinations in January 1944 and April 1946. No relevant abnormalities were recorded. An August 2011 response to a request for information indicated that the Veteran did not have a DD-1141 Record of Occupational Exposure to Ionizing Radiation. In an October 1990 statement, the Veteran indicated that he was aboard a ship that was in close proximity to nuclear tests. In a November 1990 statement, the Veteran indicated that he felt he may have been exposed to radiation in 1945 while stationed in the Pacific theater. He reported having seen a television program in which other servicemen stationed in the Pacific had been exposed to radiation as a result of being downwind from nuclear testing. A March 2001 letter from the Veteran's private physician stated that the Veteran was being treated for non-Hodgkin's lymphoma and myelodysplasia. He opined that it was highly likely that the Veteran's illness was due to the damaging effects of prior radiation exposure. However, he cited to a history provided by the Veteran of a 42 day post service hospitalization in 1966, during which time he was exposed to radiation. The appellant testified at a Board hearing in June 2006. However, her testimony was mostly related to a previously adjudicated claim. She did not offer any significant testimony with respect to her claim that the Veteran's cause of death was related to service. However, in written statements dated July 2006 and December 2006, she stated that the Veteran was exposed to radiation in service as a result of being in close proximity to nuclear bomb tests. She stated that winds carried the radiation to his location. She also reported that the Veteran did not have any employment after service that would have exposed him to radiation. A November 2011 response from the Naval Dosimetry Center indicates that a review of their exposure registry revealed no reports of occupational exposure to ionizing radiation for the Veteran. A March 2012 response from the Defense Threat Reduction Agency also indicated that, after a review of the relevant historical records, there was no documentation of the Veteran's participation in atmospheric nuclear testing or his presence with American occupation forces in Hiroshima or Nagasaki. As noted above, a June 2012 response from the Director of the Compensation Service stated that an opinion as to whether the Veteran's non-Hodgkin's lymphoma was caused by radiation was not warranted because the evidence did not demonstrate any radiation exposure in service. C. Analysis Based on the evidence of record, the Board finds that service connection for the cause of the Veteran's death is not warranted. The Veteran died as a result of non-Hodgkin's lymphoma. However, the overall weight of the evidence is against a finding that this condition is related to radiation exposure in service. Specifically, findings from the Naval Dosimetry Center and Defense Threat Reduction Agency could not verify that the Veteran was exposed to ionizing radiation in service, and his service records do not include a DD-1141 documenting any such exposure. The Board has considered the statements of the appellant and prior statements made by the Veteran. Collectively, they reported that the Veteran was exposed to radiation while serving in the Pacific theater. However, as noted above, the official records do not document any such exposure, and the appellant and Veteran have not demonstrated the necessary knowledge or expertise to competently report such exposure based on their own observations. The Board has also considered the March 2001 opinion which attributed the Veteran's non-Hodgkin's lymphoma to radiation exposure. However, radiation exposure in service has not been verified. Indeed, the opinion itself referred to a history of post-service radiation exposure. Therefore, this evidence does not establish that the Veteran's condition was related to service. Finally, the Board has considered whether service connection for non-Hodgkin's lymphoma is warranted on a direct basis. However, service treatment records do not contain any complaints, treatment, or diagnoses related to the condition, and neither the appellant nor the Veteran had alleged that the condition had its onset in service. The preponderance of the evidence is against finding that the Veteran's non-Hodgkin's lymphoma was etiologically related to active service. The appeal for service connection for the cause of the Veteran's death is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the appellant's claim. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs