Citation Nr: 1306478 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-42 223A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1970, to include service in the Republic of Vietnam. The Veteran died in March 1991, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, that reopened the appellant's claim for service connection for the cause of the Veteran's death, but then denied the claim on the merits. In January 2009, the appellant filed a Notice of Disagreement. The RO furnished the Veteran a Statement of the Case in September 2009, and the appellant filed a Substantive Appeal (VA Form 9) in November 2009. In April 2011, the Board remanded the appellant's claim to reopen for additional development. Subsequently, in May 2012, the Board reopened the appellant's claim and then remanded the claim for service connection for the cause of the Veteran's death for further development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant'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. The Veteran died on March [redacted], 1991. The death certificate lists the cause of death as cardiac arrest due to carcinoma of the tongue. 2. At the time of the Veteran's death, service connection was in effect for perceptive deafness. 3. The Veteran served in the Republic of Vietnam during his period of active service. 4. Carcinoma of the tongue first manifested many years following separation from service, and the evidence of record does not suggest that this condition was caused by any incident of service, including exposure to herbicide agents, and was not manifested to a compensable degree within one year following the Veteran's separation from service. 5. The evidence does not establish that a service-connected disability caused or contributed substantially or materially to the Veteran's death, or that the cause of death is otherwise related to service. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 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, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant 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, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, 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, 352-53 (2007). In this case, in an August 2008 letter issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate her claim for DIC, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The letter also listed the conditions for which the Veteran was service connected at the time of his death and explained that the appellant could submit evidence showing that the Veteran's previoiusly service-connected disability had caused or contributed to his death. The letter additionally notified the appellant that she could establish service connection by submitting evidence that sufficiently demonstrated that a condition not service connected during the Veteran's lifetime had caused or contributed to his death. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, private treatment records, a VA examination report, prior Board decisions, and lay statements. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included obtaining outstanding private medical records and obtaining a VA opinion that discussed whether the Veteran's tongue cancer was a form of respiratory cancer and whether his cause of death was related to his presumed herbicide exposure. In response, the RO/AMC obtained all available treatment records from the private medical providers for which the appellant completed authorization and consent forms. Although the RO/AMC received a negative response from Dr. David Bray in July 2011, the medical records associated with this physician were subsequently obtained. Finally, the RO/AMC obtained a June 2012 VA opinion that discussed whether the Veteran's tongue cancer was a form of respiratory cancer and whether his cause of death was related to his presumed herbicide exposure. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The appellant was an active participant in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the appellant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The VA regulation pertaining to claims for service connection for the cause of death, 38 C.F.R. § 3.312, provides as follows: (a) General. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. (b) Principal cause of death. The service-connected disability will be considered as 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. (c) Contributory cause of death. (1) Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. (2) Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. (3) Service-connected diseases or injuries involving active processes 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 disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. (4) 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 of itself of a progressive or debilitating nature. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131. A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2012). If a chronic disorder, such as a malignant tumor, is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, a Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents. In the case of such a Veteran, service connection for certain disorders, such as respiratory cancer, will be rebuttably presumed if they are manifest to a compensable degree at any time after service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). This presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307(d) (2012). In this case, the Veteran's period of active service from April 1967 to April 1970 included service in Vietnam, and thus he is afforded the presumption of exposure to herbicide agents during service. See 38 C.F.R. § 3.307(a)(6)(iii) (2012). The appellant contends that the Veteran's carcinoma of the tongue was related to his exposure to Agent Orange during active service. Specifically, she alleges that carcinoma of the tongue is considered a respiratory cancer, which is a presumptive condition for herbicide exposure. During the Veteran's lifetime, service connection was awarded for perceptive deafness. The Veteran died on March [redacted], 1991, more than 20 years after his military service. The death certificate lists the cause of death as cardiac arrest due to carcinoma of the tongue. No complaint, diagnosis or treatment for cancer is shown in the service treatment records or during a VA examination within a year after the Veteran's separation from service. The first evidence of any cancer is in 1991, when the Veteran had carcinoma of the tongue. Private treatment records show that after diagnostic testing in February 1991, which included a biopsy of the tongue and MRI of the neck, the Veteran was diagnosed with invasive poorly differentiated squamous cell carcinoma of the base of the tongue. A February 1991 biopsy of the right lingual tonsil revealed reactive follicular hyperplasia. The medical oncology consultation clarified the Veteran's diagnosis to be stage IV squamous cell carcinoma of the base of the tongue with extensive neck disease. The final private hospitalization report indicates that the Veteran was diagnosed with an extensive inoperable carcinoma of the base of the tongue with progressive airway obstruction. The appellant submitted a copy of a February 2003 Board decision in which service connection was granted for carcinoma of the tongue and the floor of the mouth with metastasis due to that Veteran's exposure to herbicides. In May 2011 correspondence, she also cited 10 other Board decisions in which service connection was granted for tongue cancer due to exposure to herbicides. She noted that the medical expert testimony in these cases showed that the base of the tongue (and tonsils) were part of the respiratory system and that cancer of the tongue should thus be classified as respiratory cancer. She also pointed out that the medical testimony indicated that the base of the tongue and tonsils were adjacent to and of the same type of tissue as the larynx. Therefore, the tongue and tonsils were found to react to a carcinogen (Agent Orange) in the same way as the larynx. In June 2012, a VA examiner reviewed the Veteran's entire claims file, including the appellant's May 2011 contentions as well as the written statements quoting the oncologists and Ear, Nose, and Throat physicians who provided medical testimony in prior Board decisions. The examiner stated that for VA compensation purposes, respiratory cancer was defined as cancer of the larynx, trachea, lungs, or bronchus. She explained that the tongue was part of the oropharynx, and cancer of the base of the tongue was considered to be an oropharyngeal cancer instead of a respiratory cancer. The examiner also indicated that the appellant had confused the respiratory tract with respiratory cancer. She cited "Veterans and Agent Orange: Update 2010" from the National Academies Press, which was an exhaustive summary of veterans from the United States, Australia, and other countries. She stated that this report had concluded that taken in combination with the previously reviewed medical literature, the data were not sufficient to suggest an association of oral, nasal, or pharyngeal cancers with the herbicides that had been sprayed in Vietnam. The examiner reiterated that the Veteran's tongue cancer was not a form of respiratory cancer. She explained that it was a digestive system cancer, which is not a presumptive disorder for herbicide exposure. Therefore, the examiner opined that the Veteran's fatal tongue cancer was not caused by or a result of his Agent Orange exposure, nor was it a presumptive disorder for herbicide exposure. She concluded that there was no relationship between the Veteran's death and his presumed exposure to herbicides during his period of service. Regarding the appellant's contention that the Veteran's tongue cancer was related to his Agent Orange exposure, the Board notes that tongue cancer is not a disability associated with exposure to herbicides. Therefore, the Board finds that service connection for carcinoma of the tongue due to a presumption of being related to exposure to herbicides is not warranted. 38 C.F.R. § 3.309(e). Notwithstanding the fact that tongue cancer is not subject to presumptive service connection on the basis of herbicide exposure, the appellant could still establish service connection for the Veteran for this condition with competent evidence that it was incurred in service, was present during other presumptive periods, or by submitting medical or scientific evidence that it was in fact due to herbicide exposure during service. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board finds that the June 2012 VA examiner conducted a thorough and detailed review of the Veteran's file and provided adequate rationale for the opinion that the Veteran's tongue cancer was not caused by or a result of his Agent Orange exposure and was not considered a respiratory cancer for purposes of presumptive service connection due to herbicide exposure. For these reasons, the June 2012 opinion by the June 2012 VA examiner is afforded great probative value. In addition, there are no competent contrary medical opinions of record. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), carcinoma of the tongue falls outside the realm of common knowledge of a lay person. In this regard, while the appellant can competently report the onset and continuity of any tongue swelling that the Veteran may have had, an actual diagnosis of carcinoma of the tongue requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, to the extent that the appellant believes that the Veteran's carcinoma of the tongue is due to his presumed herbicide exposure in service, as a lay person, she is not shown to possess any specialized training in the medical field. The appellant's opinion as to the etiology of the Veteran's carcinoma of the tongue is not competent medical evidence, as such question requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). Thus, the Board finds the medical opinion of record to be of greater probative value than the appellant's lay contentions. As noted above, the most probative medical opinion is against a finding that the Veteran's carcinoma of the tongue is related to service, to include exposure to herbicides. The Board acknowledges that the appellant submitted a 2003 Board decision which granted service connection for another Veteran's tongue cancer due to herbicide exposure and cited the medical testimony in other Board decisions which granted service connection for tongue cancer due to herbicide exposure. However, although the 2003 Board decision granted service connection for tongue cancer due to herbicide exposure, the circumstances and facts of that case differed from the specific facts of the Veteran's case. Thus, such documents are entitled to little probative weight as they do not address the specific relationship of the Veteran's tongue cancer and his military service. Additionally, the medical evidence that the appellant cited to did not actually provide support that tongue cancer was related to Agent Orange exposure. The cited evidence instead revealed the inadequacy or insufficiency of evidence to determine an association between herbicide exposure and tongue cancer. The Board notes that although some of the cited medical testimony indicated that the tongue was considered part of the respiratory system or should be considered part of the respiratory system, the June 2012 VA examiner had considered these findings and addressed this issue in her opinion. Indeed, the June 2012 VA examiner had explained that for VA purposes, tongue cancer was not considered to be a respiratory cancer but was instead a digestive system cancer. She also indicated that the appellant had confused the "respiratory tract" with what constituted "respiratory cancer." The Board finds the VA opinion to be more persuasive than the medical testimony that the appellant cited to out of context. Regarding whether the Veteran's tongue cancer is related to service on a direct basis (other than presumed herbicide exposure), in this case, cancer was not shown during service or for many years thereafter, which is evidence against a claim that it was related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Additionally, the June 2012 VA examiner conducted a thorough and detailed review of the Veteran's file and provided adequate rationale for the opinion that there was no relationship between the Veteran's death and his period of service. As for whether the Veteran's death was caused by his service-connected perceptive deafness, the appellant has made no specific allegation relating the cancer that caused the Veteran's death to his service-connected perceptive deafness, and no medical evidence suggests such a connection. In summary, cancer manifested many years following separation from service, and there is no evidence suggesting a medical relationship, or nexus, between cancer and the Veteran's period of service, to include exposure to herbicides, or between cancer and the Veteran's service-connected disability. Thus, the preponderance of the evidence indicates that a disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs