Citation Nr: 1308285 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 11-22 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to July 1969, and died in July 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appellant testified at a May 2012 hearing held by the undersigned at the RO. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran died in July 2008; the amended death certificate listed the cause of death as pneumonia; idiopathic pulmonary fibrosis was listed as the underlying cause, and lupus was listed as a significant condition contributing to death but not resulting in the underlying cause. 2. At the time of the Veteran's July 2008 death, service connection was not in effect for any disability. 3. The competent and probative evidence of record does not relate the Veteran's death to his military service, to include his presumed exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for the cause the Veteran's death have not been met. 38 U.S.C.A. §§ 1310, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.310, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). A July 2010 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). . In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court of Appeals for Veterans Claims held that when VA receives a claim related to a Veteran's death under 38 U.S.C. § 1310, it must provide a detailed notice to the claimant. Specifically, the Court held that, under section 38 U.S.C.A. § 5103A (a), the notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate such a claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate such a claim based on a condition not yet service connected. The July 2010 letter informed the appellant of the evidence needed to substantiate her claim, included a list of disabilities for which service connection was in effect during the Veteran's lifetime, and notified the appellant of the evidence that she should submit and that which VA would obtain on her behalf. The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran was in receipt of disability benefits from the Social Security Administration prior to his death. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The January 2012 VA opinion obtained with respect to the question of whether the Veteran's death was related to his military service was adequate, as it referenced the Veteran's medical history, and contained a complete rationale. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). To establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. See 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312. For a service-connected disability to be the principal (primary) cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related. Id. For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; 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. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). To establish service connection for a disability requires the evidence demonstrates that a current disability resulted from an injury or disease incurred in service, or if it pre-existed service, that it was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The Veteran's death certificate reflects that he died in June 2008. As noted above, the stated cause of death was pneumonia; idiopathic pulmonary fibrosis was listed as the underlying cause, and lupus was listed as a significant condition contributing to death but not resulting in the underlying cause. At the time of the Veteran's June 2008 death, service connection was not in effect for any disability. Review of the record does not show that any claims were pending at the time of the Veteran's death; although the appellant filed claims for service connection for erectile dysfunction, hypertension, and adenomatous polyps in September 2010, these claims were filed after the Veteran's death and thus cannot be considered. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a); Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). The appellant asserts that the Veteran's death is related to service on the basis that his pulmonary fibrosis was the proximate result of his in-service exposure to herbicides. A July 1967 service treatment record indicates that he was treated at a Da Nang base clinic, which establishes that he was physically present in the Republic of Vietnam; on that basis, exposure to herbicides is conceded. 38 U.S.C.A. § 1116(f). VA regulations also provide that, if a veteran were exposed to an herbicide agent during active service, presumptive service connection may be warranted for certain diseases. 38 C.F.R. §§ 3.307, 3.309 (2012); see also 78 Fed. Reg. 21,258 (May 7, 2009); 75 Fed. Reg. 53,202 (Aug. 31, 2010). Although pulmonary fibrosis is not included among the list of diseases in 38 C.F.R. §§ 3.307 and 38 C.F.R. 3.309 for which service connection can be presumptively granted, an appellant is not precluded from establishing service connection for a disease as due to herbicide exposure with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1040 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999); see also Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2, 725, 2,727-29 (1984); Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991). The appellant has submitted an August 2012 nexus opinion from a private physician, Dr. Cavalli, who concluded after review of the Veteran's medical records that the Veteran's pulmonary fibrosis, specifically his idiopathic type fibrosis, was certainly due to herbicide exposure. He based this opinion on the Veteran's history of herbicide exposure in service, medical literature which showed that significant exposure to herbicides causes numerous problems in veterans' lungs, including idiopathic pulmonary fibrosis, and the fact that the Veteran's case was very similar to other cases that he had dealt with during his career as a thoracic surgeon during which he had identified this type of pulmonary fibrosis in other Vietnam veterans. Dr. Cavalli does not appear to have considered the Veteran's history of smoking, his post-service employment in which he was exposed to diesel fumes, or his coexisting medical conditions to include lupus. To consider only the Veteran's herbicide exposure, and no other exposures or medical conditions, makes his opinion minimally probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that threshold considerations as to the sufficiency of a medical opinion include whether the person opining is suitably qualified and sufficiently informed). Further, Dr. Cavalli noted that the medical literature "very significantly shows" that "significant exposure" to herbicides has resulted in respiratory disabilities in the veteran population, but did not identify this medical literature. He also did not address the repeated findings of the National Academy of Science (NAS), which in September 2011 issued the Veterans and Agent Orange: Update 2010, ultimately concluding that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for respiratory disorders. To the extent that the appellant's representative requested in his February 2013 statement that the appellant's appeal be again remanded so that Dr. Cavalli could submit references to the specific medical literature on which his opinion was based, a Board remand is not required for the appellant or her representative to make that request to Dr. Cavalli, especially since his nexus opinion was obtained by the appellant without any direction from VA. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not always a one-way street and the claimant must not passively wait for help in those circumstances where he may or should have information that is essential in obtaining the putative evidence). Conversely, the December 2012 VA opinion concluded that the Veteran's pulmonary fibrosis was likely related to his connective tissue disease (lupus), and that the conditions that led to the Veteran's death were less likely than not etiologically related to his period of service, to include herbicide exposure. The examiner noted that the Veteran had a history of smoking in his twenties and thirties, and a long history of exposure to diesel fumes while working as a trucker in the post-service period. Even assuming herbicide exposure, there was no clear evidence in the medical literature to show an association between such exposure and pulmonary fibrosis or lupus; only one medical treatise suggested it, and that was only a case report from 1986 based on a single veteran's case. This opinion is more probative because it considers the Veteran's other lifestyle habits such as his history of smoking and his longtime exposure to diesel fumes, and it addresses the Veteran's underlying diagnosis of lupus, which Dr. Cavalli's opinion ignores. See Nieves-Rodriguez, supra (holding that most of the probative value of a medical opinion comes from its reasoning). For these reasons, the Board finds that it is most probative to the question of etiology. Over the appeal period, the appellant has repeatedly submitted a copy of a February 2008 Board decision in which service connection for the cause of the Veteran's death is granted on the basis that the terminal illness, pulmonary fibrosis, was related to the Veteran's presumed herbicide exposure, and argues that her claim should also be granted. However, previous Board decisions are not binding on the Board, unless the previous Board decision(s) specifically addressed the case of the Veteran in the current appeal. That is not the situation here. See 38 C.F.R. § 20.1303 (2012). The Board has also considered the appellant's statements with respect to her belief that the Veteran's many medical conditions were the result of his in-service herbicide exposure, and her perceived unfairness of the VA adjudication system providing benefits to unworthy claimants while legitimate claims such as hers are repeatedly denied. Although the Board is sympathetic to the appellant's claim, the legal requirements for substantiating her claim for service connection simply have not been met. The Board has no authority to grant claims on an equitable basis and, instead, is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection for the cause of the Veteran's death is not warranted. 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs