Citation Nr: 1315860 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-38 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, with peripheral neuropathy and renal failure, as a result of exposure to herbicides, for accrued benefits purposes. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1967 to September 1971. The Veteran died in March 2008 and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the appellant's claim for service connection for the cause of the Veteran's death and service connection for diabetes mellitus, type II, with peripheral neuropathy and renal failure, as a result of exposure to herbicides, for accrued benefits purposes. These issues were remanded for further development in April 2012, and now return again before the Board. FINDINGS OF FACT 1. The Veteran had an outstanding claim at the time of his death for service connection for diabetes and associated residuals, and the appellant, his surviving spouse, filed a claim for accrued benefits for this issue within one year of the Veteran's death. 2. The Veteran died in March 2008. The cause of death was determined to be chronic obstructive pulmonary disease, due to, or as a consequence of hypertension and diabetes mellitus. No significant conditions contributing to death but not resulting in the underlying cause of death were listed. 3. At the time of the Veteran's death, he was not service connected for any disabilities. 4. The preponderance of the evidence is against a finding that the Veteran's cause of death is attributable to service or any incident of service. CONCLUSIONS OF LAW 1. A valid claim for accrued benefits exists. 38 C.F.R. § 3.160(c). 2. Diabetes mellitus was not incurred or aggravated in active service, and may not be presumed to be the result of herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 3. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 1310, 1131 (West 2002); 38 C.F.R. § 3.300, 3.303, 3.309, 3.311, 3.312 (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 the evidence submitted by or on behalf of the Veteran. 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 Veteran 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 Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran/Appellant and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran/Appellant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the appellant is expected to provide; and (4) request that the appellant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the appellant provide any evidence in her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA notice letters dated in July 2008 and April 2012 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187. The appellant was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claims. The letter informed her that additional information or evidence was needed to support her claims, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the appellant clearly has actual knowledge of the evidence the appellant is required to submit in this case; and (2) based on the appellant's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the appellant understands what was needed to prevail. 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 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). In this case, the appellant has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of her claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection for accrued benefits purposes and service connection for the cause of death . Thus, the Board finds that the appellant has actual knowledge as to the information and evidence necessary for her to prevail on her claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the appellant. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the appellant are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the appellant as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board concludes an examination is not needed. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed in greater detail below, the Board believes that there is no credible evidence suggesting an association between the Veteran's diabetes or cause of death and any event, injury, or disease in service, to include exposure to herbicides. Specifically, there is no credible evidence of competent in-service complaints, treatment, or diagnosis of diabetes; and no competent and credible evidence otherwise linking diabetes mellitus or any other cause of death to the Veteran's military service. In this regard, the Board acknowledges that in some instances, a lay person may be competent to suggest an association between a current disability and service. However, as set forth below, the determinative question on appeal is whether the Veteran service in Vietnam. If so, the Veteran would be presumed to have been exposed to herbicides. The VA's duty to assist in an accrued benefits claim is limited to obtaining evidence already constructively in VA's possession, and to obtaining evidence of the appellant's standing to pursue the claim, if not already of record. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(c). Thus, in light of the unique nature of claims for accrued benefits, there is no further duty to assist the appellant. Indeed, if additional evidence which is not constructively in VA's possession or pertaining to the appellant's standing to pursue her claim, were to be submitted, adjudicators would be precluded by law from considering it in support of the remaining accrued benefit claims. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Entitlement to service connection for diabetes mellitus, type II, with peripheral neuropathy and renal failure, as a result of exposure to herbicides, for accrued benefits purposes. Periodic monetary benefits to which a Veteran was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of death, and due and unpaid shall be paid to the surviving spouse. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(c). The entitlement of the accrued benefits claimant is derived from the Veteran's entitlement, and the accrued benefits claimant cannot be entitled to a greater benefit than the Veteran would have received had he lived. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998); Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. §§ 3.160(d), 20.1103, 20.1104. The evidence reflects that the Veteran filed a claim for service connection for diabetes mellitus in November 2006. He died in March 2008, without his claim having been adjudicated. Under law, his claim was extinguished with his death; however, the appellant filed a timely claim for cause of death and accrued benefits in June 2008, based upon the appeal which had been pending. Therefore, as explained above, the Board must now review the evidence in the file at the date of death, under the applicable law pertaining to service connection claims, to determine whether Veteran was entitled at the time of his death to any additional monetary benefits. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 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). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a 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". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The Board must assess the credibility and weight of all the 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 claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. On December 27, 2001, the Veterans Education and Benefits Expansion Act of 2001 was enacted. See Pub. L. No. 107-103, 115 Stat. 976 (2001). This law made substantive changes to 38 U.S.C.A. § 1116 pertaining to presumption of service connection for diseases associated with exposure to certain herbicide agents. Effective January 1, 2002, a Veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. See 66 Fed. Reg. 23168 (May 8, 2001) (to be codified at 38 C.F.R. §§ 3.307, 3.309). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2012). The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, type II diabetes mellitus, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2012). In this regard, Note 2 to 38 C.F.R. § 3.309(e) states that, for purposes of this section the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. In addition, on October 13, 2009, in accordance with authority provided in 38 U.S.C.A. § 1116 , the Secretary of VA announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new condition: ischemic heart disease, Parkinson's disease, and B cell leukemia. The final rule establishing the presumptions was issued in August 2010 and became effective August 31, 2010. Significantly, the amended 38 C.F.R. § 3.309(e) indicates that ischemic heart disease includes, but is 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." See 75 Fed. Reg. At 53, 106. However, Note 3 provides that for purposes of this section, the term ischemic heart disease does not include 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. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 61 Fed. Reg. 414,421 (1996), see also 67 Fed. Reg. 121, 42,600 (June 24, 2002). Abnormal sperm parameters and infertility have specifically been excluded from presumptive service connection based on herbicide exposure. See 68 Fed. Reg. 97, 27,630-27,641 (May 20, 2003). Notwithstanding the foregoing presumption provisions, the U.S. Court of Appeals for the Federal Circuit (Circuit Court) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Taking into account all relevant evidence, the Board finds that service connection is not warranted for diabetes mellitus, for accrued benefits purposes. In this regard, the Board notes that while the Veteran did have a diagnosis of diabetes at his death, there is no evidence of record linking that diagnosis directly to service, nor is the Veteran entitled to any presumptions based on the circumstances of his service. In support of the claim, the appellant has pointed to a letter sent to the Veteran in November 2008 indicating that VA records reflected that the Veteran served in Vietnam and was therefore presumed exposed to herbicides. This information, however, is not consistent with the information contained on the veteran's DD-214 as to where he served, which showed foreign service in Germany and Libya, but not in Vietnam. As such, this claim was remanded in part in April 2012 to determine whether the Veteran served in Vietnam during service, and/or whether, regardless of location, he might have been exposed to herbicides in service. In response to an inquiry, the Joint Services Records Research Center (JSSRC), in a November 2012 statement, indicated that none of the units that the Veteran was assigned to in service documented the use of Agent Orange or any other tactical herbicides. A January 2013 advisory opinion from the Director of the VA Compensation Service indicated that the November 2008 letter indicating the veteran has herbicide exposure had been sent to the Veteran in error. This opinion further indicated that there was no evidence that the Veteran had been exposed to herbicides in service at any time, and no evidence linking the Veteran's diabetes and its complications directly to service. As such, the Board finds that the preponderance of the evidence of record shows no service in Vietnam, and no evidence of actual herbicide exposure, and therefore service connection for diabetes on a presumptive basis as related to herbicide exposure is not warranted. The Board also observes that the Veteran during his lifetime expressed a belief that he was exposed to residual herbicides contained on aircraft that had carried Agent Orange. The Board finds that the Veteran is competent to state his recollections of his in-service experiences, but finds his vague assertions of herbicide exposure to be less credible than the negative evidence discussed hereinabove. The Board notes that the Veteran could also certainly show that his diabetes is directly related to service, but on that point, the claim also fails. As noted above, a January 2013 opinion from the Director of the VA Compensation Service indicates that there is no evidence of a nexus between the Veteran's diabetes and service. Further, the Veteran's service treatment records show no evidence of diabetes or the Veteran's claimed associated conditions of peripheral neuropathy and renal failure. There is no medical evidence of record showing that the Veteran was diagnosed with any of these conditions until approximately 1990, nearly 20 years after his separation from service. As there is no competent evidence of record suggesting a connection between any in-service exposure to herbicides and the Veteran's diabetes, no evidence of any manifestations or symptoms attributable to diabetes within the first year of discharge from service or until many years thereafter, and with no medical etiological evidence having been presented to link the Veteran's diabetes to service, the Board finds no basis to grant service connection. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, supra. Accordingly, the appeal is denied. Entitlement to service connection for the cause of the Veteran's death. The appellant claims that service connection is also warranted for the cause of the Veteran's death. The appellant appears to be claiming that the Veteran's diabetes led to his death, and that this diabetes was incurred in service. Most of the legal criteria relevant to service connection claims, and stated above, is also relevant to the issue of cause of death. Service connection for the cause of a Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of death. See 38 C.F.R. § 3.312(a) (2012). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause of death, or be etiologically related. See 38 C.F.R. § 3.312(b) (2012). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially to death. It is not sufficient to show that it casually shared in producing death; rather it must be shown that there was a causal connection. See 38 C.F.R. § 3.312(c) (2012). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the Veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See 38 C.F.R. § 3.312(c) (1) (2012); Lathan v. Brown, 7 Vet. App. 359 (1995). As noted above, the Veteran died in March 2008. The cause of death was determined to be chronic obstructive pulmonary disease (COPD), due to, or as a consequence of, hypertension and diabetes mellitus. No significant conditions contributing to death but not resulting in the underlying cause of death were listed. Taking into account all relevant evidence, the Board finds that service connection is not warranted for the cause of the Veteran's death. In this regard, the Board notes, as above, that the Veteran was not service connected for any disabilities at the time of his death. Although the appellant argues that the Veteran should be service connected for diabetes mellitus, which was listed as contributing to his death, as noted above, the evidence of record does not show that service connection for diabetes is warranted. As to the Veteran's primary cause of death, COPD, and contributing factor of hypertension, there is no evidence of record linking these disabilities to service, and no evidence that they manifested until many years after the Veteran's separation from service. Under these circumstances, the Board concludes that the record does not support a finding that a service-connected disability caused or contributed substantially or materially to cause the Veteran's death. The claim for service connection for the cause of the Veteran's death must therefore be denied. In reaching the decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for diabetes mellitus, type II, with peripheral neuropathy and renal failure, as a result of exposure to herbicides, for accrued benefits purposes, is denied. Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ DAVID WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs