Citation Nr: 1317512 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 06-32 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION Please note 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). The Veteran served on active duty from January 1945 to January 1946. He died in 1982. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, which denied service connection for the cause of the Veteran's death. The Board reopened the appellant's claim and remanded this case in March 2009, and later denied the claim on the merits in September 2009. The appellant appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated the Board's decision in September 2010 and remanded it to the Board. The Board remanded the claim to the RO in October 2011 for additional development in compliance with the JMR. The appellant's Virtual VA file has also been reviewed as part of her appeal. FINDINGS OF FACT 1. The Veteran's death certificate lists the cause of death cardiac arrest due to severe anemia and rectosigmoid cancer with metastasis. 2. At the time of his death, the Veteran was not service-connected for any disabilities. 3. A disability of service origin did not contribute substantially and materially to his death, or hastened it, or otherwise aided or lent assistance to his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 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). Prior to the initial adjudication of the appellant's claim, a letter dated in August 2005 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). In the context of a DIC claim, section 5103(a) 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, the Veteran was not service connected for any conditions. The August 2005 letter and a subsequent May 2009 letter satisfied the remaining notice elements. The Veteran's service treatment records, private treatment records, and death certificate, as well as the appellant's lay statements have been associated with the claims file. VA also obtained medical opinions. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A VA opinion was obtained in August 2009, but it was based on an insufficient rationale. Pursuant to the September 2010 JMR, the Board remanded the claim to obtain a supplemental opinion which adequately supported by an explanation from the examiner. An additional opinion was obtained in January 2012. The VA opinions obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the medical evidence; document and consider the relevant medical facts and principles; and provide an opinions as to the etiology of the Veteran's cause of death. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The directives of the prior remand have been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall where there was substantial compliance with remand directives). 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 for Cause of Death 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). This determination will be made by exercising sound judgment, without recourse to speculation, after a careful analysis of all the facts and circumstances surrounding the death, including, particularly, autopsy reports. Id. 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). It is not sufficient to show that it casually shared in producing death, but rather it must be shown there was a causal connection. 38 C.F.R. § 3.312(c). See, e.g., Schoonover v. Derwinski, 3 Vet. App. 166, 168-69 (1992) (addressing requirements for consideration of disabilities attributable to service as contributory, as well as direct cause of death in DIC claims). See also Mattern v. West, 12 Vet. App. 222, 227-28 (1999). 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). Service treatment records for the Veteran's period of active duty include an October 1945 enlistment physical examination and a January 1946 separation physical examination. These records are negative for any signs, symptoms, or treatment for a heart disorder, anemia or cancer. A July 2005 Certificate of Medical Treatment from a private medical center documented the treatment the Veteran received at the facility in 1947 and 1948. In March 1947, the Veteran was seen for complaints of fever and weakness; he was diagnosed with anemia and iron-deficiency. In April 1947, he was seen for such complaints as fever, bloody diarrhea and abdominal pains. Diagnoses included anemia, parasitism, viral gastroenteritis, typhoid enteritis, rule out amoebiasis and rule out amoebic colitis. In June 1947, he was scheduled for a barium enema. In January 1948 he was seen for complaints of abdominal pains and pallor. He was diagnosed with an abdominal mass. The July 2005 certificate of medical treatment reported that all records, charts and abstracts of medical consultations were no longer available; the certificate was issued upon request of the Veteran's relatives for reference purposes. A July 1981 private treatment record reports the Veteran underwent a biopsy for an annular mass. He had an 8-month history of experiencing anal bleeding upon defecation. A punch biopsy was performed with results consistent with well-differentiated adenocarcinoma of the rectum. Remaining private treatment records of July to August 1981 document the treatment the Veteran received for his cancer. In 1982, the Veteran died. The death certificate lists the cause of death as cardiac arrest. Severe anemia and rectosigmoid cancer with metastasis were listed as underlying causes. A November 2001 record from the provincial health office of the province of Tarlac reported that the Veteran was admitted to the medical facility on January 30, 1982. When the Veteran died, diagnosed disorders included anemia, rectosigmoid cancer and abscess, right buttock. A May 2002 record from the provincial health office confirmed these findings and additionally reported that the Veteran died as a result of the diagnosed disorders. In an August 2009 VA opinion, the examiner indicated that the claims file was reviewed. With regard to the question of whether anemia was developed during the Veteran's period of active service, the examiner concluded that it was as least as likely as not that anemia was caused by or a result of the Veteran's active service. She explained that the Veteran was a recognized guerilla during his active service and was exposed to hazardous health elements, specifically poor nutrition, possible lack of iron in the diet, and ingestion of food probably infected with parasites. These factors caused the iron deficiency anemia diagnosed with after service. However, the examiner concluded that the Veteran's death was not caused by or a result of iron deficiency anemia incurred during active service. She explained that although the Veteran had severe anemia at the time of his death, the cause of this anemia was the rectosigmoid cancer, which the Veteran did not have during active service. The rectosigmoid cancer and resultant metastases contributed mainly to the Veteran's demise. In a January 2012 opinion, a different VA examiner reviewed the claims file and also concluded that the Veteran's cause of death was not related to service. He stated that the iron deficiency anemia that the Veteran was diagnosed with in 1947 was a non-fatal condition that could be corrected with iron supplementation. That condition did not cause or materially contribute to his death. The severe continuous blood loss from his rectosigmoid cancer is what likely caused his death. Service connection for the cause of the Veteran's death is not warranted. The competent medical evidence in this case, specifically the August 2009 and January 2012 VA opinions, both concluded that the anemia diagnosed after the Veteran's discharge from service did not cause or contribute to his death. There is no other competent medical evidence to refute this conclusion or to otherwise suggest that the Veteran's cause of death was related to service. To the extent that the appellant has asserted that the Veteran's cause of death was related to service, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, she has not demonstrated any specialized medical knowledge or expertise. As to the specific issue in this case, the etiology of the conditions listed on the Veteran's death certificate (cardiac arrest, anemia, rectosigmoid cancer) fall outside the realm of knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, while the appellant's own statements have been considered, they are not competent medical evidence and do not establish a link between the Veteran's cause of death and his period of service. The preponderance of the evidence is against finding that the Veteran's cause of death was etiologically related to active service. The appeal 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. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs