Citation Nr: 1318071 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-44 140 ) 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: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1959 to April 1960, and from June 1962 to November 1981, including service in the Republic of Vietnam. He died in November 2008, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. No hearing was requested. FINDINGS OF FACT 1. The Veteran died in November 2008 from metastatic cancer, and he did not have a separate diagnosis of lung cancer at the time of death; the cancers manifested many years after service and are not attributable to service, to include as due to herbicide exposure. 2. The disabilities for which the Veteran was service-connected at the time of his death did not materially contribute to death, combine to cause death, aid or lend assistance to the production of death, or impair his health to an extent that would render him materially less capable of resisting the effects of other disease or injury primarily causing death. CONCLUSION OF LAW The criteria to establish service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance upon receipt of a substantially complete claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA notice requirements apply to all elements of a claim, including the degree and effective date of a disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper notice should be provided prior to the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In the context of a claim for dependency and indemnity compensation (DIC), to include service connection for cause of death, proper notice must include a statement of any conditions for which the veteran was service-connected at the time of death, an explanation of the evidence and information required to substantiate a claim based on a previously service-connected condition, and an explanation of the evidence and information required to substantiate a claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Here, the appellant was notified in February 2009, prior to the initial denial of her claims, of the evidence and information necessary to establish entitlement to DIC based on service connection for the cause of the Veteran's death, as well as the responsibilities of VA and the appellant in obtaining or providing such information. She was specifically advised of the conditions for which the Veteran was service-connected at the time of death, the conditions for which service-connection had been denied during the Veteran's lifetime (including various cancers), and the evidence and information needed to establish that the Veteran's death was due to a service-connected condition, as required by Hupp. The Board notes that the appellant was not specifically notified of the evidence and information necessary to establish a disability rating and effective date, as required by Dingess/Hartman. However, she is not prejudiced by this deficiency, as her claim is being denied herein and, therefore, any questions as to the proper disability rating or effective to be assigned are rendered moot. Moreover, there has been no allegation of any prejudice due to any notice defect in this case. Under the circumstances of this case, the appellant has been afforded adequate VCAA notice, and the essential fairness of the adjudication was not affected by any possible notice defects. See Shinseki v. Sanders, 129 S.Ct. 1696, 1705-06 (2009); Sanders v. Nicholson, 487 F.3d 881, 889 (2007). There is also no indication of any pertinent outstanding records. There is a paper claims file and a Virtual VA paperless claims file (a highly secured electronic storage system) pertaining to this appeal. The Board has reviewed both files, and all pertinent documents are associated with the paper file. The Veteran's service treatment records have been obtained, as well as his certificate of death, which lists the immediate cause of death. The evidence also includes VA treatment records dated in 2005 and 2008, as well as the Veteran's private treatment records dated from 2003 through shortly before his death in 2008, including the results of biopsies and other diagnostic tests. There is no argument or indication that any records necessary for a fair adjudication remain outstanding. The Board notes that the Veteran was initially diagnosed with colorectal cancer in 1997 or 1998, and such records have not been obtained. However, the evidence dated from 2005 forward summarizes the prior diagnosis and treatment, and the circumstances of the recurrence of the Veteran's cancer in 2005, to include the diagnosis of metastatic cancer in the lungs, liver, and adrenal glands. The appellant argues that these cancers are due to Agent Orange exposure, as opposed to metastatic cancers from the prior colorectal cancer diagnosis. Moreover, the appellant has not authorized VA to obtain any further private records. As such, VA has made adequate efforts to obtain pertinent evidence on her behalf. The Board also notes that a VA medical opinion was not obtained in this case. However, the appellant and her representative simply argue that the Veteran's lung cancer and other cancers, which are listed as "metastatic cancer" on his death certificate as the principal cause of death, should be presumptively service-connected based on Agent Orange exposure during service. As discussed below, although the evidence establishes presumptive Agent Orange exposure, there is no competent evidence suggesting a relationship between the Veteran's cause of death and service, or that his already service-connected disabilities caused or contributed to his death. Therefore, no reasonable possibility exists that obtaining a medical opinion would aid in substantiating the claim for service connection for the cause of the Veteran's death. See 38 U.S.C.A. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345, 1348-49 (Fed. Cir. 2008). VA's duty to obtain a medical opinion or examination is not triggered. In sum, a remand for further development would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the appellant. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the appellant at every stage in this case, at least insofar as any errors were not harmful to the essential fairness of the proceedings. As such, the appellant will not be prejudiced by a decision on the merits of her claim at this time. II. Analysis A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal 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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability is one that was incurred in or aggravated during service, or may be presumed to have been incurred during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The pertinent presumptive regulations will be discussed below. Where a disease is first diagnosed after service, service connection will be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In this case, the certificate of death reflects that the Veteran died in November 2008 with an immediate cause of death of metastatic cancer, and no identified significant conditions contributing to death. Prior to his death, the Veteran had sought service connection for cancers of the colon, liver, lungs, and adrenal glands based on Agent Orange exposure during his service in Vietnam. However, these claims were denied in 2006, and no claims were pending at the time of his death. Rather, service connection was in effect for a right shoulder disability and a right knee disability, with a combined rating of 20 percent, at the time of death. Again, the condition of metastatic cancer listed on the death certificate was not service-connected at the time of the Veteran's death. The appellant does not assert that the Veteran's already service-connected right knee and right shoulder disabilities caused or contributed to cause his death. Further, the Board notes that such disabilities did not involve active processes affecting vital organs, and there is no indication that there were resulting debilitating effects or general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of the other diseases or injury that primarily caused his death. See 38 C.F.R. § 3.312(c)(3). As such, the already service-connected disabilities were not contributory causes of the Veteran's death. Id. Instead, the appellant and her representative contend that the Veteran's lung cancer was a separate condition, and not metastatic from his colon cancer. Alternatively, the appellant argues that the Veteran's other sites of cancer, including colon cancer, should be presumptively service-connected due to Agent Orange exposure. VA regulations provide that, if a veteran served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, he or she will be presumed to have been exposed to herbicides (Agent Orange) during such service. Further, certain listed diseases, including lung cancer, will be presumed service-connected due to such exposure if they manifest to a compensable degree at any time, even if there is no record of the disease during service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA's Secretary is tasked with determining whether presumptive service connection is warranted for a disease as a result of herbicide exposure, based on all available sound medical and scientific information. See 38 U.S.C.A. § 1116(b),(c). Further, presumptive service connection on such basis may not be granted for any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See, e.g., 68 Fed. Reg. 27630 (May 20, 2003). As pertinent to this case, the Secretary has repeatedly determined that presumptive service connection based on herbicide exposure is not warranted for colorectal cancer (including small intestine and anus), or cancers of the liver and endocrine system (such as the adrenal glands). See, e.g., 75 Fed. Reg. 81332 (Dec. 27, 2010). Here, the Veteran's service personnel records confirm that he served in Vietnam from November 1970 to November 1971, during the presumptive period. See DD Form 214. As such, he is presumed to have been exposed to herbicides during such exposure. However, the Board finds that the evidence of record fails to show that the Veteran's death was principally or contributorily caused by a disease that is subject to presumptive service connection based on such herbicide exposure. As summarized in private treatment records dated in October 2008, the Veteran was first diagnosed with stage I colon or colorectal cancer in 1997, and the cancer reoccurred with distant metastatic disease in 2005. He was diagnosed with widespread metastatic colon cancer in June 2005, including in the adrenal glands bilaterally, the liver, and the lungs. After receiving various treatments including chemotherapy, the Veteran had progressive disease in the liver and lungs, as shown by an MRI of the liver and a CT of the lungs in the spring of 2008 that showed numerous bilateral pulmonary lesions. He succumbed to cancer in November 2008. Similarly, VA treatment records dated in November 2005 noted that the Veteran was diagnosed with colon cancer in 1998, at which point he had a colectomy with resection of tumor and no follow-up chemotherapy or radiation. He then had a recurrence of colon cancer with metastases to the liver, lungs, and adrenal glands in May 2005. He was being treated for this condition by private providers. Specifically, the Veteran underwent multiple biopsies, CT scans, and MRIs of the lungs, adrenal glands, and liver, and the results were all interpreted to be metastatic lesions or adenocarcinomas (cancer) with an origin arising in the colorectal region. For example, an October 2005 private record noted that biopsies of the adrenal glands, liver, and both lungs showed adenocarcinoma most compatible with colorectal cancer rather than lung or pancreas, and not being typical at all of large cell lymphoma. See also June 2005 biopsy of liver; June 2006 biopsy of bilateral adrenal glands and liver; October 2006 biopsy of lung; July 2008 and August 2008 CTs of the chest (showing extensive bilateral pulmonary parenchymal metastatic disease, and multiple lung nodules consistent with metastatic disease); October 2008 CT of the abdomen for history of metastatic colon carcinoma with worsening jaundice (showing pulmonary parenchymal metastatic disease). The Board notes that the appellant's representative argued in May 2013 that a lung biopsy was not performed to determined whether the disease was metastatic. However, this is inconsistent with the other evidence of record. Rather, lung biopsies were interpreted to show metastatic cancer. Additionally, the appellant asserted in a February 2009 statement that biopsies had shown that there was a separate lung cancer and that cancer of the other organs was metastatic from that tumor, and not from his prior colon cancer. This is also inconsistent with the contemporaneous medical evidence, as summarized above. The appellant and her representative, as laypersons, are not competent to testify as to the existence of a separate lung cancer or the cause of the Veteran's death. Rather, the medically complex nature of Veteran's disorders of cancer in multiple organs requires specialized knowledge, training, or experience to respond to these questions. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Therefore, the testimony and arguments by the appellant and her representative in this regard are not probative or persuasive. Although the appellant may be competent to testify to what the Veteran's providers told her and the Veteran about his treatment and tests results, the Board finds that any testimony to this effect is outweighed by the contemporaneous medical evidence. Again, the private medical evidence clearly shows that the Veteran's cancers were metastatic from the previously diagnosed colorectal cancer, based on multiple biopsies and other diagnostic tests. The appellant has not submitted any contrary medical opinions in support of her claim. The Board notes that a VA examiner stated in a February 2006 addendum report (prior to the Veteran's death) that the Veteran had pulmonary carcinoma or lung cancer that was likely due to his chronic tobacco abuse (or smoking history). However, this does not establish that there was a separate lung cancer. Rather, the initial VA examiner noted in a November 2005 VA examination report that the Veteran had metastatic carcinoma to the lungs, with a presumed site of the original tumor of adenocarcinoma of the colon. This was based on the Veteran's report. The private medical records showing the Veteran's work-up and treatment from 2005 forward, as summarized above, are consistent with this reported history. The appellant argues that the Veteran's cancers of the colon and other organs must be due to Agent Orange exposure because there is no history of cancer in his family and Agent Orange has been shown to cause cancer. However, as discussed in detail above, only certain types of cancer have been presumptively linked to Agent Orange exposure, and those conditions were not diagnosed in this case. As noted above, the appellant is not competent to provide any opinion as to the cause of the Veteran's death, to include the cause of his cancers in various organs. Moreover, in addition to the lack of a medical opinion linking the Veteran's cancers to military service, to include Agent Orange exposure, there is some evidence of other possible causes of his conditions. During VA treatment sessions in November 2005, the Veteran reported a family history of colon cancer with no further explanation, although he generally denied cancer history in his family at other times, such as in an August 2005 private record. The Veteran also reported that he quit smoking in 1991 during the November 2005 VA treatment session, and private treatment records reflect an extensive smoking history. See April 2003 record (reporting smoking 3 packs per day for approximately 25 years until quitting in 1981); August 2005 record (reporting a 45 pack-year smoking history). Accordingly, although the Veteran served during the relevant time period and later developed cancer in the lungs, which is a presumptive disease for Agent Orange exposure, service connection cannot be established for the cause of his death on a presumptive basis as due to Agent Orange exposure. This is because the preponderance of the evidence shows that his cancer in the lungs was not a primary cancer but, rather, was metastatic from the colorectal cancer, which is not subject to presumptive service connection. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Board has also considered whether service connection is warranted for the cause of the Veteran's death on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In this regard, there is no argument or indication that the Veteran's colorectal cancer, which eventually metastasized to the liver, adrenal glands, and lungs, to cause his death, was related to any injury or disease during service. There was also no treatment for any of these conditions in his service treatment records, and there is no medical evidence or opinion linking such conditions directly to service. As such, service connection for the cause of death is not warranted on a direct basis. See 38 C.F.R. § 3.303. As cancer of any organ is essentially a malignant tumor, the Board has also considered whether presumptive service connection is warranted for the cause of the Veteran's death as a chronic disability. Certain chronic diseases, including malignant tumors, will be presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year after separation from service, even if there is no evidence of such disease during service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Here, the evidence reflects that the Veteran was first diagnosed with colon cancer in 1997, many years after his separation from service. As such, service connection is not warranted on this basis. Id. There is no argument or indication that any other presumptive provisions would apply. In sum, the evidence does not show that service connection is warranted for the principal cause of the Veteran's death of metastatic cancer on either a direct or a presumptive basis. Further, the evidence does not establish that his service-connected right shoulder or right knee disabilities caused or contributed to his death, to include by impairing his health to such an extent that he was materially less capable of resisting the effects of his metastatic cancer. As such, service connection is not warranted for the cause of the Veteran's death. 38 C.F.R. § 3.312. As the preponderance of the evidence is against service connection for the cause of the Veteran's death, the benefit of the doubt doctrine does not apply and the appellant's claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs