Citation Nr: 1318382 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 12-11 800 ) 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. ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served in the Philippine Guerilla and Combination Service from March 1945 to March 1946. He died in January 2006 and the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines that, in relevant part, denied service connection for the cause of the Veteran's death. In August 2012, the Board remanded the case to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The RO continued the denial of the claim as reflected in the February 2013 supplemental statement of the case and returned this matter to the Board for further appellate consideration. 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). FINDINGS OF FACT 1. The Veteran died in January 2006. The Veteran's death certificate lists the immediate cause of death as metastatic renal cell carcinoma, with parotitis listed as a significant condition contributing to death. 2. At the time of his death in January 2006, the Veteran was not service connected for any disability. 3. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran's metastatic renal cell carcinoma and/or parotitis, which were initially demonstrated years after service, were causally related to, or aggravated by, active service. 4. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran had a service-connected disability which was either a principal or contributory cause of the Veteran's death. CONCLUSION OF LAW The cause of the Veteran's death was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1310 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Prior Board Remand The Board observes that this case was previously remanded in August 2012 in order to obtain the Veteran's treatment records from the San Francisco VA Medical Center (VAMC) for the period from January 2004 to January 2006. The record documents that these treatment records were obtained by the RO and considered prior to issuing the February 2013 supplemental statement of the case. See 38 C.F.R. § 3.159(c)(2). It appears there was substantial compliance with the prior remand order and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. VA's Duties to Notify and Assist The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). When adjudicating a claim for Dependency and Indemnity Compensation (DIC), VA must provide notice that includes the following: (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. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Appropriate notice was provided to the appellant in a September 2010 letter, prior to the initial RO decision. As for the duty to assist, the Veteran's service treatment records (STRs) and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The appellant has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with the file. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. III. Service Connection for Cause of Death The appellant seeks entitlement to service connection for the cause of the Veteran's death. The Veteran died in January 2006. The death certificate, which was signed by a physician, lists the immediate cause of death as metastatic renal cell carcinoma with parotitis listed as a significant condition contributing to death. At the time of the Veteran's death, he was not service connected for any disabilities. In the instance of a Veteran's death, certain enumerated survivors are eligible for compensation if the death is found to be service connected. The death of a Veteran will be service connected if a service-connected disability was either the principal or a contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). 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. 38 C.F.R. § 3.312(c)(3). Service connection may be granted if the evidence demonstrates that a disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. While the Board must review the entire record, it does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's STRs are negative for any complaint of, or treatment for cancer, kidney issues or parotitis. The Veteran's reports of physical examination from March 1946 and June 1946 reflect that his endocrine, genito-urinary, skin and lymphatic systems were all normal. The earliest clinical evidence of renal cancer is May 2005, approximately 60 years after separation from service. The Veteran's May 2005 San Francisco VAMC records reflect that the Veteran sought medical treatment as a result of blood in his urine. After a computed tomography (CT) scan was completed, it was found that the Veteran had a left renal mass and he was later diagnosed with renal cell carcinoma. The Veteran was first treated for parotitis in January 2006 at the San Francisco VAMC. The medical records show no previous history of blood in the Veteran's urine, cancer or parotitis. The lapse of time between service separation and the earliest documentation of current disability or symptoms of a current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, whether the Veteran had renal cell carcinoma and/or parotitis in-service, falls outside the realm of common 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, medical evidence will be required to establish a medical diagnosis of these conditions in-service. The Veteran's STRs are negative for kidney issues, cancer and parotitis. He was initially diagnosed with renal cell carcinoma in May 2005 and parotitis in January 2006, approximately 60 years after service. Thus, there is no credible evidence of disease or injury in-service or continuity of symptomatology since service. Moreover, there is no medical evidence which causally relates the Veteran's renal cell carcinoma and/or parotitis to service. The Board acknowledges the appellant's argument that the Veteran died from service connected disabilities. However, the appellant has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. As such, the opinions of the appellant do not constitute competent medical evidence and lack probative value. See Jandreau, 492 F.3d at 1377 n.4. In sum, there is no credible evidence of any service connected disabilities, continuity of symptoms since service or nexus between the Veteran's cause of death and active service. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for the cause of the Veteran's death. The Board appreciates the Veteran's service and is also sympathetic to the appellant's situation as a widow; however, the Board is bound in its decisions by the statutes enacted by the Congress of the United States and VA regulations issued to implement those laws. See 38 U.S.C.A. § 7104(c); see generally, Owings v. Brown, 8 Vet. App. 17, 23 (1995). The preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for the cause of the Veteran's death must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs