Citation Nr: 1319730 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-25 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from January 1968 to December 1969. The Veteran died in November 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran's death certificate shows that the immediate cause of his death was metastatic spindle cell carcinoma of the lung (lung cancer). 2. At the time of the Veteran's death, his service-connected disabilities were degenerative disc disease of lumbar spine, rated 60 percent since August 15, 1996, status post left wrist fracture with secondary degenerative changes, deformity and carpal tunnel syndrome, rated 40 percent since August 15, 1996, and carpal tunnel syndrome of right hand, rated 10 percent since September 1, 1998. The Veteran had been in receipt of a total rating based upon individual unemployability due to service-connected disabilities since September 20, 1998. 3. The Veteran's death did not result from any disorder incurred in or aggravated by service. 4. The Veteran's service-connected disabilities were not continuously rated totally disabling for 10 years prior to his death, nor was the total disability evaluation in effect from the date of discharge from military service. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1310, 5107, 5103A (West 2002); 38 C.F.R. § 3.312 (2012). 2. The criteria for establishing entitlement to DIC under 38 U.S.C.A. § 1318 are not met. 38 U.S.C.A. §§ 1318, 5107, 5103A, 5107 (West 2002); 38 C.F.R. § 3.22 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Here, the VCAA duty to notify was only partially satisfied by way of a letter sent to the appellant in February 2006 (prior to Hupp). The letter informed her of her and VA's respective duties for obtaining evidence. She was also asked to submit evidence and/or information in her possession to the RO and was told that medical evidence was needed showing that the Veteran's service-connected conditions caused or contributed to his death. In addition, that letter informed her that it must be shown that the condition that contributed to the Veteran's death was caused by injury or disease that began during service. The notice did not include a statement of the conditions for which the Veteran was service-connected at the time of his death. Nevertheless, lack of harm may be shown (1) when any defect was cured by actual knowledge on the part of the claimant; (2) when a reasonable person could be expected to understand from the notice what was needed; or (3) when a benefit could not have been awarded as a matter of law. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that the appellant has shown actual knowledge of how to substantiate her claim. The appellant was advised in the June 2009 statement of the case of the disabilities for which the Veteran was service-connected during his lifetime. She was also provided a copy of the laws and regulations pertaining to cause of death claims in the June 2009 statement of the case. She demonstrated that she had actual knowledge of what was needed to establish her claim as she submitted contentions pertinent to the issues at hand. Additionally, the appellant was represented by a Veterans Service Organization throughout the course of her appeal. The record clearly establishes that the Veteran died as a result of lung cancer. The appellant does not dispute this fact and has submitted arguments pertinent to that point and has been advised to submit evidence in support of her allegations and this appeal. Accordingly, any failure to provide Hupp-compliant notice does not prevent adjudication by the Board. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Further, the appellant has not alleged any prejudice as a result of an untimely or deficient VCAA notification. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA also has a duty to assist the appellant in the development of the claim. This duty includes making reasonable efforts to assist her in obtaining evidence necessary to substantiate the claim unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. In this regard, VA ensured the Veteran's service medical records were in the claims folder, in addition to postservice treatment records. The appellant specifically declined a hearing. In her substantive appeal, she requested that the record reflect "[the Veteran's] Merchant Marine service, where he had served to [sic] tours to Vietnam, carrying munitions for troops during Vietnam War." Service in the Merchant Marine is considered to be active service for compensation benefits purposes if it was Oceangoing Service during the Period of Armed Conflict from December 7, 1941, to August 15, 1945 (World War II era). 38 C.F.R. § 3.7(x)(15) (2012). The appellant does not assert that the Veteran served during this period, and no other periods of service in the Merchant Marine are recognized as being active duty for the purposes of VA compensation benefits. Development of service records and the Veteran's DD Form 214 reflect his service from January 1968 to December 1969 in the U. S. Army. This record noted foreign or sea service in Europe only, specifically, Germany, not Vietnam. The Appellant's reports of the Veteran's alleged Merchant Marine service are in direct conflict with objective documentation of record. Further, the January 1970 original claim for VA benefits completed by the Veteran only reported service in the U.S. Army. For these reasons, the Board finds that the Veteran's active military service consists solely of his active service in the U.S. Army from January 1968 to December 1969 and further development on this point would be futile as, even if the Veteran had served in the Merchant Marine during the period the appellant reports, such service cannot be recognized as active duty service for the purposes of VA compensation benefits. The Board also acknowledges VA has not obtained a medical opinion with respect to the appellant's cause-of-death claim. In DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the Federal Circuit held that 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical opinion or examination for a DIC claim, but it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim. The Federal Circuit added that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) since this provision is explicitly limited to claims for disability compensation (service connection), which is defined as a monthly payment made by VA to a Veteran, and therefore does not pertain to a DIC claim. Id. Subsequently, in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the Federal Circuit held that in the context of a DIC claim, VA must also consider that 38 U.S.C.A. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination when no reasonable possibility exists that such assistance would aid in substantiating the claim. In this case, a review of the evidence shows that there is no reasonable possibility that the lung cancer which caused the Veteran's death was related to service or that any service-connected disability caused or contributed to the Veteran's death. Given the absence of in-service evidence of manifestations of lung cancer and no evidence of this disease for decades after separation, a remand for a VA opinion would unduly delay resolution. Therefore, the Board concludes that no reasonable possibility exists that such assistance would aid in substantiating the appellant's claim. Significantly, neither the appellant nor her representative has identified any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection for the cause of death The Veteran's death certificate shows that the immediate cause of his death was metastatic spindle cell carcinoma of the lung. Dependency and indemnity compensation may be awarded to a Veteran's surviving spouse from a service- connected or compensable disability under 38 U.S.C.A. § 1310 and 38 C.F.R. § 3.312. To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by service was either the principal, or primary cause of death, or that it was a contributory cause of death under 38 C.F.R. § 3.312(a). 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, or be etiologically related. 38 C.F.R. § 3.312(b). A contributory cause of death is defined as one inherently not related to the principal cause. 38 C.F.R. § 3.312(c). For a service-connected disability to constitute a contributory cause, it must be shown that it "contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death." Id. 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. The Board must also determine whether the Veteran had a disability incurred in or aggravated by service that was either the principal, or primary cause of death, or that it was a contributory cause of death. In its review of the record, the Board must determine whether the evidence supports the claim or if it is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant contends that the Veteran's service-connected disorders greatly affected the Veteran and ultimately resulted in his death. See May 2013 brief. First, the Board will consider the question of whether the condition which caused the Veteran's death, lung cancer, was incurred in or aggravated by military service. When it is established that a veteran was exposed to herbicides while in service and that veteran subsequently develops one of a list of diseases, including lung cancer, to a degree of 10 percent or more, the disorder shall be presumed to have been incurred during service absent affirmative evidence showing that the disease was not incurred in service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6),(d), 3.309(e). Herbicide exposure is presumed for any veteran who sets foot within the land borders of Vietnam during the Vietnam Era. 38 C.F.R. § 3.307; see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). However, the weight of the evidence is against the conclusion that the Veteran ever set foot in Vietnam. Neither his DD Form 214, nor his own statements, nor his service treatment records, ever place the Veteran in the Republic of Vietnam. His DD 214 does not contain any awards or medals that would connote Vietnam service. Service treatment records fail to show that any treatment was ever provided to the Veteran from any medical station in Vietnam. Therefore, as the Veteran did not serve in Vietnam during his active military duty, he is not presumed to have been exposed to herbicides such as Agent Orange during active military service. 38 C.F.R. §§ 3.307, 3.309. As such, lung cancer cannot be linked to service on a presumptive basis due to Agent Orange exposure. Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors (to include lung cancer), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, the Board finds that the evidence does not demonstrate that the Veteran's fatal lung cancer had its onset during active service or was otherwise manifested to a compensable degree within the first year immediately following his discharge from active duty in December 1969. Neither the appellant nor her representative has presented any evidence to the contrary. The medical evidence of record includes service treatment records (STRs) which are silent for complaints or findings related to the lungs. Notably, on August 1969 service separation examination, the Veteran's lungs and chest were evaluated as normal. Moreover, the postservice medical evidence does not indicate any findings of treatment for lung cancer prior to the Veteran's death decades after service. It is not contended otherwise. Post-service treatment records generally reveal treatment for chronic joint pain (primarily back pain). Of record regarding the lungs is a December 1996 treatment record indicating the Veteran complaining of dry coughs, no sputum. The physician noted the Veteran worked as a construction worker in dusty environments. On evaluation, the Veteran's lungs were clear bilaterally. A November 1997 VA progress record noted that computed tomography angiography was requested for the Veteran's lungs. This same record noted an assessment of tobacco abuse and sporadic cough "probably physiologic." Significantly, in a VA smoking cessation intake questionnaire, the Veteran admitted to smoking over 2 packs of cigarettes a day since age 16. Further, nothing in the postservice treatment records indicates an earlier diagnosis of lung problems that would put its onset in service. Notably, the Veteran filed a claim for service connection for an injury to his left wrist and left pelvis, but not for a lung disorder, immediately following separation in December 1969. Continuity of symptomatology, as it would relate to lung cancer has not been claimed either, nor is it shown by the evidence. In the recent case of Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Malignant tumors are recognized as chronic disorder by 38 C.F.R. § 3.309(a), as noted above. For these reasons, service connection for lung cancer on a direct or presumptive basis is therefore denied. Next, the Board will consider whether the Veteran's already service-connected low back, and left and right wrist disabilities caused or contributed substantially or materially to cause death. There is no probative evidence suggesting a link between the Veteran's service-connected disabilities and his later diagnosis of lung cancer. The Board acknowledges the appellant's claims suggesting her husband's death was due to his service-connected disabilities; however, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining whether low back and bilateral wrist disabilities contributed to lung cancer, a complex disease process, 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)." For these reasons, the record does not support a finding that the Veteran's service-connected disabilities were related to the Veteran's death. 38 U.S.C.A. § 1318 Benefits The appellant has not provided specific contentions with regard to her assertions that she is entitled to DIC benefits under the provisions of 38 U.S.C.A. § 1318. Pursuant to 38 U.S.C.A. § 1318(a), benefits are payable to the surviving spouse and to the children of a "deceased Veteran" in the same manner as if the death were service-connected. A "deceased Veteran" for purposes of this provision is a Veteran who dies not as the result of his/her own willful misconduct, and who was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability(ies) rated totally disabling. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22(a). The service-connected disability(ies) must have been: (1) continuously rated totally disabling for a period of 10 or more years immediately preceding the Veteran's death; or (2) continuously rated totally disabling since the Veteran's discharge or other release from active duty and for at least 5 years immediately preceding death; or (3) the Veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. Id. The total disability rating may be schedular or based on individual unemployability under 38 C.F.R. § 4.16. 38 C.F.R. § 3.22(c). "Entitled to receive" means that, at the time of death, the Veteran had service-connected disability(ies) rated totally disabling by VA but was not receiving compensation for reasons specified in the regulations which are not relevant here (such as withholding or waiver of payment), or because the Veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error (CUE) in a VA decision concerning the issue of service connection, disability evaluation, or effective date. 38 C.F.R. § 3.22(b). Claims under 38 U.S.C.A. § 1318 will be adjudicated based on decisions rendered during the Veteran's lifetime. 38 C.F.R. § 20.1106. Thus, the only possible ways for the appellant to prevail on a claim for benefits under 38 U.S.C.A. § 1318 would be: (1) meeting the statutory duration requirements for a total disability rating at the time of death; or (2) showing that such requirements would have been met but for CUE in a decision on a claim filed during the Veteran's lifetime. The threshold legal requirement for establishing legal requirement for establishing entitlement to this benefit is that at the time he died the Veteran must have been receiving (or entitled to receive) compensation for service-connected disability rated totally disabling for 10 or more years. The Veteran had a 100 percent rating based on disabilities of the low back and both wrists, effective from September 1998. Since he died in November 2005, he had been receiving his 100 percent rating for less than 10 years prior to his death. He had not been continuously rated totally disabling since his discharge from service as that was in December 1969, and he was not an Ex-POW. There is nothing in the record indicating (nor is it alleged) that the Veteran should have been receiving/was entitled to receive compensation at the total rate prior to September 1998. It is not alleged that any prior rating decision was clearly and unmistakably erroneous. Cole v. West, 13 Vet. App. 268 (1999). Thus, the threshold legal criteria for benefits under 38 U.S.C.A. § 1318 are not met, and the appellant's claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to DIC under 38 U.S.C.A. § 1318 is denied. ____________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs