Citation Nr: 1319745 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-43 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), for accrued benefit purposes. 2. Entitlement to service connection for melanoma for accrued benefit purposes. 3. Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran served on active duty from July 1969 to July 1971, including combat service in the Republic of Vietnam. He died in October 2008. The appellant is his widow. These issues come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating action of the Department of Veterans Affairs Regional Office (RO) in Nashville, Tennessee, which denied claims for service connection for the cause of the Veteran's death and service connection for PTSD and melanoma for accrued benefits purposes. On her November 2009 substantive appeal for the issues of accrued benefits, the appellant requested a hearing. She withdrew the hearing request in June 2011. The appellant characterized the claimed psychiatric disorder as PTSD. As VA is required to consider all psychiatric diagnosis raised by the record, the Board has recharacterized as a claim for an acquired psychiatric disorder, to include PTSD, as set forth on the title page. Clemons v. Shinseki, 23 Vet. App. 1 (2009). For the issue of service connection for cause of death, the appellant did not file a formal substantive appeal (VA Form 9) in response to the last adjudication by the RO in the December 2010 supplemental statement of the case (SSOC). However, she timely submitted pertinent medical evidence, Dr. C.J.'s January 2011 medical opinion, following the SSOC. The medical opinion has not been considered by the RO. Another SSOC is needed to consider it. 38 C.F.R. § 19.31(b)(1). The issue of service connection for cause of death is being addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the time of the Veteran's death, claims for service connection for PTSD and melanoma were pending, and the appellant filed accrued benefits claims within one year of the Veteran's death. 2. Melanoma was not clinically manifested in service; and it is not otherwise related to active duty, to include Agent Orange exposure, based upon the evidence of record at the Veteran's death. 3. The Veteran was not demonstrated to have any psychiatric disorder during his lifetime. CONCLUSIONS OF LAW 1. The criteria for service connection for melanoma, to include as due to exposure to herbicides, for the purpose of accrued benefits have not been met. 38 U.S.C.A. §§ 1101, 1110, 1116, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.1000 (2012). 2. The criteria for service connection for an acquired psychiatric disorder for the purpose of accrued benefits have not been met. 38 U.S.C.A. §§ 1101, 1110, 1116, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). Proper notice from VA must inform the claimant of any information and evidence not of 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. See 38 C.F.R. § 3.159(b) (1) and 73 Fed. Reg. 23,353 (Apr. 30, 2008). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In November 2008, the RO provided notice of the criteria for substantiating a claim for entitlement to accrued benefits and discussed the appellant's and VA's respective responsibility for obtaining the evidence. Prior to the Veteran's death, the RO received the Veteran's service treatment records, VA treatment records and private treatment records. The record does not suggest that any additional relevant, identified, and available evidence was of record at the time of the Veteran's death. A medical opinion is not of record. However, the claim for accrued benefits must be determined by the evidence of record at the time of the Veteran's death and a VA medical opinion is not among the limited exceptions to this rule. 38 C.F.R. § 3.1000(a), (d)(4). Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Analysis In order for a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the Veteran had a claim pending at the time of death, (iii) the Veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran's death. 38 U.S.C.A. § 5121, 5101(a); 38 C.F.R. § 3.1000; see Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c) (2012). Accrued benefits include those the Veteran was entitled to at the time of death under an existing rating or based on evidence in the claims folder at the date of death. See 38 U.S.C.A. § 5121(a); Ralston v. West, 13 Vet. App. 108, 113 (1999); 38 C.F.R. § 3.1000(a). Generally, only evidence contained in the claims file at the time of the Veteran's death will be considered when reviewing a claim for accrued benefits. This includes service department and VA medical records, which are considered to be constructively in the claims folder at the date of death, even though they may not physically be in the file until after that date. 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993); see also VAOPGCPREC 6-93 (August 9, 1993) and 12-94 (May 2, 1994) and Conary v. Derwinski, 3 Vet. App. 109 (1992) regarding certain financial information. Thus, the appellant could not furnish, and VA could not develop, additional evidence that might better substantiate the claim of entitlement to accrued benefits. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. For chronic disabilities listed under 38 C.F.R. § 3.309(a), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the claimed melanoma is not considered a chronic disability within the purview of 38 C.F.R. § 3.309(a) and there is no evidence showing psychosis was manifested within a year of separation. The alternative method for establishing service connection through continuity of symptomatology is not applicable. Establishing service connection for PTSD requires (1) medical evidence diagnosing PTSD in conformance with the DSM-IV criteria; (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). If PTSD was diagnosed by a medical professional, VA must assume that the diagnosis meets the DSM-IV criteria relating to adequacy of the symptomatology and sufficiency of the stressor. See Cohen, 10 Vet. App. at 153. If a Veteran's claimed stressor relates to an event in which he engaged in combat with the enemy, his lay testimony, alone, is sufficient to verify the claimed in-service stressor. VAOPGCPREC 12-99, p. 4 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). Here, the Veteran is shown to have served in combat. His lay reports of any stressor consistent with the circumstances of his service is sufficient to show an in-service stressor. Service connection may also be granted for a disease first diagnosed after discharge 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). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition such as a fall leading to a broken leg, a lay person is generally not competent to provide evidence as to more complex medical questions, such as the etiology of cancer. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent (Agent Orange), unless there is affirmative evidence to establish that he or she was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to Agent Orange during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. See 38 C.F.R. § 3.309(e). Here, the Veteran had combat service in Vietnam and is presumed to have been exposed to herbicides during service. However, melanoma or an acquired psychiatric disorder are not among the diseases that are presumptively related to herbicide. Regardless of whether a claimed disability is recognized under 38 U.S.C.A. § 1116, pertaining to herbicide agent exposure presumptive diseases, a claimant is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). (i) Acquired psychiatric disorder In December 2008, the RO denied service connection for PTSD based upon absence of a current diagnosis. The Veteran did not receive mental health treatment during his lifetime. All medical records, including service, VA, and private treatment records, are negative for any mental health treatment. Notably, VA treatment records from July 2003 reflect that the Veteran had a negative depression screen and from February 2008 indicate a negative PTSD screen. The Veteran was scheduled for a VA psychiatric examination in September 2008, but he was unable to attend. The VA examiner scheduled for the examination also noted that the Veteran did not have any record of mental health treatment. A current disability must be present at some point during the claim period for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007); 38 C.F.R. § 3.303. In this case, there is no competent evidence showing a psychiatric diagnosis. Although some oncology treatment records suggest mental problems due to disease progression to the brain, there are no lay reports of any psychiatric symptoms that may be related to service. (See July 2008 private medical records; February 2008 VA treatment records). The preponderance of the evidence clearly weighs against finding a current psychiatric disability. The benefit of the doubt doctrine is not for application, and the claim for service connection for an acquired psychiatric disorder for accrued benefits purposes must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); 38 U.S.C.A. § 5107(b). (ii) Melanoma During service, the Veteran had gunshot wounds to his chest and legs; however, he was not shown to have any dermatological disorder. In his May 1971 Report of Medical History for separation, he denied having or ever having skin disease. Contemporaneous clinical examination was also negative for any dermatological disease. The National Academy of Sciences (NAS) has concluded that the evidence is inadequate or insufficient to determine whether there was an association between herbicides and melanoma. See 75 Fed. Reg. 81,333 -4 (Dec. 27, 2010). The NAS reached the same conclusion in its Agent Orange Update 2010. See 77 Fed. Reg. 47927 (Aug. 10, 2012). The NAS findings do not show that it is at least as likely as not that there is a link between melanoma exposure and service. Indeed, VA has interpreted the NAS findings as failing to provide such evidence. Id. Although melanoma is not on the presumptive disability list for herbicide exposure, there is still the possibility that service connection could be warranted on a direct basis. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). The Veteran initially sought dermatology treatment in November 2006. He complained about a dark, black mole on his cheek. He stated that it had noticeably grown and occasionally bled. He denied any history of skin cancer. Upon evaluation, the examiner commented that the lesion was suspicious for melanoma. A subsequent biopsy confirmed it. The Veteran underwent surgery to remove the lesions and radiation therapy, which was completed in August 2007. By February 2008, there was clinical evidence of recurrence. The Veteran then underwent a whole body PET scan, and it confirmed metastatic disease. The treating clinician gave a poor prognosis advising that the disease is terminal and any treatment should be for palliative purposes only. In July 2008, the Veteran had an oncology consultation at the Vanderbilt-Ingram Cancer Center. They confirmed that the Veteran had disease progression to the brain, left axilla, and bone. They recommended continued radiation therapy. The Veteran last visited the VA oncology clinic in July 2008. The clinician noted that the Veteran initially noticed a suspicious lesion in approximately May 2006 which was later confirmed to be melanoma the following November. Since the formal diagnosis, radiation and surgical intervention had been unsuccessful in preventing metastasis. Due to limited treatment options, oncology treatment was stopped and a palliative care request was initiated. The Veteran expired in October 2008. The immediate cause was listed as malignant melanoma. No underlying causes were listed. The record shows that the Veteran did not have any dermatological disease in service. He developed melanoma approximately 35 years following service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). The competent evidence of record at the time of the Veteran's death does not in any way suggest that it is related to service, to include presumed herbicide exposure. There is nothing to suggest a link to service other than the Veteran's and the appellant's lay assertions which are not competent evidence regarding a medical question such as the etiology of a specific kind of cancer. Although there is a letter from Dr. Johnson dated in January 2011 in the file that suggests the possibility of a link between herbicides and melanoma, the letter was not of record at the time of the Veteran's death and cannot be considered in conjunction with an accrued benefits claim. Accordingly, the Board finds that the preponderance of the evidence weighs against finding a nexus to service, including presumed herbicide exposure. Id. The benefit of the doubt doctrine is not for application, and the claim for service connection for melanoma for accrued benefits purposes must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for melanoma for accrued benefits purposes is denied. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, for accrued benefits purposes is denied. REMAND As noted above, the issue of service connection for cause of death has not been certified to the Board. (See May 2011 VA Form 8). However, the appellant timely submitted pertinent medical evidence within 60 days of the December 2010 supplemental statement of the case (SSOC). The RO did not readjudicate the claim with consideration of the newly submitted evidence. The RO/AMC must issue another SSOC that reflects consideration of this evidence. 38 C.F.R. § 19.31; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Any necessary development and notification action to include furnishing a VA medical opinion and sending corrective notice in light of Hupp v. Nicholson, 21 Vet. App 324, 352-353 (2007) must be conducted. The issue should not be returned to the Board unless a timely substantive appeal is perfected. Accordingly, the case is REMANDED for the following action: 1. Send a notice to the appellant in light of Hupp v. Nicholson, 21 Vet. App 324, 352-353 (2007). 2. Obtain a medical opinion to address the question of whether it is at least as likely as not (50 percent probability or more) that the Veteran's death was related to service in that a disability of service origin caused or materially contributed to his death. A copy of the claims file must be provided to the reviewer and the reviewer should assume that the Veteran was exposed to herbicides in service. A complete rationale must be provided for any opinion offered. 3. Issue a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. If and only if the appellant files a timely substantive appeal, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs