Citation Nr: 1319826 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-26 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. The Veteran died in June 1997 and the Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware, which denied entitlement to service connection for the cause of the Veteran's death. In June 2010, the Appellant testified at a personal hearing, conducted via videoconferencing equipment, that was chaired by the undersigned Acting Veterans Law Judge (AVLJ). A transcript of that hearing has been associated with the Appellant's VA claims folder. A review of the Virtual VA paperless claims processing system does not reveal additional documents relevant to the Appellant's claim. The record indicates the Appellant filed an application for Dependency and Indemnity Compensation (DIC), Death Pension, and Accrued Benefits by a Surviving Spouse or Child in January 2006. This application potentially includes the issues of accrued benefits and DIC benefits under 38 U.S.C.A. § 1318, which were not adjudicated by the RO in the first instance. The Board does not have jurisdiction over these claims, and they must therefore be referred to the RO for appropriate 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 certificate of death reflects the Veteran died at the age of 48 in June 1997. The immediate cause of death was listed as end-stage AIDS, with severe malnutrition as a contributing cause. 2. At the time of his death, the Veteran was not service connected for any disabilities. 3. The Veteran's AIDS manifested many years after service, and was not etiologically related to his active duty service. 4. Fibrosis of the lungs and gastric antrum was not etiologically related to his active duty service, including as due to herbicidal exposure, and did not contribute to the Veteran's death. CONCLUSION OF LAW A disability incurred in or aggravated by active service did not cause or substantially and materially contribute to the Veteran's cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting any decision rendered. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claim. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Veterans Claim Assistance Act (VCAA) With respect to the Appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant, prior to the initial adjudication of the claim, 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. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court held that in the context of a dependency and indemnity (DIC) claim, notice under 38 U.S.C.A. § 5103(a) must include: (1) a statement of the conditions, if any, for which the Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and, (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The record reflects that in the Rating Decision denying the claim for cause of death, and the Statement of the Case (SOC), the RO informed the Appellant that service connection was not in effect for any disability at the time of the Veteran's death. In a January 2007 letter, the RO informed the Appellant of the evidence needed to substantiate her claim that the Veteran's cause of death was related to service, and informed her of the evidence that she should submit and that the RO would obtain on her behalf. Although the Appellant was not provided sufficient notice until after the initial adjudication of the claim and was not provided notice with respect to the effective-date element of the claim, the Board finds that there is no prejudice to her in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that, as the claim is being denied, there is no harm resulting from the failure to inform the Appellant of the evidence necessary to establish an effective date. As explained below, the Board has determined that entitlement to service connection for the cause of the Veteran's death is not warranted. Consequently, no effective date will be assigned, so the failure to provide notice with respect to that element of the claim is no more than harmless error. The Board concludes VA's duty to assist has been satisfied. All identified and available private treatment records have been associated with the claims file, to the extent they were available from the Veteran's treating hospitals. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In cause of death cases, a medical opinion is necessary if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service connected disability and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007). VA obtained medical opinions in connection with the Appellant's claim in June 2012. These opinions, based on review of the claims file and supported by explanatory rationale, are adequate to decide the claim herein. Based upon the above, the Board finds that VA has satisfied its duty to assist and that no additional assistance is required. 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). Additionally, the Board finds there has been substantial compliance with its previous remand directives. The Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation under Stegall v. West (11 Vet. App. 268 (1998)) when the examiner made the ultimate determination required by the Board's remand.) Specifically, the record indicates that the AMC attempted to obtain private treatment records and additional service treatment records, and readjudicated the claim in the March 2013 Supplemental SOC (SSOC). Thus, the AMC substantially complied with the mandates of the remands. See Stegall, supra (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders); 38 C.F.R. § 3.655 (2012). The Appellant has been afforded a hearing before an AVLJ in which she presented oral argument in support of her claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the party who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the AVLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Appellant's claim. The AVLJ asked specific questions of the Appellant, however, directed at identifying elements required to adjudicate the claim. Specifically, the questioning was directed at establishing the Appellant's theory of entitlement, to include the Veteran's medical history as it relates to the causes of his death, and whether all relevant records had been obtained and associated with the claims file. The Appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Service Connection for Cause of Death under 38 U.S.C.A. § 1310 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. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (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, or is otherwise related to, service. 38 C.F.R. § 3.303(d) (2012). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that the disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a) (2012). 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. 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). A service-connected disability is one which was incurred in or aggravated by active service; one which may be presumed to have been incurred or aggravated during such service; or, one which was proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities may be presumed to have been incurred or aggravated in service if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease initially 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). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes mellitus), Hodgkin's disease, Ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The Veteran's immediate cause of death was end-stage AIDS with severe malnutrition shown as a contributing cause. At the time of his death, the Veteran was not service-connected for any disabilities. The Appellant asserts that her husband's cause of death should be service connected, based on two different theories of entitlement. She alleges that the Veteran was exposed to herbicides while on active duty in the Republic of Vietnam, and that he contracted fibrosis of the lungs and gastric antrum from this exposure, which caused his malnutrition. Alternatively, she alleges that he became an intravenous (IV) drug user due to trauma experienced during active duty, which caused him to contract AIDS. Turning to the evidence, the record shows the Veteran was hospitalized due to a 40-pound weightless in May 1996. He complained of a difficulty in swallowing, and an esophagogastroduodenoscopy (EGD) was conducted to determine the cause. A portion of soft tissue from his gastric antrim was biopsied, and showed superficial pyloric-type mucosa with minimum acute and chronic inflammation and mucosal fibrosis. See St. Francis treatment dated in May 1996. In January 1997, he was diagnosed with interstitial lung disease. A biopsy of a portion of his lung demonstrated talc, consistent with talc pneumonitis, which was attributed to IV drug use. The Veteran was given a feeding tube to bring his nutrition level up, and he was given home oxygen. See St. Francis treatment dated in January 1997. The Board obtained medical opinions (VHA opinion) directly addressing the Appellant's theories of causation. Copies of these opinions were mailed to the Appellant in July 2012, and she filed a statement in response. An internal medicine physician commented on the Appellant's allegations regarding the connection between herbicides and fibrosis, and fibrosis and malnutrition. In regard to lung fibrosis, the VHA physician opined that it was not related to military service, including exposure to herbicides. Fibrosis of the lung is not a recognized condition associated with herbicides, and the Veteran did not have any condition or malignancy that is associated with herbicide exposure that would have caused the fibrosis. He did not have soft tissue sarcoma, non-Hodgkin's or Hodgkin's lymphoma, multiple myeloma, or cancers of the lung, bronchus, larynx, or trachea. In January 1997, he was diagnosed with interstitial lung disease, and a biopsy of part of his lung revealed talc, consistent with talc pneumonitis. This was found to be caused by his prior IV drug use. The surgical pathology report of the lung biopsy noted alveolar tissue showing interstitial fibrosis with extensive deposition of polarizable foreign material, but no evidence of granuloma formation. Thus, the fibrosis was due to talc pneumonitis, which was linked to IV drug use. Even if lung fibrosis had been due to military service, it was opined that it did not contribute to his severe malnutrition. The VHA physician noted that if lung fibrosis had been severe, the Veteran would have required home oxygen sooner than he did. The Veteran was not considered to need oxygen while at home until his final hospitalization. Malnutrition, on the other hand, preceded the need for home oxygen by many months, and was likely caused by other factors. The VHA physician was also asked to comment on whether fibrosis of the gastric antrum could be attributed to service or herbicide exposure, and whether it contributed to the Veteran's malnutrition or otherwise contributed to his death. She did not think it was related to service. As with lung fibrosis, gastric antrum fibrosis is not associated with herbicide exposure, and the Veteran had no other gastrointestinal condition or complication from malignancy associated with herbicides that could cause gastric antrum fibrosis. The May 1996 EGD report indicates there was minimal acute and chronic inflammation and mucosal fibrosis, which, the physician noted, are nonspecific findings that could be associated with numerous benign conditions. Based on the EGD report, which also showed normal peristalsis, the VHA physician opined that fibrosis of the gastric antrum did not cause his malnutrition. Instead, a more diffuse scarring process that resulted in constriction or narrowing of the lumen would be necessary to result in his difficulty in swallowing. Minimal mucosal fibrosis of the gastric antrum would not result in constriction of the lumen. See VHA internal medicine opinion. In regard to whether the Veteran's IV drug use, his only risk factor for contracting HIV/AIDS, was caused or aggravated by military service or a service-connected psychiatric disability, the VHA psychiatric opinion found that there was not enough evidence to form an opinion. The Veteran had no history of psychiatric treatment, neither in service or following discharge. The evidence of record does not mention any psychiatric history or symptoms that would indicate the presence of any emotional disorders or psychopathology. The records indicate the Veteran admitted to IV drug use, but they do not show when he started or how long he abused them. On an undated second page of a discharge summary, it was noted the Veteran's mental status had changed and that he was referred to psychiatry, but left before a consultation could take place. The record does not provide details regarding the change in mental status, however, it does show the Veteran's respiratory status worsened while hospitalized, and that he was wearing an oxygen mask. The VHA psychiatrist commented that it appeared that the change in mental status was a result of a hypoxia. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 921 (31st ed. 2007) ("hypoxia" means "reduction of oxygen supply to tissue..."). It was further noted that no information regarding a specific emotional trauma was provided. Thus, without more information, the VHA psychiatrist indicated that he would not be able to formulate an opinion on the basis of the available evidence. See VHA psychiatric opinion. The Board finds these VHA opinions to be probative to the central questions in this case, as the authors are trained professionals who reviewed and commented on the Veteran's medical records, and provided explanatory rationale for their rendered opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion). The Appellant has submitted many statements asserting that the Veteran had cancer of the lung or soft tissues associated with herbicide exposure, or that other conditions were related to such exposure. The record does not support this assertion, and the Appellant has not been shown to have the medical training or expertise to competently diagnose her husband with cancer, or to associate any condition with herbicide exposure. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). A blood test in May 1996 showed high LDH (lactate dehydrogenase), which suggests the possibility of a lymphoma diagnosis. The evidence does not indicate he was ever formally diagnosed with lymphoma, and even if he was, lymphoma has not been shown to be a contributing cause of his death. Further, his causes of death-end-state AIDS and severe malnutrition-are not associated with herbicide exposure. Consequently, the Appellant's statements are not probative. The preponderance of the probative evidence weighs against the Appellant's claim. None of the competent medical evidence suggests a relationship between the Veteran's cause of death and his military service. Under these circumstances, the benefit-of-the-doubt doctrine does not apply, and the Appellant's claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for cause of the Veteran's death is denied. ____________________________________________ N. RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs