Citation Nr: 1321599 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 07-23 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from February 1954 to February 1962. He died in July 2006. The appellant is the Veteran's widow. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By that rating action, the RO, in part, denied the Veteran's claim for service connection for the cause of the Veteran's death. The Veteran appealed this rating action to the Board. In August 2009 and October 2011, the Board remanded the claim on appeal to the RO for additional substantive development. The requested development has been completed and the matter has returned to the Board for appellate consideration. The issues of whether new and material evidence has been received to reopen a claim of entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318 and whether an October 10, 1995 rating decision, wherein the RO failed to address the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), was the product of clear and unmistakable error (CUE) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). (See appellant's handwritten letter to VA, received by the RO in January 2011 and appellant's representative's July 2011 written argument to the Board, page (pg.) 2)). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran died in July 2006 at home. His death certificate indicates death certificate indicates that the immediate cause of death was brain cancer. No other significant conditions contributing to death but not resulting in the underlying cause were listed. 2. At the time of the Veteran's death, service connection was in effect for the following disabilities: (i) residuals of surgeries, Muscle Group XX (evaluated as 40 percent disabling); (ii) post-thoractomy intercostal nerve neuralgia (evaluated as 30 percent disabling); (iii) left pneumothorax and pleurectomy (evaluated as 10 percent disabling); (iv) residuals pleurectomy (evaluated as 10 percent disabling); (iii) Removal of the left 6th rib (evaluated as 10 percent disabling); and, (iv) residuals of a fracture of the right fifth toe (evaluated as noncompensably disabling). The Veteran's combined service-connected rating was 70 percent. A TDIU rating was in effect from May 3, 1999. 3. The competent and credible evidence fails to demonstrate that the brain cancer listed on the Veteran's death certificate was incurred in or related to his military service, or that a service-connected disability caused or contributed to his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1112, 1110, 1131, 1137, 1310, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all of the evidence in the Veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). 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 Veteran 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 Veteran). I. Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. In November 2006 and February 2010 pre and post adjudication letters, respectively, VA notified the appellant of the information and evidence needed to substantiate and complete her claim, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Mayfield, supra. The February 2010 letter also informed her of how to establish an effective date as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for service connection for the cause of a veteran's death, section 5103(a) notice must be tailored to the claim. The notice should include (1) a statement of the disabilities, 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 claim for service connection for the cause of a veteran's death based on a previously service-connected disability; and (3) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of a veteran's death based on a disability not yet service-connected. Unlike a claim to reopen, an original claim for service connection for the cause of a veteran's death imposes upon VA no obligation to inform a claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The February 2010 letter met the Hupp requirements with respect to the appellant's claim for service connection for the cause of the Veteran's death as it informed her of the disabilities that the Veteran was service-connected for during his lifetime. (Parenthetically, the Board observes that the RO did not include in its February 2010 letter the Veteran's residuals of a fracture of the right fifth toe. However, as the appellant has not contended that this service-connected disability caused or contributed to the Veteran's death, she was not prejudiced by the RO's omission). In addition, since providing the additional Hupp notice, the RO readjudicated the appellant's claim in a July 2012 Supplemental Statement of the Case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that, as a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or lack of notice prior to an initial adjudication). Mayfield, supra. With respect to VA's duty to assist the appellant with respect to her cause of death claim, VA is only required to make reasonable efforts to obtain relevant records that the appellant has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1) . All efforts have been made to obtain relevant, identified and available evidence related to her claim. 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 the Veteran is deceased, a medical examination is not obtainable. In July 2010, a VA examiner (a Doctor of Osteopathy (D. O.)) provided an opinion as to the etiology of the Veteran's death. The VA examiner provided a supplemental opinion in November 2011. Copies of the July 2010 and November 2011 opinion and supplemental opinion, respectively, have been associated with the claims files. The November 2011 opinion was provided after a review of the claims files and was supported by medical rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that no further assistance is warranted. VA may proceed with the consideration the appellant's claim decided in the analysis below. II. Laws and Regulations Service Connection-general criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 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). Where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a malignant tumor becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is identified in service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as a malignant tumor. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Service connection-cause of death criteria To establish service connection for the cause of a Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but, rather, a causal connection must be shown. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). 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. 38 C.F.R. § 3.312(c)(3). 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. Id. 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. 38 C.F.R. § 3.312(c)(4). In such a 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 of itself of a progressive or debilitating nature. Id. III. Merits Analysis The appellant seeks service connection for the cause of the Veteran's death. She contends that chronic pain stemming from the Veteran's service-connected disabilities (other than his service-connected residuals of a fracture of the right fifth toe) weakened his constitution, which, in turn, led to his fatal brain cancer. (See VA Form 21-4138, Statement in Support of Claim, dated and signed by the appellant in March 2010). The Veteran's death certificate indicates that the immediate cause of death was brain cancer. No other disabilities were noted as "other significant conditions contributing to death but not resulting in the underlying cause." At the time of the Veteran's death, service connection was in effect for the following disabilities: (i) residuals of surgeries, Muscle Group XX (evaluated as 40 percent disabling); (ii) post-thoractomy intercostal nerve neuralgia (evaluated as 30 percent disabling); (iii) left pneumothorax and pleurectomy (evaluated as 10 percent disabling);(iv) residuals pleurectomy (evaluated as 10 percent disabling); (iii) Removal of the left 6th rib (evaluated as 10 percent disabling); and, (iv) residuals of a fracture of the right fifth toe (evaluated as noncompensably disabling). The Veteran's combined service-connected rating was 70 percent. A TDIU rating was in effect from May 3, 1999. As an initial matter, the Board finds that service connection for the listed cause of death, brain cancer, is not warranted. The Veteran's service treatment records are negative for evidence that the Veteran was treated for a brain disability, to include brain cancer, nor did he have any related complaints during his military service. The Board also points out aside from the Veteran's lungs and chest, all of his systems were evaluated as normal as shown on service separation examination reports, dated in September 1956 and February 1962. Furthermore, the medical evidence of record indicates that the Veteran's brain cancer was first manifested in May 2006, which is over five (5) decades years after he was discharged from military service in 1962. (See May 2006 brain biopsy report and magnetic imaging scan (MRI) of the brain, reflecting that the Veteran had a frontal lobe-gliobastoma multiforme and large left solid mass, respectively). Thus, service connection for brain cancer on a direct or presumptive basis is not warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309. Thus, the remaining question is whether the Veteran's service-connected disabilities caused, contributed to, or hastened his death. For the following reasons, the Board finds that it did not. There are two VA opinions that address the relationship between the Veteran's fatal brain cancer and his service-connected disabilities. In July 2010, a VA examiner provided an opinion as to the etiology of the Veteran's fatal brain cancer. After a review of the claims files, to include the above-cited May 2006 biopsy of the frontal lobe of the Veteran's brain, the VA examiner opined, "The malignant gliomas are rapidly progressive brain tumors that are divided into anaplastic gliomas and glioblastoma (GBM) based upon their histopathologic features. Unfortunately, the Veteran's tumor was huge infiltrating the left frontal and parietal lobes as well as the lateral ventricle of the left cerebral hemisphere. This was not reasonable resectable or survivable in this age group. The veterans SC conditions were not of a terminal nature nor would they be expected to become terminal. These conditions did not rise to a level that would impact or worsen his terminal brain cancer in a material way." (See July 2010 VA medical opinion). In its October 2011 remand, the Board found the July 2010 VA medical opinion to be inadequate for two reasons: (i)the examiner failed to furnish an opinion as to whether it was at least as likely as not that the Veteran's death due to brain cancer was caused or hastened by an service-connected disability, as specifically requested by the Board in its August 2009 remand directives; and, (ii) the examiner failed to address the matter of the extent of additional brain tumor disability, if any, resulting from aggravation of the Veteran's nonservice-connected brain tumor and the hastening of his death by any service-connected disability. (See October 2011 Board remand, pg. 3). Thus, in October 2011, the Board requested a supplemental opinion to address these unresolved matters. The VA examiner provided a supplemental opinion in November 2011. (See November 2011 VA opinion). The November 2011 opinion VA examination report explained that a frontal lobe biopsy of the Veteran's brain and magnetic imaging scan of the brain, each performed in May 2006, showed that he had developed a frontal lobe-glioblastoma multiforme and large left solid mass. The examiner opined: "It is not at least as likely as not that the brain tumor that caused the Veterans death was caused or aggravated by any of his SC disabilities, namely, muscle group XX surgical residuals, post-thoractomy intercostal nerve neuralgia, left pneumothorax and pleurectomy residuals, left 6th rib removal and right 5th toe fracture. The veterans SC conditions were not of a terminal nature nor would they be expected to become terminal. These conditions did not rise to a level that would impact his survival or worsen his terminal brain cancer in a material way. Fortunately, as a result of the Veterans remote chest/back/lung condition and surgery, he did not develop any chronic cardiopulmonary conditions(s) that would cause or hasten his death, although he had a chronic pain syndrome which did not compromise his longevity." The November 2011 VA examiner further opined that malignant gliomas are rapidly progressive brain tumors that are divided into anaplastic gliomas and glioblastoma (GBM) based upon their histopathologic features. She indicated that the Veteran's tumor was huge and had infiltrated the left frontal and parietal lobes, as well as the lateral ventricle of the left cerebral hemisphere, which was not reasonably resectable or survivable for someone of his age group (i.e., the Veteran was 69 years old when he died in August 2006). Overall, the VA examiner concluded that none of the Veteran's service-connected conditions were medically capable of causing the brain tumor to cause or hasten his death. (See November 2011 VA opinion). This opinion is against the claim and is uncontroverted. The Board finds that the November 2011 VA opinion is of high probative value because it addressed the entire service-connected disability picture. The opinion report indicated that the Veteran's claims files had been reviewed, and the opinion is accompanied by a sufficiently detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448 -(2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also finds that November 2011 VA medical opinion outweighs the appellant's lay assertions regarding the cause of the Veteran's death. The appellant's and friends' and family members' contentions as to the Veteran's cause of death is based upon their own beliefs and familiarity with the late Veteran's medical history. As for the appellant's opinion that the Veteran's service-connected disabilities (other than his residuals of a fracture of the right fifth toe) had caused a pain syndrome that increased his health risks and, ultimately, led to the development of his fatal brain cancer, the matter at hand, however, involves complex medical assessments that require medical expertise. The record does not show that the appellant has received the requisite formal medical training and accreditation in terminal cancers that is necessary to make medical diagnoses or present opinions regarding complex medical issues, such as here. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007). The November 2011 VA medical opinion report noted review the claims files, to include all of the appellant's statements and medical records, namely the Veteran's May 2006 brain biopsy and MRI reports. Finally, the reasoning for the November 2011 VA medical opinion is fully articulated and based upon sound reasoning. Nieves-Rodriguez, supra. This decision is not meant to detract from the Veteran's honorable service, or the years of pain and symptoms that may have resulted from his service-connected disabilities. However, the Board must make its decision based on the evidence and the law; it is without authority to grant benefits on an equitable basis. For these reasons, service connection for the cause of the Veteran's death is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs