Citation Nr: 1322186 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 11-02 884 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran, who died in April 1989, served on active duty in the Philippine Army from December 1941 to July 1942 and from February to November 1945. He was a prisoner of war from April 10, 1942 through July 28, 1945. The appellant is his surviving spouse. This matter came to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the RO. 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. In September 2008, the Board denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. 2. Evidence associated with the record since the Board's May 1996 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for the cause of the Veteran's death. 3. The preponderance of the competent evidence of record shows that the Veteran's fatal bony malignancy with metastasis was first manifested many years after service and is unrelated thereto. CONCLUSIONS OF LAW 1. The September 2008 Board decision, which denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death, is final. 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. §§ 20.1100 (2008). 2. New and material evidence has been submitted to reopen the appellant's claim of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The Veteran's death was not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112(b), 1113, 1320, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.309(c), 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the appeal, the Board must determine whether VA has met its statutory duty to assist the appellant in the development of the issue of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that VA has met that duty. A review of the record discloses that this is not the appellant's first claim entitlement to service connection for the cause of the Veteran's death. That claim was initially denied by the RO in September 1989. The appellant was notified of that decision, as well as her appellate rights. However, she did not file a notice of disagreement with which to initiate an appeal. The appellant filed an application to reopen her claim in February 2006. That application was denied by the RO in June 2006. The appellant disagreed with that decision and perfected an appeal to the Board. In September 2008, affirmed the RO's decision. The appellant was notified of that decision, as well as her appellate rights. However, she did not appeal the Board's decision. Therefore, that decision became final under the law and regulations then in effect. 38 U.S.C.A. §§ 7103, 7104; 38 C.F.R. §§ 20.1100. In November 2008, the appellant filed an application to reopen her claim of entitlement to service connection for the cause of the Veteran's death. After reviewing the record, the Board finds no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the appellant of the information and evidence necessary to substantiate and complete her claim, including the evidence to be provided by her and notice of the evidence VA would attempt to obtain. VA also informed the appellant of the bases for the prior denials and advised her of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Moreover, VA informed her of the evidence necessary to support the underlying service connection claim. With respect to claims of entitlement to service connection for the cause of the Veteran's death, VA is required to set forth certain additional requirements. Those requirements consisted of 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 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 (2007). While VA is not required to assess the weight, sufficiency, credibility, or probative value of any assertion made in the claimant's application for benefits, the notice letter should be "tailored" and must respond to the particulars of the application submitted. 38 U.S.C.A. § 5103(a). In this case, the notice sent to the appellant in April 2011 was not tailored specifically to her claim. However, that fact has not resulted in prejudice to the appellant in the development of the record, as she has demonstrated a familiarity with the criteria set forth in Hupp. She has presented evidence which is not only sufficient to reopen her claim, but it raises at least a reasonable possibility of substantiating the claim. For example, the appellant has demonstrated such familiarity in statements, received in January 2009, in which she contends that the Veteran's fatal bone cancer was the result post-traumatic osteoarthritis contracted as a result of his POW experiences. 38 C.F.R. § 3.309(c). See, e.g., Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated . . . that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence was required). Consequently, the Board finds that an deficiencies in the April 2011 development notice were cured by the appellant's actual knowledge of the evidence necessary to support her claim. Following the notice to the appellant, VA fulfilled its duty to assist her in obtaining identified and available evidence necessary to substantiate her claim. VA obtained or ensured the presence of the Veteran's and appellant's marriage certificate; available service treatment records; March 1959 certificates from the Veteran's attending physician's, C. R. K., Jr., M.D. and Dr. N. G. L.; statements, dated in April 1959 from a former fellow service member and from a neighbor; an August 1968 statement from the Veterans Memorial Hospital in Quezon City; the report of a March 1988 VA POW protocol examination; the report a March 1988 VA neuropsychiatric examination; the report of a November 1988 VA examination; a May 2006 statement from the Veterans Memorial Medical Center in Quezon City; statements, dated in November 2008 and September 2009 from P. C. B., M.D.; and the report of a June 2009 review of the Veteran's claims file and opinion from a VA physician. Finally, the Board notes that in February 2013, the appellant was scheduled to have a hearing at the RO before a Veterans Law Judge from the Board. The appellant did not report for that hearing and has provided no good reason for doing so. Therefore, the Board will proceed as if she no longer desires a hearing. In sum, the appellant has been afforded a meaningful opportunity to participate in the development of her appeal. She has not identified any outstanding evidence which could support her claim; and there is no evidence of any VA error in notifying or assisting the appellant that could result in prejudice to her or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Analysis The appellant contends that as a result of the Veteran's POW experiences during World War II, he contracted post-traumatic osteoarthritis. She further contends that such disorder led to the Veteran's development of his fatal metastatic bone cancer. Therefore, she maintains that service connection is warranted for the cause of his death. After reviewing the record, the Board finds that the appellant has submitted new and material evidence to support her application to reopen her claim of entitlement to service connection for the cause of the Veteran's death. To that extent, the appeal is granted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the underlying claim of entitlement to service connection for the cause of the Veteran's death is denied. Dependency and indemnity compensation may be awarded to a Veteran's surviving spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order 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 cause of death or a contributory cause of death. Therefore, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, there must be competent evidence of the fatal disability; competent evidence of a disease or injury in service; and competent evidence of a nexus between the in-service injury or disease and the fatal disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). When, as in this case, the Veteran is a former POW, diseases such as post-traumatic osteoarthritis shall be service connected, provided that it becomes manifest to a degree of disability of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307. The foregoing law and regulations notwithstanding, 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 service. 38 C.F.R. § 3.303(d). The Board acknowledges the appellant is competent to give testimony about what the Veteran experienced immediately after his release from service. For example, she is competent to report when he began to experience bone and joint pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Federal Circuit Court discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau, supra. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). As noted above, this is not the appellant's first claim of entitlement to service connection for the cause of the Veteran's death. In September 2008, when the Board denied that claim, the evidence on file consisted of a copy of the Veteran's death record, the Veteran's and appellant's marriage certificate; available service treatment records; March 1959 certificates from the Veteran's attending physician's, C. R. K., Jr., M.D. and Dr. N. G. L.; statements, dated in April 1959 from a former fellow service member and from a neighbor; an August 1968 statement from the Veterans Memorial Hospital in Quezon City; the report of a March 1988 VA POW protocol examination; the report a March 1988 VA neuropsychiatric examination; the report of a November 1988 VA examination; and a May 2006 statement from the Veterans Memorial Medical Center in Quezon City. The evidence showed that the Veteran died in April 1989, as a result of a bone malignancy with metastasis. However, at the time of the Veteran's death, service connection was not in effect for any disability, and the available service treatment records were negative for any complaints or clinical findings of bone malignancy with metastasis. Bone malignancy with metastasis was not identified until 1988 during the VA examinations. X-rays revealed osteolytic and osteoblastic changes of the lumbar spine, pelvis, and femurs, and the presence of an underlying metastatic process was considered. Despite the X-ray evidence, there were no findings of a relationship to service. The only suggestion of a nexus to service came from the appellant in a January 2006 letter, in which she stated that when he was a POW, the Veteran had developed post-traumatic osteoarthritis which had led to his bone malignancy with metastasis. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the etiology of bone malignancy 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). Moreover, there is no evidence on file that the appellant was reporting a contemporaneous medical diagnosis, or that she was describing a symptom which was subsequently diagnosed by a medical professional. Thus, her contentions could not be considered competent and sufficient to establish a diagnosis of the Veteran's condition. Jandreau. Absent any competent evidence of bone malignancy with metastasis in service or any competent evidence of a nexus between that disorder and service, the Veteran did not meet the criteria for service connection. Accordingly, service connection was denied; and as noted above, that decision became final. Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. The exception to this rule is 38 U.S.C.A. § 5108 which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim. When an appellant seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the appellant has, in fact, presented new and material evidence under 38 C.F.R. § 3.156. Evidence offered by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining its materiality. Justus v. Principi 3 Vet. App. 510, 512 (1992). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. If new and material evidence is presented, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist the appellant in the development of his claim has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999). Evidence added to the record since the Board's September 2008 decision includes statements, dated in November 2008 and September 2009, from P. C. B., M.D. He reported that since the early 1970's, he had been treating the Veteran for multiple joint pain which he surmised was the result of the rigors of combat and temperature changes during World War II. He suggested that the later developing bone malignancy and arthritis contributed to the Veteran's demise. Such evidence is new in the sense that it has not previously been before the VA. It is also material in that it tends to fill the deficits which existed at the time of the prior denial. That is, it suggests a medical nexus between the Veteran's bony malignancy and service. It is neither cumulative nor redundant of the evidence of record in September 2008 and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim of entitlement to service connection for the fatal bone malignancy with metastasis. Therefore, it is sufficient to reopen the claim; and to that extent, the appeal is granted. Although sufficient to reopen the claim, the report from P. B. C., M.D., is not dispositive. Indeed, the probative weight of Dr. C.'s opinion is reduced, due to the fact that he failed to explain the basis for his opinion. Sklar. Furthermore, it is based on Dr. C's surmisal that the Veteran's osteoarthritis contributed to his death. As noted above, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert. Nevertheless, Dr. C's opinion combined with the appellant's contentions were sufficient for a VA physician to review the Veteran's claims file. In June 2009, following a review of the Veteran's claims file, a VA physician opined that it was less likely than not that the Veteran's osteoarthritis had contributed to his demise. The VA physician noted that there was no evidence of arthritis during the Veteran's 1988 examinations, including his POW protocol examination. Moreover, the VA examiner could find no evidence that the Veteran had even had arthritis other than in the statements from Dr. C. Finally, the VA physician noted that there was no radiographic evidence confirming the presence of the Veteran's arthritis. Therefore, the VA physician concluded that even if osteoarthritis had been present, it was most likely not severe enough to contribute to the Veteran's death. Unlike Dr. C., the VA physician based his opinion of a full review of the Veteran's claims file. In addition, he provided a multi-point medical rationale for his opinion. When considered in conjunction with the fact that Dr. C.'s opinion was based on conjecture, the Board finds that the opinion of the VA physician outweighs that of Dr. C., as well as the appellant's lay opinion. Inasmuch as the preponderance of the evidence is against a nexus between any event during the Veteran's service and his fatal bony malignancy with metastasis, the Veteran does not meet the criteria for service connection for that disorder. Accordingly, he does not meet the criteria for service connection for the cause of his death. Therefore, the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the appellant's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER New and material evidence having been presented, the application is granted to reopen the appellants claim of entitlement to service connection for the cause of the Veteran's death. Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs