Citation Nr: 1322201	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  07-25 984	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


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

Finn, S., Counsel



INTRODUCTION

The Veteran served on active duty in the military from September 1968 to August 1971, including a tour in Vietnam during the Vietnam War.  The appellant is his surviving spouse.  She appealed to the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In March 2011, rather than immediately deciding the claim, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development, which included providing the appellant additional notice under the Veterans Claims Assistance Act (VCAA), to comply with the holding in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), as well as giving her an opportunity to submit additional evidence and/or argument in response to this additional notice.  The remand also was to obtain all outstanding medical treatment records, especially any at the East Tennessee State University (E.T.S.U.) Cancer Center in Johnson City, Tennessee, and any dated since May 2005 at the VA Medical Center (VAMC) in Mountain Home, Tennessee.  A medical nexus opinion was then additionally to be obtained concerning the likelihood the Veteran's terminal hepatocellular carcinoma/liver cancer was the result of his military service, and especially his presumed exposure to Agent Orange in Vietnam.  The AMC accordingly provided the appellant-widow this required additional VCAA notice, including specifically in response to the holding in Hupp, and obtained the requested medical nexus opinion as well.  So, too, obtained were additional medical treatment records, particularly those dated since May 2005 from the VAMC in Mountain Home, Tennessee.  After giving the appellant-widow an opportunity to respond to this additional VCAA notice, and considering the medical nexus opinion and medical treatment records obtained on remand, the AMC issued a supplemental statement of the case (SSOC) in January 2012 continuing to deny her cause-of-death claim and since has returned the file to the Board for further appellate consideration of this claim.


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the Vietnam era and, therefore, it is presumed he was exposed to Agent Orange while there.

2.  His certificate of death shows he died in September 2005; the immediate cause of his death was hepatocellular carcinoma (liver cancer).

3.  He did not have any service-connected disabilities at the time of his death.

4.  Liver cancer is not included on the list of diseases presumptively associated with exposure to Agent Orange in Vietnam; in fact, to the contrary, it is expressly excluded from this list.

5.  His terminal liver cancer also has not been otherwise directly related or linked to his military service and, in particular, to his presumed exposure to Agent Orange in Vietnam.


CONCLUSION OF LAW

The Veteran's death was not due to disease or injury incurred in or aggravated by his military service or from disability due to disease or injury that may be presumed to have been incurred in service, including as a result of his exposure to Agent Orange.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Duties to Notify and Assist

Before addressing the merits of the appellant's claim, the Board is required to ensure that VA's duties to notify and assist her with her claim have been satisfied under the VCAA.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Upon receipt of a complete or substantially complete application, the VCAA requires that VA inform the claimant of any information and medical or lay evidence not then of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These 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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom, Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

In cases involving a claim for Dependency and Indemnity Compensation (DIC), so including for service connection for cause of death, this VCAA notice must include:  (1) a statement of the conditions, if any, for which the Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the DIC claim based on a previously 
service-connected condition; and (3) an explanation of the evidence and information required to substantiate the DIC claim based on a condition not yet service connected.  See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007).

This duty to notify has been satisfied in this particular case by means of letters from the RO/AMC to the appellant in December 2005, April 2011, and most recently in October 2011.  As required, these letters - especially in combination - informed her of the evidence required to substantiate her claim and apprised her of her and VA's respective responsibilities in obtaining this supporting evidence.  The April and October 2011 letters were sent on remand to specifically discuss the information required by Hupp.  In fact, the October 2011 letter was to correct wording used in the April 2011 letter.  See the intervening deferred rating decision issued in August 2011.  As well, the AMC since has readjudicated the claim in the January 2012 SSOC, so since providing that additional Hupp notice.  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).  See also Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (indicating this preserves the intended purpose of the notice and gives the appellant adequate opportunity to participate effectively in the adjudication of the claim).

VA also fulfilled its duty to assist the appellant by obtaining all relevant evidence in support of her claim that is obtainable.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA has obtained all medical and other records that she and her representative have identified as potentially pertinent.  In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) indicated that, while 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical nexus opinion for a DIC claim, it does require VA to assist a claimant in obtaining such whenever necessary to substantiate the DIC claim.  See also Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (holding that, in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an opinion when no reasonable possibility exists that such assistance would aid in substantiating the claim).

With this in mind and pursuant to this March 2011 remand directive, a VA physician reviewed the claims file in June 2011 and addressed the appellant's assertion that the Veteran's terminal cancer was related to events that had occurred during his military service, including especially his presumed exposure to Agent Orange in Vietnam.  This commenting VA examiner, however, discredited this notion and disassociated the Veteran's terminal liver cancer from any event during or coincident with his military service, including especially his presumed exposure to Agent Orange in Vietnam.  Moreover, as previously explained when remanding this claim, the Secretary of VA specifically has determined there is no positive association between Agent Orange exposure in Vietnam and the subsequent development of liver cancer, so this disease has been expressly excluded from this important list.  And the appellant has not offered or identified any additional medical or other evidence establishing this required correlation between her late husband-Veteran's death and his presumed exposure to Agent Orange in Vietnam, to otherwise establish this required causation on a 
direct-incurrence basis.  See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (indicating that even if, as here, a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established alternatively on a direct-incurrence basis by establishing the required causation).  See also Stefl v. Nicholson, 21 Vet. App. 120 (2007); and McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which in actuality involved exposure to radiation, are nonetheless equally applicable to claims based, instead, on exposure to Agent Orange).

Since the commenting VA physician that concluded unfavorably reviewed the Veteran's medical and other history and cited to the specific facts forming the basis of the opinion, this VA physician's opinion is most probative of this determinative issue of causation, especially absent any equally probative evidence to the contrary.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.").


Additionally, the prior March 2011 remand instructions were complied with, certainly substantially.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders).  But see, too, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  These instructions consisted of sending the appellant-widow Hupp-compliant notice, obtaining outstanding medical treatment records from the VAMC in Mountain Home, Tennessee, dated since May 2005, as well as from the E.T.S.U. Cancer Center in Johnson City, Tennesee, and obtaining the VA medical nexus opinion mentioned.  And all of this was done, to the extent permissible.

The appellant and her representative have not made the RO/AMC or the Board aware of any additional evidence still needing to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the notice or assistance she received with her claim is unduly prejudicial, meaning outcome determinative of her claim.  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).  Indeed, when responding in February 2012 to the most recent SSOC, 
the appellant-widow clarified that she had no other information or evidence to submit.  She therefore asked that the AMC go ahead and return her case to the Board for further appellate consideration as soon as possible.  In order to expedite the processing of her claim and immediate return of her claim to the Board, she waived the 30-day response time she had for submitting additional evidence and/or argument in response to that SSOC, again, owing to the fact that she did not have any additional evidence regarding her appeal.  She also indicated that, if she later submitted additional evidence, she was waiving her right to have her case remanded (sent back) to the Agency or Original Jurisdiction (AOJ), i.e., to the local RO, preferring instead to have the Board consider the additional evidence in the first instance.  38 U.S.C.A. §§ 20.800, 20.1304 (2012).

Accordingly, the Board concludes that VA has satisfied its duties to notify and assist the appellant with her claim.  Therefore, the Board may proceed with the adjudication of the underlying merits of her claim.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d).

II.  Legal Criteria

The law provides DIC for a spouse of a Veteran who dies from a service-connected disability.  See 38 U.S.C.A. § 1310.  A service-connected disability is one that was incurred in or aggravated by active military service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing this entitlement to service connection for a particular disability resulting in death requires:  (1) competent and credible evidence confirming the Veteran had the claimed disability; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible of a nexus or link between the disease or injury in service and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Malignant (i.e., cancerous) tumors will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

Also, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, i.e., Vietnam Era, shall be presumed to have been exposed during such service to an herbicide agent (like the dioxin in Agent Orange), unless there is affirmative evidence establishing he was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f).  The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception inapplicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii).  These diseases include chloracne or other acneform disease consistent with chloracne, Type II Diabetes Mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, 
Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma.  38 C.F.R. § 3.309(e) (2009 and Supp. 2012); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010).

The Secretary of VA, however, has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996).  The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following specific conditions:  cancer of the oral cavity (including lips and tongue, pharynx (including tonsils), or nasal cavity (including ears and sinuses); cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); pancreatic cancer; bone and joint cancer; melanoma; non-melanoma skin cancer (basal cell and squamous cell); nasopharyngeal cancer, breast cancer, cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); urinary bladder cancer; renal cancer; cancers of brain and nervous system (including eye); endocrine cancers (thyroid, thymus, and other endocrine; cancers at other and unspecified sites; neurobehavioral disorders (cognitive and neuropsychiatric); amyotrophic lateral sclerosis (ALS); chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal immune system disorders (immune suppression, allergy, and autoimmunity); circulatory disorders (including hypertension); endometriosis; effects on thyroid homeostasis; certain reproductive effects, and, any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21260 (May 7, 2009); Notice, 75 Fed.Reg. 32540 (June 8, 2010).

Thus, service connection may be presumed for residuals of Agent Orange exposure by satisfying two requirements.  First, it must be established the Veteran served in the Republic of Vietnam during the Vietnam War era.  See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  Second, the Veteran must have a diagnosis of one of the specific diseases listed in 38 C.F.R. § 3.309(e).  Brock v. Brown, 10 Vet. App. 155, 162 (1997).  However, as already alluded to, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude the appellant from establishing entitlement to service connection with proof of direct causation.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In fact, the Court has specifically held that the provisions set forth in Combee, which, instead, concerned exposure to radiation, are nonetheless applicable in cases, as here, involving exposure to Agent Orange.  McCartt v. West, 12 Vet. App. 164, 167 (1999).

The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death.  See 38 C.F.R. § 3.312(a).  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.  See 38 C.F.R. § 3.312(b).  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.  See 38 C.F.R. § 3.312(c).  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.  Id.

It is recognized there are primary causes of death that, 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).

III.  Analysis

The appellant-widow contends that the liver cancer that caused the Veteran's death was the result of his exposure to Agent Orange in Vietnam.

Although VA has conceded the Veteran served in Vietnam and, therefore, is entitled to the presumption that his tour there involved exposure to toxic herbicides (including, specifically, the dioxin in Agent Orange), he did not die from one of the cancers listed above typically associated with said exposure.  The Secretary of VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 68 Fed. Reg. 27630-27641 (2003).  And, as explained, hepatobiliary cancers in particular, including liver cancer, are among the cancers that have been specifically disassociated with exposure to Agent Orange in Vietnam and elsewhere.

Nevertheless, as also explained, this does not altogether preclude the appellant from establishing her entitlement to service connection based on the Veteran's presumed exposure to Agent Orange in Vietnam with sufficient proof of actual direct causation linking his terminal cancer to his military service.  See again Combee, McCartt, supra.

For this reason, and recognizing the holdings in DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), and Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the Board remanded this claim in March 2011 to have a VA compensation examiner provide medical comment on this determinative issue of causation.


According to the death certificate, the Veteran had died in September 2005 of hepatocellular carcinoma (liver cancer) of 9 months' duration, so originating in early 2005 or thereabouts.  Indeed, his VA treatment records show the first diagnosis of this eventually terminal hepatocellular carcinoma was in approximately January 2005, following a liver biopsy.  His military service had ended many years earlier, in August 1971.  He did not have any adjudicated service-connected disabilities at the time of his death.

The appellant is maintaining, however, that his terminal cancer was the result of his exposure to Agent Orange while serving in Vietnam during the Vietnam era.

The Veteran's military records verify that he served in the Republic of Vietnam during the Vietnam era, see 38 C.F.R. § 3.2(f), so it is presumed that he was exposed to Agent Orange while there.  His DD Form 214 confirms he had service in Vietnam, during the Vietnam War, although without any indication of combat, such as combat medals or awards.  Nevertheless, as already explained, liver cancer is not one of the diseases listed in 38 C.F.R. § 3.309(e) that is presumptively associated with exposure to Agent Orange in Vietnam.  In fact, to the contrary, liver cancer is expressly excluded from this important list.  Therefore, service connection for the cause of the Veteran's death is not warranted on a presumptive basis under § 3.309(e).

The appellant disputes this finding and has expressed her personal belief that the Veteran's ultimately terminal cancer was a result of Agent Orange exposure in Vietnam.  But the medical and other evidence in the file does not support her assertion.

The Veteran did not have liver cancer either during his military service from September 1968 to August 1971 or within one year of his discharge, so meaning by August 1972.  In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and during the intervening years since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to hold in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  And in this particular instance, not only were there no complaints or findings of cancer during the Veteran's service, or within one year of his discharge, but the appellant does not contend there were.  So this tends to go against any notion that his ultimately fatal liver cancer was either directly incurred in service, see 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a), or that it should be presumptively service connected under the alternative provisions of 38 U.S.C.A. §§ 1101, 1112, 1113 and 38 C.F.R. §§ 3.307, 3.309(a).

The absence of any relevant complaints or findings in service, however, or within one year of discharge, is but one of the factors - so not the sole factor - in determining whether the Veteran's death was the result of a service-connected disability, i.e., a disability incurred in or aggravated by his military service.  See Struck v. Brown, 9 Vet. App. 145 (1996) (indicating contemporaneous medical findings may be given more probative weight than evidence to the contrary offered many years later, long after the fact).  See, too, Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period after service without a relevant medical complaint can be considered as one factor, just not the only or sole factor, of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability); Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following service for which there was no clinical documentation of the claimed disorder).

Service connection is still possible in this circumstance, even for a condition initially diagnosed after discharge from service (and even, here, well beyond the one-year presumptive period following service), if the evidence as a whole, including that pertinent to service, establishes the condition was incurred in service.  38 C.F.R. § 3.303(d).


Ultimately, the Board must consider all of the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Here, there has not been the required association or linkage of the Veteran's ultimately fatal liver cancer with his military service - including his accepted exposure to Agent Orange in Vietnam.

His STRs are completely unremarkable for complaints, treatment, or diagnosis of hepatocellular carcinoma or any other liver disability.  Medical treatment reports from the VAMC in Mountain Home, Tennessee, show that he was diagnosed with hepatocellular carcinoma by biopsy in December 2004/January 2005.  But regardless of when exactly there was the initial diagnosis, none of the treatment records contain any medical opinion attributing the hepatocellular carcinoma to his military service that ended many years ago, in August 1971, including, again, especially to his presumed exposure to Agent Orange in Vietnam.

The June 2011 VA opinion obtained on remand reflects that the VA examiner thoroughly reviewed the claims file, including the remand, STRs, biopsy report, and other medical records.  This VA examiner concluded that it was unlikely the terminal hepatocellular carcinoma/liver cancer was the result of the Veteran's military service or exposure to Agent Orange.  The VA examiner's rationale was premised on the fact that the Veteran was exposed to Agent Orange, but that hepatocellular cancer was not on the causative list of cancers related to Agent Orange exposure.  Moreover, his physical did not mention cancer and was not diagnosed until 2005 (not within one year of service).  The primary cause of his death was hepatocellular cancer.  His cardiac disease was not the primary or a contributing factor to his death.

But, as importantly, the Veteran's terminal liver cancer also has not been otherwise directly related or linked to his military service and, in particular, to his presumed exposure to Agent Orange in Vietnam.  The appellant has not cited or identified the existence of any such evidence that might tend to substantiate her claim in these regards.  Supporting medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (e.g., a broken leg, separated shoulder, varicose veins, tinnitus (ringing in the ears), pes planus (flat feet), etc.), but other times not, such as in the case of a form of cancer; (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).  When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  So to ultimately have probative value, lay testimony not only has to be competent but also credible.  See Rucker v. Brown, 10 Vet. App. 67 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")).

The competency, credibility and resultant probative value of lay evidence is not determined in a vacuum or in isolation, rather in relation to the relevant medical and other evidence in the file.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  Moreover, the determination of whether medical versus lay evidence is needed to support a claim is entirely dependent on the type of disability at issue, so is made on a fact specific, case-by-case basis.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

The Court explained in Jandreau that forms of cancer, so including the type of cancer from which the Veteran died, and indeed any form of cancer for that matter, are not readily amenable to mere lay diagnosis or probative comment on their etiologies in terms of whether they are directly or presumptively associated with military service.  Because a diagnosis of cancer necessarily is predicated on the results of objective testing and evaluation, not mere lay opinion, the appellant's unsubstantiated lay testimony, alone, is insufficient to establish the required correlation between the Veteran's service and eventual death from this condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease or rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).  The Board did indeed solicit a medical opinion in this particular instance, hence, part of the reason for remanding this claim in March 2011, and the June 2011 medical opinion is entirely unfavorable to the claim.  Also, the widow-appellant unfortunately has not cited or identified any contrary medical nexus evidence tending to support her claim and refute this VA examiner's opinion.  The VA examiner's opinion therefore is uncontroverted.


For these reasons and bases, the Board finds that the preponderance of the evidence is against the appellant-widow's claim for service connection for the cause of the Veteran's death.  The Board is sympathetic to the loss of her husband but may not go beyond the factual evidence presented in this case to provide a favorable determination.  And as the preponderance of the evidence is against her claim, the doctrine of reasonable doubt is not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).  Accordingly, her appeal must be denied.


ORDER

The claim for service connection for the cause of the Veteran's death is denied.




____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs