Citation Nr: 1323570 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 09-32 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to August 1980. The Veteran died in June 2008, and the Veteran's spouse is the appellant in this case. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied the claim for service connection for cause of death. On her August 2009 substantive appeal, submitted via VA Form 9, the appellant indicated that she wanted a Board video conference hearing. The appellant was scheduled for a video conference hearing in March 2011 and notice of the hearing was sent to her address of record. However, the appellant did not appear for the scheduled hearing and she has not provided good cause as to why an additional hearing should be scheduled. Accordingly, the Board finds that all due process has been satisfied with respect to the appellant's right to a hearing. The issue on appeal was previously remanded by the Board in May 2011 in order to provide the appellant with proper notice, and for further evidentiary development of requesting terminal hospital records and to obtain a VA medical opinion. This was accomplished, and the claim was readjudicated in a January 2012 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with and it may proceed with a decision at this time. 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). Further, in the May 2011 remand, the Board also found that the RO's February 2009 determination with respect to the appellant's Dependency and Indemnity Compensation (DIC) claim also included a denial of entitlement to accrued benefits and non-service-connected death pension benefits. In her April 2009 Notice of Disagreement (NOD), the appellant stated that her disagreement as to the February 2009 notice letter specifically covered all of the determinations made by the RO unless specifically excluded. The appellant did not exclude any determination made in the RO's February 2009 determination and, thus, her statement was considered a NOD with respect to the issues of accrued benefits and non-service-connected death pension benefits. However, because the RO had not issued a statement of the case that addressed those issues, the Board remanded the matter in order for the RO to issue a statement of the case and to provide the appellant an opportunity to perfect an appeal as to those issues. See Manlicon v. West, 12 Vet. App. 238 (1999). Thereafter, in an August 2011 statement, the appellant specifically stated that she was not pursuing the claims for accrued benefits and non-service-connected death pension benefits. The Board finds that the appellant withdrew her NOD as to these claims; therefore, these issues are not in appellate status before the Board and need not be addressed further. FINDINGS OF FACT 1. The Veteran died in June 2008. The certificate of death identifies the immediate cause of death as cancer of the esophagus. 2. At the time of his death, the Veteran was service-connected for internal derangement of the right knee with degenerative changes, tinnitus, and left ear hearing loss. 3. Cancer of the esophagus was not chronic in service and did not manifest to a compensable degree within one year of service separation. 4. Symptoms relating to cancer of the esophagus were not continuous since service separation. 5. Cancer of the esophagus is not etiologically related to active service. 6. The service-connected right knee disability did not contribute substantially or materially to the Veteran's cause of 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. §§ 1110, 1131, 1310, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The notice should inform the claimant about the information and evidence not of record that is necessary to substantiate the claim. It should also inform the claimant about the information and evidence that VA will seek to provide, and the information and evidence the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Certain additional notice requirements attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Generally, section 5103(a) notice for a DIC case must include: (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 DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. In December 2008 and October 2011 letters, VA informed the appellant of the evidence necessary to substantiate her claim for DIC benefits, evidence VA would reasonably seek to obtain, and information and evidence for which the appellant was responsible. The October 2011 letter provided notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The October 2011 VCAA letter also included a statement of the conditions for which the Veteran was service-connected at the time of his death in accordance with Hupp. Thus, VA has satisfied its duty to notify the appellant. The case was last readjudicated in a January 2012 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that a notice defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim). In addition, all relevant, identified, and available evidence has been obtained. The Veteran's service treatment records, certificate of death, VA and private treatment records, the appellant's lay statements, and a VA medical opinion has been associated with the claims file. Pursuant to the Board's May 2011 remand, the RO was asked to obtain the appropriate release from the appellant and attempt to obtain the complete terminal hospital records pertaining to the Veteran from the Kootenai Medical Center. In October 2011, the RO sent a letter to the appellant notifying her to complete and return VA Form 21-4142 (Authorization and Consent to Release Information). Further, the appellant was notified that Kootenai Medical Center had been contacted regarding records prior to June 2008 (the date of the Veteran's death). To date, the appellant has not submitted a VA Form 21-4142 and there is otherwise no indication of relevant, outstanding records which would support the appellant's claim. Accordingly, the Board finds that VA has satisfied the duty to assist the appellant as it pertains to obtaining treatment records. Further, the Unites States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is necessary to substantiate the claim, and VA is excused from providing such assistance only when no reasonable possibility exists that such assistance would aid in substantiating the claim. Wood, 520 F.3d at 1348. Pursuant to the Board's May 2011 remand, a VA medical opinion was obtained to aid in determining whether the service-connected right knee disability contributed substantially or materially to the Veteran's cause of death, and to address all of the evidence of record. The Board finds that the January 2012 VA medical opinion is adequate for the purposes of adjudication as it includes adequate statements of reasons and bases based on an accurate factual background as established by the evidence of record. For these reasons, the Board finds that the duties to notify and assist the appellant in substantiating her claim have been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Law and Analysis 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, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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 finds that cancer of the esophagus is considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 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. 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). 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). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). It is noted that the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate. Principal Cause of Death At the outset, the Board acknowledges that the appellant has not stated that a service-connected disability was the principal cause of the Veteran's death. The appellant also does not contend that cancer of the esophagus was incurred in service. That notwithstanding, the Board will discuss all theories of entitlement (principal and contributory) raised by the evidence of record. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). As for the principal cause of death, the Veteran's certificate of death shows that he died in June 2008 with the immediate cause of death listed as cancer of the esophagus. No other significant conditions were listed as contributing to death. The approximate interval between the onset of cancer of the esophagus and death was noted to be two years. The evidence reflects that the Veteran was diagnosed with esophagus cancer in 2006, which metastasized to his right tibia and femur bones. See treatment records from Dr. S.I. dated May to June 2008. For these reasons, the Board finds that the Veteran's cause of death is shown to be cancer of the esophagus. At the time of his death, the Veteran was service-connected for internal derangement of the right knee with degenerative changes, tinnitus, and left ear hearing loss. Service treatment records do not reflect complaints, diagnoses, or treatment related to cancer of the esophagus. Post-service treatment records dated September 2006 to June 2008 from the Kootenai Cancer Center (Dr. D.D. and Dr. S.I) reveal that the Veteran was treated with radiation therapy to the right tibia for his metastatic carcinoma of the esophagus to the bone. The Board finds that the Veteran was diagnosed with cancer of the esophagus in 2006, 26 years after service separation. Upon review of the evidence of record, both lay and medical, the Board finds that the evidence does not establish, and the appellant does not otherwise contend, that cancer of the esophagus was incurred in or directly related to service, nor is there evidence of persistent symptoms of carcinoma of the esophagus until 2006, many years after the Veteran's separation from service. For these reasons, the Board finds that the Veteran's cause of death, diagnosed as cancer of the esophagus, was not chronic in service, did not manifest to a compensable degree within one year of service separation, symptoms were not continuous after service separation, and cancer of the esophagus is not otherwise related to service. Contributory Cause of Death The appellant contends that the Veteran's right knee disability contributed to the Veteran's death. Specifically, the appellant maintains that the pain in the Veteran's right knee, in addition to self-medicating with morphine, hastened his death. As noted above, the Veteran was service-connected for a right knee disability; therefore, the appellant may establish service connection for the Veteran's cause of death in this case by showing that the right knee disability contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. §§ 3.303(d), 3.312(c). In this regard, the Board finds that the most probative evidence in this case, pertaining to the Veteran's cause of death, is his certificate of death. The certificate of death clearly shows that the Veteran's cause of death was due to cancer of the esophagus. The approximate interval between onset and death was noted to be two years. Notably, Dr. S.I., the physician certifying the Veteran's cause of death, was the same physician who treated the Veteran at the Kootenai Cancer Center. That notwithstanding, in support of her claim, the appellant submitted a statement from Dr. S.I., dated December 2009, where he noted that there was a "possibility" that the extensive pain in the Veteran's right knee "could have" hastened his death. The Board finds that, while Dr. S.I.'s December 2009 statement purports to relate the Veteran's service-connected right knee disability to his death, his opinion is of no probative value because he did not provide a rationale in support of his opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, Dr. S.I.'s opinion is speculative and inconclusive and cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). Pursuant to the Board's May 2011 remand, the RO obtained a VA medical opinion to assist in determining whether the Veteran's service-connected right knee disability was a principal or contributory cause of the Veteran's death. In a January 2012 VA medical opinion, the VA staff physician noted that he reviewed the claims file prior to rendering his opinion. In his assessment, the VA physician stated that in a May 2008 VA treatment note, it was noted that the Veteran denied any active problems with his knees. Further, although Dr. S.I. stated that pain medication "possibly" hastened the Veteran's death, the VA physician opined that it did not contribute substantially to it. In this regard, the examiner noted that the Veteran's last few radiation treatments were delayed due to pneumonia. Pneumonia, according to the examiner, would likely be due to aspiration, which is a harbinger of life-threatening complications. The January 2012 VA physician further stated that the right tibial metastasis was in no way related to the service-connected right knee disability as there was no link between degenerative joint disease and metastatic cancer near any joint. According to the VA physician, merely being service-connected for one condition that causes discomfort in an area of the body does not mean that all pain in that area from all causes is service-connected. Further, the VA physician stated that the pain in the Veteran's right knee purely from the service-connected disability was nowhere near severe enough to require the pain medications he was taking in his last days. Specifically, the VA physician noted that in the 2007 VA examination, conducted pursuant to a claim for an increased rating for service-connected right knee disability administered less than a year prior to his death, and 35 years after his service-connected injury, the Veteran's right knee disability had only progressed to the point that he took Tylenol, used ice, icy-hot, and knee wraps. The Veteran missed no work and still drove. Given that scenario, less than a year before his death, the VA physician stated that it was "inconceivable" that the portion of the right knee discomfort that was service-connected would progress to the point that the Veteran would need to take the type and quantities of pain medication that would hasten his death. To the contrary, the examiner opined that the extra pain in his right knee was caused by the metastasis of the esophageal cancer, which had nothing to do with his service-connected disability. According to the United States Court of Appeals for Veterans Claims (CAVC), "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. The Board finds the January 2012 VA medical opinion to be the most probative evidence of record as to whether the service-connected right knee disability contributed to the Veteran's death. The VA physician reviewed the claims file, discussed the Veteran's medical history in detail, and provided a detailed rationale for the opinions stated. For these reasons, the Board finds that the January 2012 VA opinion provided competent, credible, and probative evidence showing that the service-connected right knee disability did not contribute materially or substantially to cause the Veteran's death. Insomuch as the appellant has attempted to establish, through her own lay statements, a link between the service-connected right knee disability and the Veteran's esophageal cancer, the Board finds that the appellant does not possess the medical training and expertise necessary to render a medical opinion as it relates to the etiology of the Veteran's cause of death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also 38 C.F.R. § 3.159(a)(2). Instead, the Board finds that the competent, credible, and probative evidence provided by the Veteran's certificate of death, VA and private treatment records, and the January 2012 VA medical opinion, demonstrate that the Veteran's cause of death was due to cancer of the esophagus which metastasized to his right tibia and femur bones, and the right knee disability did not contribute substantially or materially to cause death. The Board must therefore conclude that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death. For the reasons discussed above, the Board finds that the Veteran's cause of death was not incurred in service and the service-connected right knee disability was not shown by competent, credible, and probative evidence to have contributed substantially or materially to the Veteran's cause of death. Therefore, the Board concludes the preponderance of the evidence is against finding that the Veteran's cause of death is etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the appellant's claim. ORDER Service connection for the Veteran's cause of death is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs