Citation Nr: 1323664 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 11-32 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1960 to May 1984 and February 1991 to September 1991. He died in April 2009 and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from March and November 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The case was brought before the Board in December 2012, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal. This development included notifying the appellant on substantiating her claim, obtaining private and VA treatment records, verifying the Veteran's military service, obtaining service and personnel records from 1991-1998, and requesting a VA examiner provide an opinion regarding the Veteran's cause of death. The appellant was notified in December 2012 of the requirements to substantiate her claim. The AOJ obtained outstanding private and VA treatment records and verified that the Veteran had active duty service from June 1960 to May 1963, from June 1963 to May 1984, and from February 1991 to September 1991. The AOJ received all available records from the National Personnel Records Center (NPRC). Finally in May 2013 a VA examiner offered an opinion as to the cause of the Veteran's death. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in April 2009; the immediate cause of death listed on his death certificate is cardiorespiratory arrest due to, or as a consequence of throat cancer. Other significant conditions contributing to his death, but not resulting in the underlying cardiorespiratory arrest were hyperlipidemia and tachycardia. 2. At the time of the Veteran's death, service connection was in effect for tonsillar cancer, bone cancer of the spine, rib, and pelvis (associated with tonsillar cancer), left meniscectomy with chondromalacia and degenerative joint disease, rhinitis, inactive tuberculosis, and a scar status post left meniscectomy. 3. A March 2010 rating decision found that the previous grant of service connection for tonsillar cancer and bone cancer of the spine, rib, and pelvis was clear and unmistakable error. 4. The competent evidence fails to demonstrate that the cause of the Veteran's death as listed on his death certificate is related to his military service, or that any of his service-connected disabilities was the principle or a contributory cause of death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). 38 C.F.R. § 3.159. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the appellant received VCAA notification prior to the initial rating decision in September 2009. The RO's September 2009 letter advised the appellant what information and evidence was needed to substantiate her claim and what information and evidence must be submitted by her, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the Veteran. She was specifically told that it was her responsibility to support the claim with appropriate evidence. Finally the letter advised her what information and evidence would be obtained by VA, such as records like medical records, employment records, and records from other Federal agencies. The duty to notify the appellant was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. In July 2007, the Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Hupp v. Nicholson, 21 Vet. App. 342 (2007) which addresses VA's section 5103(a) notice obligations in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits. The Court concludes generally that 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 RO's September 2009 notice provided the appellant with information on what evidence and information was required to substantiate a DIC claim for service-connected disabilities. It is noted that the September 2009 notice did not list the Veteran's service-connected disabilities. However, the Board finds that there can be no prejudice to the appellant due to a lack of adequate 338 U.S.C.A. § 5103(a) notice where, as here, none has been specifically alleged. Id. Also, subsequent notice provided in a December 2012 letter notified the appellant of the disabilities the Veteran was service connected for during his lifetime. The letter does not indicate that service connection for tonsillar cancer was later severed, but the appellant has demonstrated through her statements that she was aware of this. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the present case, some of the Veteran's service and post-service treatment records have been obtained. The AOJ attempted to locate private treatment records from Dr. Gabana on multiple occasions, however the doctor did not respond. See e.g., March 2013 request. As the AOJ made multiple attempts to locate these records and no response has been received, the Board finds that further development is not necessary. The RO attempted to obtain copies of additional service treatment records and records from St. Francis hospital; but St. Francis hospital responded that there were no treatment records for the dates requested. The National Personnel Records Center indicated that all available records had been sent. The appellant was notified in February 2013 of the RO's requests for records but that ultimately it was her responsibility to ensure that VA received all non-federal records. The appellant was notified in an April 2013 letter regarding the RO's unsuccessful efforts to obtain copies of the Veteran's service records from 1991 to 1998. The RO also issued a formal finding of unavailability regarding VAMC records from the Central Alabama HCS other than in February 2009. The SSOC in June 2013 notified the appellant of all the records that had been obtained. The appellant has not identified any additional outstanding medical records to be obtained. The RO also provided the appellant with a VA medical opinion in May 2013 to address the etiology of the Veteran's tonsillar cancer and to discuss the likelihood that the Veteran's cause of death was related to his military service. The opinion obtained contains sufficient information to decide the issue on appeal and further medical opinion is not necessary. See Massey v. Brown, 7 Vet. App. 204 (1994). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. Id. For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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. 38 C.F.R. § 3.312(c)(1). On the Veteran's April 2009 death certificate the immediate cause of death listed is cardiorespiratory arrest due to, or as a consequence of throat cancer. Other significant conditions contributing to his death, but not resulting in the underlying cardiorespiratory arrest were hyperlipidemia and tachycardia. At the time of the Veteran's death, service connection was in effect for tonsillar cancer, bone cancer of the spine, rib, and pelvis (associated with tonsillar cancer), left meniscectomy with chondromalacia and degenerative joint disease, rhinitis, inactive tuberculosis, and a scar status post left meniscectomy. However, a March 2010 rating decision found that the previous grant of service connection for tonsillar cancer and bone cancer of the spine, rib, and pelvis was clear and unmistakable error. In a May 2009 application for DIC compensation, the appellant asserted that the Veteran's cause of death was due to service. In a May 2011 notice of disagreement, the appellant asserted that the Veteran's cause of death was due to his exposure to Agent Orange while serving in Vietnam. She stated that the RO should consider whether he was entitled to a presumption of service connection for ischemic heart disease or cancer of the larynx or trachea. A presumption exists for certain diseases associated with exposure to herbicide agents, which may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). The term 'herbicide agent' means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include AL amyloidosis, chloracne or other acne form disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma. Service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, it must be shown that the Veteran served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must have been diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). The Board does not dispute that the Veteran had service in the Republic of Vietnam from April 1966 to April 1967. However, there is no evidence that prior to his death he was diagnosed with one of the diseases listed in 38 C.F.R. § 3.309(e). The service treatment records are negative for any signs or treatment of tonsillar cancer. A pathology report notes numerous epithelial cells and protein material but atypical malignant cells were not identified. Prior to his death, the Veteran was diagnosed with tonsil cancer in late 2008 which metastasized to his bones. See e.g., November 2008 and February 2009 private treatment records. The Veteran underwent chemotherapy and radiation treatment. In May 2013 a VA examiner offered an opinion regarding the Veteran's cause of death. He reviewed the claims file and noted that the Veteran served in Vietnam. He also noted that the Veteran was diagnosed with tonsillar cancer and received chemotherapy and radiation therapy. Subsequently he developed bone metastasis. He opined it was less likely than not that the Veteran's service-connected left knee degenerative joint disease, scar, rhinitis, and inactive tuberculosis caused the Veteran's death. His rationale was that there was no evidence of active pulmonary tuberculosis and that these conditions were not expected to cause death. He then noted that the Veteran's tonsil cancer was diagnosed years after he left service and that he also had a long history of smoking. Although cancers of the lung, larynx, trachea, and bronchus are included in the current list of presumptive diseases, tonsillar cancer was not considered as a presumptive disease secondary to herbicide exposure. Accordingly, he opined it was less likely than not that the Veteran's tonsillar cancer and or tachycardia had its clinical onset during active service or was related to an in service disease, event, or injury, to include herbicide exposure. He also stated that the Veteran did not have ischemic heart disease. The Veteran's death certificate indicated the cause of death was cardiorespiratory arrest. Without evidence of cardiac disease and since he died from a chronic terminal condition of metastatic cancer, it meant that his heart and respirations stopped. This does not, per se, indicate evidence of ischemic heart disease. Although the appellant stated in her November 2011 VA Form 9 that she had been told by the Veteran's doctor that his heart condition contributed significantly in causing his death, there is no statement from the Veteran's physician to this effect. The Board also finds no other evidence that the Veteran was diagnosed with ischemic heart disease. Although lay persons such as the appellant are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the issue of determining the etiology of the cause of the Veteran's death, this falls outside the realm of common knowledge of a lay person. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Accordingly, the Board finds the appellant's statements lack credibility and are assigned little probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). In contrast, a VA examiner has reviewed service and post-service treatment records, considered reported history, and determined that the cause of the Veteran's death was not related to his service-connected disabilities. The Board assigns this opinion the most probative value and weight. Although the VA clinician relied on the fact that the Veteran's tonsillar cancer was not a presumptive disease related to Agent Orange exposure, this was not the only factor considered. The Board is aware that the U.S. Court of Appeals for Veterans Claims has held that "[t]o permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection." Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (emphasis added). However, in this case, the VA clinician also considered that the Veteran had a long-history of smoking and that the tonsillar cancer was not diagnosed until many years after service in determining that the Veteran's tonsillar cancer was not related to his military service. As factors other than the lack of a presumptive relationship were considered in the opinion provided it is not considered insufficient solely on the basis of the holding in Polovick. There are no other medical opinions of record addressing the etiology of the Veteran's tonsillar cancer or whether the Veteran's cause of death was related to service. Additionally, the record shows that while the Veteran's death certificate notes the cause of death was related to throat cancer that had metastasized to the bones, none of the medical evidence in the file shows cancer of the larynx or trachea. As noted, tonsillar cancer is not a disease that is presumptively related to Agent Orange exposure, and none of the medical evidence establishes a relationship to service on a direct basis. The Board sympathizes with the appellant and acknowledges her contentions that her late husband's death is related to service. However, there is no medical basis for such a finding, and as a layperson, the appellant is not competent to give a medical opinion on the diagnosis or etiology of a condition. Kahana, supra. The evidence of record does not show that any of the Veteran's service-connected disabilities either caused or contributed to the Veteran's death. As a preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs