Citation Nr: 1324049 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 08-13 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and her son ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to August 1945. He died in November 2006. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim for service connection for the cause of the Veteran's death. In March 2010, the appellant and her son testified at a hearing before RO personnel. A transcript of that hearing is of record. In September 2011, the Board remanded this claim for additional development and consideration. All requested actions have been completed and the claim is once again before the Board. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran's death certificate reflects that he died in November 2006 and lists the principal cause of death as cardiac arrest due to respiratory failure, due to (or as a consequence of) sepsis, due to (or as a consequence of) myocardial infarction, due to (or as a consequence of) colon carcinoma. 2. At the time of his death, service connection had been established for bronchial asthma, rated at 60 percent disabling, and status post cystoproctatectomy with ileo conduit for bladder cancer, rated at 60 percent disabling. The combined service-connected disability rating was 80 percent. 3. The cause of the Veteran's death was not shown in service or for many years thereafter, and the most probative evidence indicates the Veteran's death is unrelated to service or any event of service, to include any chemical exposure or exposure to aniline dyes. 4. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities caused or contributed substantially or materially to cause his death. CONCLUSION OF LAW The requirements for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA has a duty to notify and assist a claimant 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). VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). In claims for dependency and indemnity compensation (DIC) benefits, including cause of death, VA must provide: (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 claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Veterans Claims Assistance Act (VCAA) notice applies to all five elements of a service-connection claim - including the downstream disability rating and effective date elements. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Additionally, it must be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision. Pelegrini v. Principi, 18 Vet. App. 112 (2004), but see Prickett v. Nicholson, 20 Vet. App. 370 (2006) (VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by a subsequent SOC or SSOC). Here, January 2007 and October 2011 letters advised the appellant of the evidence needed to substantiate her claim and explained what evidence VA was obligated to obtain or to assist her in obtaining and what information or evidence she was responsible for providing. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). The January 2007 letter advised the appellant of how VA establishes an effective date in accordance with Dingess/Hartman, supra. Finally, the October 2011 letter provided the additional, claim-specific, information required by Hupp. The timing deficiency with regard to the October 2011 letter was cured by the readjudication of the claim in the July 2012 supplemental statement of the case (SSOC). Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). VA has also fulfilled its duty to assist. The Veteran's service treatment records and post-service VA treatment records were obtained and associated with the claims file. The appellant has not identified any additional evidence that has not been requested or obtained. Additionally, medical nexus opinions were obtained in May 2010, and in October 2011 on the determinative issue of causation, which considered the appellant's specific contentions discussed below. In obtaining the October 2011 opinion as well as the Veteran's VA treatment records dated from June 2006 to November 2006, the Board finds substantial compliance with the September 2011 remand directives. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The appellant was afforded a hearing before a Decision Review Officers (DRO). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the DRO who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. During the hearing, the DRO specifically clarified the issues on appeal. Additionally, throughout the hearing, the DRO sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding. The hearing focused on the elements necessary to substantiate the claim and testimony relevant to those elements was provided. Neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the March 2010 DRO hearing. As such, the Board finds that no further action pursuant to Bryant is necessary, and the appellant is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence. The appellant was an active participant in the claims process by submitting evidence and argument. Therefore, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the appellant. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Entitlement to Service Connection for the Cause of the Veteran's Death Initially, the Board notes the appellant is already in receipt of Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318 as the Veteran was in receipt of a total rating for 10 years prior to his death. However, she maintains that the cause of the Veteran's death is related to service or his service connected disabilities. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Regulations provide that 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). 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 C.F.R. § 3.312(a). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c)(1). In determining whether the 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. Id. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category, there would be included service-connected diseases or injuries of any evaluation (even 100 percent evaluations) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran died in November 2006 as an immediate result of cardiac arrest due to respiratory failure. Sepsis, myocardial infarction, and colon carcinoma were also listed as significant conditions. At the time of his death, service connection was in effect for bronchial asthma and status post cystoproctatectomy with ileo conduit for bladder cancer. The appellant argues that the Veteran's colon cancer, diagnosed in 2006, is due to his military service, specifically, due to his exposure to chemicals and aniline dyes. She states she was told by the Veteran's treating physician that the Veteran's bladder cancer, which was service-connected due to his exposure to aniline dyes, could reoccur and affect different body parts. See August 2007 Notice of Disagreement and March 2010 statement from the appellant's son. The Veteran's service treatment records note a diagnosis of a systolic mitral murmur and hospitalization for urethritis in November 1943. An August 1945 Certificate of Disability for Discharge determined that he was unfit for service due to bronchial asthma. However, there is no indication in the service treatment records of either sepsis or colon carcinoma during service. Following his separation from military service, in an August 1945 rating decision, the Veteran was granted service-connection for asthma. VA treatment records beginning in the 1990s showed that the Veteran received treatment for various disorders, including asthma and bladder cancer, diagnosed in 1994. In a July 1998 rating decision, the RO granted the Veteran's claim of entitlement to service connection for bladder cancer based on the findings of an April 1998 VA examination. The VA examiner stated that if the Veteran was exposed to lead paints and aniline dyes, then it is very likely an etiology of bladder cancer, as a number of dyes are considered a risk in the development of bladder cancer. In June 2006, the Veteran was diagnosed with colon cancer. He underwent surgical procedures to remove rectal lesions. The Veteran remained hospitalized from June to November 2006 at the Providence VA Medical Center (VAMC). The Board notes the appellant's contention that the Veteran's VA treating physician told her that colon cancer was due to the Veteran's military service and his exposure to chemical s and aniline dyes because the cancer could reoccur and affect different body parts. However, at no point was this statement attributing the Veteran's colon cancer to his military service transcribed to the VA treatment records. As such, there is no comment as to the etiology of the Veteran's colon cancer in the VA treatment records dating from June to November 2006. In May 2010, a medical opinion was provided by a VA Chief of Hematology and Oncology. The physician recounted the Veteran's medical history, as well as his treatment at the Providence VAMC from June to November 2006. She noted his surgeries in June and again in October 2006, as well as continuing post-operative issues, including infections, intubation, total parenteral nutrition (TPN), cutaneous fistula, sepsis, endocardititis, and shock, which eventually led to death. The Chief also stated that bladder cancer is associated with smoking, analgesic abuse, chronic urinary tract inflammation, genetic factors, and arylamines (chemical, paint, and dye industries) and aniline dyes. On the other hand, colon cancer is associated with smoking and alcohol intakes, diets rich in fat and cholesterol, inflammatory bowel disease (IBD), previous history of colon cancer, prior radiation to the prostate, family history and genetic factors. She specifically stated that as of January 2010, risk factors for colorectal cancers do not include occupational exposure to aniline dyes or to previous bladder cancer/treatment. Additionally, the U.S. Department of Health and Human Service, Agency of Toxic Substances and Disease Registry in 2001, determined there was no causative link for colon cancer to exposure to benzadines, which is a type of aniline dye. In rendering her opinion, the Chief concluded that the Veteran did not die from colon cancer, per se, but from complications of the surgery. She stated that there was absolutely no connection between colon cancer and the Veteran's military service or his previous bladder cancer. The Chief further stated that there was no evidence to suggest that a history of chemical exposure in service had any relationship to colon cancer and, while recurrent cancer can indeed affect different parts of the body, the Veteran did not appear to have recurrent bladder or colon cancer. Therefore, in her opinion, the Veteran's colon cancer was not caused by the bladder cancer, or previous treatment for bladder cancer, exposure to aniline dyes, and his death was not hastened as a result of his service-connected bladder cancer. In September 2011, the Board remanded this claim in order to obtain an opinion as to whether the Veteran's asthma or the in-service systolic mitral murmur contributed materially to or hastened the Veteran's death. In October 2011, the requested opinion was obtained. At that time, the examiner determined that asthma or a systolic murmur did not contribute to or hasten the Veteran's death. The examiner stated the Veteran died of respiratory failure, secondary to sepsis, a known etiology to death. Further, the Veteran's asthma did not lead to respiratory failure, but sepsis did. Regarding the systolic mitral murmur, the examiner determined that it was well tolerated as it was recognized in 1943. Therefore, the murmur did not contribute to the Veteran's death but, again, sepsis did. It is also acknowledged that the Veteran's claims file contains treatise evidence previously submitted in connection with the claim of entitlement to service connection for bladder cancer. The treatise provided by the Veteran concerned information about aniline dyes, including physical and chemical properties, as well as its uses. The Board notes that a treatise "can provide important support when combined with an opinion of a medical professional" if the treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus). Here, the treatise information included in the claims file does not specifically relate to the facts and circumstances surrounding this particular case. Rather, the information is general. Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Thus, this information, alone, is of little or no probative value. Although the appellant no doubt sincerely believes in the viability of her claim, the Board has "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). The determination is based on an analysis of all the evidence of record, both lay and medical, and the evaluation of its competency and credibility, which in turn determines its ultimate probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). While the appellant and her son are competent to testify as to the Veteran's observable symptomatology, such as difficulty breathing, they are not competent or qualified, as laypersons, to render an opinion as to whether the Veteran death is due to his military service or to an already service-connected disability. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In this regard, the question regarding the potential relationship between the conditions causing or contributing to his death and the Veteran's military service or service-connected disabilities is highly complex in nature, and requires medical expertise to determine. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds the opinion of the VA examiners to be significantly more probative than the lay assertions of the appellant and her son. In view of the foregoing, the Board concludes that the most probative evidence of record fails to demonstrate a service connected disability caused or materially contributed to the cause of the Veteran's death. Ultimately, the probative evidence of record fails to demonstrate that cardiac arrest due to respiratory failure, with significant conditions of sepsis, myocardial infarction, and colon carcinoma, were present during service or for many years thereafter, and there is no probative evidence relating such disabilities to service or to any service-connected disability. Moreover, as indicated previously, there is no probative or persuasive evidence demonstrating that the Veteran's service-connected disabilities caused, combined to cause, contributed substantially or materially to cause, or aided or lent assistance to, his death. Thus service connection for the cause of the Veteran's death is not warranted and the claim must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for cause of the Veteran's death is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs