Citation Nr: 1324231 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 07-25 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to April 1971. His military service included service in the Republic of Vietnam. The Veteran died in April 2006; and the appellant is the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in pertinent part, denied service connection for the cause of the Veteran's death and improved Department of Veterans Affairs (VA) death pension benefits. In May 2007, the Appellant submitted a notice of disagreement (NOD) with the denial of service connection for cause of the Veteran's death. In July 2007, the Appellant submitted a NOD with the denial of VA improved death pension benefits. In July 2007, the RO issued a statement of the case (SOC) to the Appellant which addressed the issue of service connection for cause of the Veteran's death. In January 2008, the Appellant submitted an Appeal to the Board (VA Form 9) from the denial of service connection for the cause of the Veteran's death. In December 2008, the RO issued a SOC to the Appellant which addressed the issue of her entitlement to VA improved death pension benefits. In February 2011, a service organization submitted a Written Brief Presentation on behalf of the Appellant. A review of the record reflects that the Appellant had not executed a power of attorney or otherwise indicated that she wished to be represented by a service organization in the instant appeal. In March 2011, the Board informed the Appellant that "it is unclear as to your wishes for representation." The Board requested that the Appellant clarify whether she wished to be represented in the instant appeal. She was informed that if she did not reply to the Board's request within 30 days, it would be presumed that she wished to represent herself in the instant appeal. The Appellant did not reply to the Board's March 2011 request for clarification of representation. In January 2012, the appellant submitted a VA Form 21-22 listing Texas Veterans Commission as her representative. The Appellant did not submit a substantive appeal from the denial of VA improved death pension benefits. Therefore, the issue is not on appeal and will not be addressed in the decision below. This case was previously before the Board in May 2011, February 2012, and October 2012. Each time, the Board remanded the case for further development. It is now before the Board for further appellate action. FINDINGS OF FACT 1. The Veteran died in April 2006; "pancreatic" was certified as the immediate cause of death. 2. The appellant is the Veteran's surviving spouse. 3. The appellant timely filed claims for Dependency and Indemnity Compensation (DIC) based on service connection for cause of the Veteran's death. 4. Pancreatic cancer was not present in service, did not manifest to a compensable degree within one year of separation, was not shown to be related to service, nor was it due to or aggravated by a service-connected disability. CONCLUSION OF LAW The Veteran's disability manifested by pancreatic cancer was not due to his presumed exposure to Agent Orange that was incurred in his active service in the Republic of Vietnam or otherwise related to the Veteran's military service; service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Notice which informs the Veteran of how VA determines disability ratings and effective dates should also be provided. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Hupp v. Nicholson, 21 Vet. App. 342 (2007), which held that, in the context of a claim for DIC, VCAA notice must include: (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or 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. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In a letter dated in August 2006, the appellant was apprised generally of the information and evidence necessary to establish her claim for service connection for the cause of the Veteran's death and; of the evidence that VA would seek to provide; and of the information and evidence that she was expected to provide. Since the Veteran did not have any service-connected disabilities, notice as to the evidence and information required to substantiate a DIC claim based on a previously service-connected condition was not required. This notice satisfies VA's duty to notify. This claim was previously before the Board in May 2011, February 2012, and October 2012 and each time remanded by the Board. In the May 2011 remand, the Board requested that the Appeals Management Center (AMC)/RO contact the appellant and request that she provide information regarding treatment for the Veteran for lung cancer, pancreatic cancer and other disabilities. The Board remand included specific names of physicians who treated the Veteran. In compliance with this remand, AMC sent the appellant a letter asking for these records in a May 2011 letter. The May 2011 Board remand also requested that SSA records be obtained. Since that time, SSA records have been associated with the claims file. Additionally, the May 2011 remand stipulated that a qualified clinician should review the claims file and provide an opinion. This was accomplished in August 2011. In the February 2012 remand, the Board noted that the appellant changed her address and several letters from the VA needed to be sent to the new address. This was accomplished in February 2012. In the October 2012 remand, the Board found that the most recent supplemental statement of the case dated in September 2012 was not sent to the appellant's representative. This was accomplished in a February 2013 letter. Accordingly, there has been substantial compliance with all previous Board remand stipulations. 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 (2002). Based on this background, the Board finds that VA has given the appellant every opportunity to provide information and evidence with respect to the issue now before the Board, and that VA has obtained, or has attempted to obtain, all known documents that would substantiate the assertions she has made. In addition, the appellant submitted a letter in November 2012 requesting that one of the counselors call her. Although unsure if this statement was directed toward the VA, in June 2012, the Board requested that the AMC call the appellant to ensure that she had an opportunity to provide any additional information. The AMC called the appellant and she said that she had nothing to share or discuss. VA has done everything reasonably possible to assist the appellant with respect to her claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured or the appellant has been asked to provide this information. A medical opinion has been sought in conjunction with this claim. The duty to assist has been fulfilled. Relevant laws and regulations In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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. 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. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. 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 of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Therefore, in order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disorder caused the death or substantially or materially contributed to it. 38 U.S.C.A. § 1310. An appellant may also satisfy the requirements of § 3.312 if the evidence shows that the Veteran was entitled to service connection for the disorder that caused or was the contributory cause of death. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury or disease incurred in the line of duty while in active military service. 38 C.F.R. §§ 3.303, 3.304. Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a), 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may also 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). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis The appellant claims that service connection for the cause of the Veteran's death is warranted as the Veteran's ultimately fatal lung and pancreatic cancers were incurred secondary to his Agent Orange exposure while in the Republic of Vietnam. The death certificate confirms that the Veteran died in April 2006. The immediate cause of death was listed as "pancreatic." At the time of the Veteran's death, the Veteran was not service-connected for pancreatic cancer, or any other disability. Based on the evidence of record, the Board finds that a service-connected disability was not the principal or contributory cause of death. 38 C.F.R. § 3.312(b) and (c). In order to establish service connection for death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999). As to element (1), the death certificate of record shows that the Veteran died in April 2006. As to element (2) and (3), the Board initially notes that a review of the evidence does not suggest that pancreatic cancer was present in service. The appellant does not contend that the Veteran's pancreatic cancer began in service. Evidence of record shows that the Veteran was diagnosed with pancreatic cancer in 2005. Furthermore, the Veteran's service treatment records do not show a diagnosis or treatment for pancreatic cancer. Instead, the appellant asserts that the Veteran's pancreatic cancer was caused by his exposure to herbicides during service in the Republic of Vietnam. If the Veteran is found to have served in the Republic of Vietnam, his exposure to herbicide agents such as Agent Orange is presumed and certain diseases shall be service-connected if the requirement of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307 (2012). The Veteran's DD Form 214 shows foreign service and his personnel records show service in Vietnam. He received the National Defense Service Medal, Vietnam Service Medal and Vietnam Campaign Medal. As explained earlier, the Board determined that 38 C.F.R. § 3.307(a)(6)(iii) required a servicemember's presence at some point on the landmass or inland waters of the Republic of Vietnam in order to benefit from the regulation's presumption. In this case, the evidence shows that the Veteran indeed had service in Vietnam. Since the Veteran had service in Vietnam, the question becomes whether the Veteran died due to a presumptive disease under 3.309(e), or if died from a disease that was related to herbicide exposure. The appellant has asserted that the Veteran's death was a result of his pancreatic and lung cancer which was a result of exposure of herbicide exposure during his military service in Vietnam. The claims file shows that the Veteran died from pancreatic cancer. An October 2005 treatment record shows a diagnosis of Stage IV metastatic pancreatic adenocarcinoma with lymphangitic spread within the lung, pneumothorax on the right status post biopsy, and pancreatic mass. See October 2005 treatment record from Dr. P. Treatment records show that he was first diagnosed with pancreatic cancer in June 2005. He was told at that time that his life expectancy was probably on the order of six to eight months if he did not respond to therapy. Prior to the pancreatic cancer diagnosis, the medical records show some discussion of the origin of the cancer as he had evidence of cancer in his lungs. A May 2005 treatment record noted that the growth pattern and immunophenotype were consistent with either a lung or pancreas primary cancer. After immunohistochemical study in June 2005, the Villin result essentially excluded lung primary and noted that Villin results were characteristic of several types of GI adenocarcinoma, particularly pancreas. Specifically, the tumor cells showed strong positivity toward the antibody Villin and were negative for the antibody surfactant ApoA1. The negative result for ApoA1 made primary lung carcinoma less likely. In addition, the VA physician who reviewed the Veteran's claims file in August 2011 also concluded that the Veteran had adenocarcinoma of the pancreas with metastatic lung disease at the time of this death. This opinion is adequate as it is based on a review of the history and as it is supported by a rationale such that the Board can render an informed determination. Although the Veteran had metastatic lung disease due to his adenocarcinoma of his pancreas, the competent evidence demonstrates that the cancer originated in his pancreas. This distinction is important as the appellant claims that the Veteran's cancer was the result of exposure to herbicide during his military service. Under 38 C.F.R. § 3.309(e), diseases associated with exposure to certain herbicides include respiratory cancers (cancer of the lung, bronchus, larynx or trachea) but not pancreatic cancer. Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, the Secretary has determined that a presumption of service connection is not warranted for any disease not affirmatively named in the presumptive list. See Fed. Reg., 72 FR 32395, 32397- 32398 (June 12, 2007). Therefore, under a presumptive theory, the Veteran's pancreatic cancer is not considered to be due herbicide exposure. The Veteran was also diagnosed with metastatic lung disease. Lung cancer is on the presumptive list of diseases associated with herbicide exposure; however, the medical evidence establishes that the lung cancer developed as a result of his metastatic pancreatic cancer. A presumptive cancer that develops as a result of a metastasizing non-presumptive cancer cannot be service connected. See 38 U.S.C.A. § 1113(a) (West 2002); Darby v Brown, 10 Vet. App. 243 (1997) (noting that the presumption of service connection for lung cancer was rebutted by medical evidence showing that the stomach was the primary site); see also VAOPGCPREC 18-97 (presumptive service connection may not be established under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a) for a cancer listed in 38 C.F.R. § 3.309 as being associated with herbicide exposure if the cancer developed as the result of metastasis of a cancer that is not associated with herbicide exposure). Therefore, even though the Veteran had lung cancer, it was due to his pancreatic cancer which is not considered a presumptive disease listed under 3.309(e). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The only medical evidence of record that discusses the possibility of a relationship between pancreatic cancer and the Veteran's exposure to herbicide or military service is the VA August 2011 opinion. In August 2011, the AMC requested that a VA physician review the Veteran's claims file and provide an opinion as to a relationship between the Veteran's military service and the Veteran's cause of death. After reviewing the Veteran's claims file, which included service treatment records, and private and VA treatment records, the August 2011 VA physician found that the Veteran's death was noted to be due to adenocarcinoma of the pancreas. He opined that pancreatic cancer with metastasis to the lungs was less likely as not caused by or a result of exposure to agent orange or otherwise caused by military service. The physician explained that exposure to Agent Orange has not been shown to cause adenocarcinoma of the pancreas. The physician also noted that the Veteran did not have any other exposure in service that is known to cause this cancer. The Board acknowledges the appellant's May 2007 statement where she explained that the Veteran was diagnosed with pancreatic cancer which spread to his lungs. She contends that lung cancer is one of the presumptive diseases for Veteran's exposure to Agent Orange and the Veteran served in Vietnam. She noted that if Agent Orange affects other parts of the body and causes cancer there, then she did not understand why Agent Orange would not cause cancer in all of the vital organs of the body. First, the Board again notes that a presumptive cancer (i.e., lung cancer) that develops as a result of a metastasizing non-presumptive cancer (i.e., pancreatic cancer) cannot be service connected. See 38 U.S.C.A. § 1113(a) (West 2002). Second, the Board does not find that appellant is competent to provide evidence as to the relationship of Agent Orange exposure and the Veteran's pancreatic cancer. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability as to which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). In this case, the appellant's statements as to an internal medical process, cancer, and its relationship to environmental exposure are beyond the ability of a lay witnesses to observe. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Board has considered the doctrine of reasonable doubt, but for the reasons just expounded, finds it to be inapplicable, as the record does not provide an approximate balance of negative and positive evidence on the merits. 38 C.F.R. § 3.102. Finally the Board has considered whether 38 U.S.C.A. § 1318 is applicable to this case. Under 38 U.S.C.A. § 1318, VA death benefits may be paid to a deceased Veteran's surviving spouse in the same manner as if the Veteran's death is service-connected, even though the Veteran died of nonservice-connected causes, if the Veteran's death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the Veteran's release from active duty, and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war who died after September 30, 1999. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. As previously stated, the Veteran had no service-connected disabilities at the time of his death, and was not entitled to receive compensation for any disability. Accordingly, there are no service-connected disabilities that were rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding the Veteran's death, and there were no service-connected disabilities that were continuously rated totally disabling for a period of not less than five years from the date of his April 1971 service separation. Additionally, the Veteran was not a former prisoner of war. Therefore application of 38 U.S.C.A. § 1318 is not warranted. In denying this claim, the Board does not wish in any way to diminish the Veteran's service. Although it is sympathetic to the appellant's claims, the Board is without authority to grant the claims on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs