Citation Nr: 1324267 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 08-37 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from September 1966 to August 1973 and from November 1980 until his retirement in September 1993. He died in November 2004; the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claim. A review of the documents in the electronic 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. It is not shown that the Veteran set foot on land in the Republic of Vietnam, or was in Korea during a period of time when the service department has determined that herbicides were used, or was otherwise exposed to an herbicide agent (to include Agent Orange) during service. 2. The Veteran died in November 2004 at the age of 56 as a result of lung cancer with liver metastasis. 3. At the time of his death, the Veteran had been granted service connection for schizophrenia, residuals of orchiectomy for seminoma, hiatal hernia with reflux, blepharitis, residuals of right thumb fracture, low back disability, residuals of excised skin lesions, renal cysts, and functional hypoglycemia. 4. The medical evidence and opinions of record establish that lung cancer with liver metastasis that led to the Veteran's death was not causally linked to the Veteran's service or any incident of service. CONCLUSION OF LAW A service-connected disability or disease did not contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 1116, 1131, 1137, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for service connection for the cause of a Veteran's death, the VCAA requires notice to include a statement of the conditions (if any) for which the Veteran was service-connected at the time of his or her death; an explanation of the evidence and information required to substantiate a claim based on a previously service-connected condition; and, an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Here, a March 2005 letter informed the appellant as to what information and evidence was needed to support a claim for DIC. The letter, however, did not inform the appellant of the Veteran's service-connected disabilities at the time of his death. To the extent that the March 2005 letter did not fulfill the notice requirements established, the Board notes that remand is only required where the notice provided was inadequate and not otherwise shown to be non- prejudicial. Cf. Medrano v. Nicholson, 21 Vet. App. 165, 170-71 (2007) (Board is not prohibited from evaluating for harmless error, however, the Court gives no deference to any such evaluation, which is subject to the Court's de novo review). Actual knowledge can also be established by statements or actions by the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Here, it is clear from the statement from the appellant and her representative that she had actual knowledge that (a) the Veteran had been awarded service connection for schizophrenia, residuals of orchiectomy for seminoma, hiatal hernia with reflux, blepharitis, residuals of right thumb fracture, low back disability, residuals of excised skin lesions, renal cysts, and functional hypoglycemia and (b) that she needed medical evidence to establish a link between the cause of his death and his active duty/service-connected disability. The appellant, through her representative, discussed the Veteran's schizophrenia in a May 2013 Informal Hearing Presentation. The appellant's knowledge can be imputed to her through her representative. In light of the foregoing, the Board finds that any possible error with regard to Hupp notice was not prejudicial to the appellant. The Board, therefore, finds that VA has discharged its duty to notify and it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Moreover, no information was provided to the appellant regarding the criteria governing the assignment of an effective date, if service connection for the cause of the Veteran's death were granted. See Dingess, supra. However, as her claim has not been granted, the lack of information applicable if the claim were to be granted does not prejudice the appellant. Neither the appellant nor her representative has alleged that there was any defect in the content or timing of notice to her. VA's duty to notify has been satisfied, and appellate review may proceed. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records (STRs), service personnel records and relevant, identified post-service treatment records are contained in the record. All records identified by the appellant as relating to the claim have been obtained, to the extent possible. Moreover, a VA medical opinion was obtained in June 2012. The VA physician reviewed the claims file and the Board finds the medical opinion sufficient upon which to base a decision with regards to the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 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 is required to comply with the duty to assist. Law and Regulations The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise 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. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, 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 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). 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 disease or injuries of any evaluation (even though evaluated as 100 percent disabling) 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). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that malignant tumor is listed as a chronic disability under 38 C.F.R. § 3.309(a); therefore this disability may be subject to service connection based on continuity of symptomatology. Moreover, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, may be presumed to have been incurred in service if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease initially 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). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. In addition, the Department of Defense has determined that Agent Orange was used along the Korean DMZ from April 1968 to July 1969; veterans assigned to one of the units listed as being at or near the Korean DMZ during that time period are also presumed to have been exposed to herbicide agents. The Department of Defense has identified specific units that served in areas along the DMZ in Korea where herbicides were used between April 1968 and July 1969. See MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10 subsection (l). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease (to include lung (respiratory) cancer) to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. §§ 1112, 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Notwithstanding the foregoing presumptive provisions, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method for showing causation. Notwithstanding any other provision of law, a veteran's disability will not be considered to have resulted from a disease or injury contracted in active service on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during active service. 38 U.S.C.A. § 1103. The type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to testify as to a condition within his or her knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony can be rejected only if found to be mistaken or otherwise deemed not credible). Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Factual Background and Analysis The record reflects that the Veteran died at home in November 2004 at the age of 56. The immediate cause of his death was lung cancer with liver metastasis. No autopsy was performed. At the time of the Veteran's death, service connection was in effect for: schizophrenia, rated 0 percent disabling; residuals of right thumb fracture, rated 0 percent disabling; residuals of excised skin lesions, rated 0 percent disabling; renal cysts, rated 0 percent disabling; functional hypoglycemia, rated 0 percent disabling; residuals of orchiectomy for seminoma, rated 10 percent disabling; hiatal hernia with reflux, rated 10 percent disabling; blepharitis, rated 10 percent disabling; and low back disability, rated 60 percent disabling. The total combined disability rating was 70 percent. The appellant previously maintained that the Veteran's lung cancer was caused by herbicide exposure during his service in Korea. The RO found, however, that the evidence did not show that the Veteran was in Korea during a period of time when the service department has determined that herbicides were used and therefore the Veteran was not entitled to the presumption of herbicide exposure. The appellant now alleges that the Veteran became dependent on nicotine in order to control his service-connected schizophrenia symptomatology, and that his smoking caused his fatal lung cancer. See May 2013 Informal Hearing Presentation. Service personnel records show that the Veteran had active service from September 1966 to August 1973 and from November 1980 until his retirement in September 1993, including service in Korea from May 1972 to June 1972. There is no evidence that he ever disembarked and set foot on land in Vietnam. There is no evidence that he served along the Korean DMZ at any time from April 1968 to July 1969. STRs for the Veteran's period of service from September 1966 to August 1973 are negative for complaints or findings related to lung cancer and liver cancer. STRs show that he was hospitalized from May 1972 to June 1972 for schizophrenic reaction. Following service, an April 1975 VA examination report notes that the Veteran denied any particular psychiatric problems when he followed a diet prescribed by his doctor. The Veteran denied taking any psychiatric medication since service. Mental status examination was normal. A July 1975 rating decision awarded service connection for schizophrenia. A 0 percent rating was assigned. STRs from the Veteran's period of service from November 1980 until his retirement in September 1993 are negative for complaints or findings related to lung cancer, liver cancer and schizophrenia. Following the Veteran's second period of service, VA and private treatment records are negative for complaints or findings related to schizophrenia. VA psychiatric examination in January 1994 was within normal limits. In an August 1994 statement, the Veteran maintained that he had never had schizophrenia (rather, he had a hypoglycemic reaction in service). Furthermore, he maintained that he had never applied for service connection for this disability and did not want to be considered for a higher rating. Private treatment records show a diagnosis of seminoma of the right testicle, for which he had a right orchiectomy in April 1990. Thereafter, he had radiation therapy. A March 2003 VA outpatient treatment records notes that the Veteran reported smoking between 1/2 and 1 pack of cigarettes per day. Private treatment records dated in November 2004 show that the Veteran had a CT scan which revealed extensive metastases in the liver and an isolated lesion in the left lung. It was noted that the Veteran drank on a daily basis and smoked 11/2 packs of cigarettes every day. He died at home later that month. In June 2012 a VA opinion was obtained as to the cause of the Veteran's death. The VA physician noted the Veteran's history of testicular cancer, heavy smoking throughout his adult life, coronary artery disease and chronic obstructive pulmonary disease. After reviewing the claims file the VA physician opined that the Veteran's death was not related to his service-connected residuals of orchiectomy for seminoma or to any exposure to Agent Orange, but, rather, was related to his smoking history. The Board finds that service connection is not warranted for the cause of the Veteran's death. There is no evidence showing that lung cancer and liver cancer were manifested in service. There is also no indication that these disabilities were manifested to a compensable degree in the applicable presumptive period (one year) following the Veteran's discharge from active duty. In fact, the evidence shows that this cancer was first diagnosed in 2004, more than years after the Veteran's discharge from service. Moreover, the Veteran's service personnel records do not show Vietnam service or duty along the Korean DMZ from April 1968 to July 1969; therefore, the presumptive provisions under 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307, or MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10 subsection (l) (which provide for presumptive service connection for certain diseases, including lung cancer, based on herbicide exposure for veterans who served on land in Vietnam or along the Korean DMZ from April 1968 to July 1969) do not apply. (The Board finds that the veteran did not serve in the Republic of Vietnam, or in the waters offshore and his service did not involve duty or visitation in the Republic of Vietnam. While he served in Korea, this service was not during the period from April 1968 to July 1969. There is also no direct evidence that the Veteran was exposed to Agent Orange or other herbicide.) The appellant may still establish service connection for the cause of the Veteran's death by affirmative and competent evidence that the cancer that caused his death is related to his service or some event therein. However, as noted above, the first evidence of a diagnosis of this cancer is more than 10 years after the Veteran's discharge from active duty service in 1993. Such a long interval between service and the initial diagnosis is, of itself, a factor against a finding that this disability is service-related. Furthermore, there is no competent evidence that links this disability to the Veteran's service. The June 2012 VA opinion is against the claim, and was provided with reasons and bases after a review of the claims file. There is no medical opinion to the contrary. As regards the appellant's contentions that the Veteran became dependent on smoking in order to control his service-connected schizophrenia, the Board points out that the Veteran's schizophrenia was rated noncompensable for the entirety of the award. The Veteran denied ever having schizophrenia, and there is no evidence that he ever received any treatment for this disability or that it was ever symptomatic. Moreover, all post-service psychiatric examinations were within normal limits. No medical professional has ever stated or suggested that the Veteran's schizophrenia caused him to smoke (which in turn caused his fatal cancer). Therefore, these contentions by the appellant are not supported by the evidence of record. The Board has considered the appellant's assertions, as noted above. While laypersons are competent to discuss their observations, they are not competent to express an opinion concerning diagnoses, or etiology, of a disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998). Accordingly, service connection for the cause of the Veteran's death is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55- 57 (1991). ORDER Service connection for the cause of the Veteran's death is denied. _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs