Citation Nr: 1324826 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-31 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to October 1970. The appellant is his widow. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The appellant attended a hearing in March 2010 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board granted reopening of the claim in September 2010 based on new and material evidence, and then remanded the issue on the merits for further development. FINDINGS OF FACT 1. During his lifetime, service connection had been established for fractured right forearm with ulnar nerve paresis at 30 percent disabling, right hip scar at 0 percent disabling, and right forearm scars at 10 percent disabling, for a combined total of 40 percent. 2. The Veteran's death certificate showed he died in October 1999 of an immediate cause of death of cancer of the kidney with metastasis. 3. Cancer of the kidney was not manifested during service or within one year of separation from service, and is not shown to be otherwise related to service. 4. A disability of service origin is not shown to have been causally or etiologically related to, or to have played any role in producing or hastening, the Veteran's death. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed to by, a service-connected disability or a disability of service origin. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that when VA receives a detailed claim for service connection for cause of death or Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1310, it must provide a detailed notice to the claimant. Specifically, the Court held that, under section 38 U.S.C.A. § 5103(a), the notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected. The record reflects that in an October 2011 letter the appellant was informed of the evidence needed to substantiate her claim of entitlement to service connection for the cause of the Veteran's death. It also informed her of the evidence that she should submit and that which VA would obtain on her behalf. The letter included a list of the Veteran's service-connected disabilities during his lifetime. The case was readjudicated in June 2012. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, private treatment records, Social Security Administration records, hearing testimony, and lay evidence. The Board also notes that actions requested in the prior remands have been substantially complied with. Indeed, additional VCAA notice was provided and the Veteran's service personnel records were obtained. While her representative argues the October 2011 notice was faulty because it again mentioned new and material evidence, the proper information was also provided regarding the establishing service connection for the cause death. Moreover, her level of participation in the claim, to include submitting argument as to the Veteran's exposure to Agent Orange as well as a medical opinion and treatise information suggests actual knowledge of the requirements for establishing service connection for the cause of the Veteran's death. Additionally, although the prior remand suggested that additional development to verify herbicide exposure may be necessary pursuant to M21-1MR, Part IV, Subpart ii, 2.C.10.o, the Board notes those provisions apply only if the Veteran alleges exposure along the demilitarized zone (DMZ). The record does not show the Veteran alleged he was present in the DMZ in Korea, and during the July 2009 DRO hearing the appellant testified that she did not recall the Veteran stating he served along the DMZ. Thus, further development is not required. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The appellant has been afforded hearings before a Veterans Law Judge (VLJ) and a Decision Review Officer in which she presented oral argument in support of her claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the officials who chair a hearing explain the issue and suggest the submission of evidence that may have been overlooked. Here, both the DRO and the VLJ identified the issue to the claimant and asked specific questions relevant to the claim. Additionally, the appellant volunteered the Veteran's health history and treatment. Moreover, the VLJ advised the appellant that information establishing the Veteran's presence at the DMZ in Korea would be helpful. The hearing focused on the elements necessary to substantiate the claim, and the appellant provided testimony relevant to those elements. 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 claimant 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 herself and VA in obtaining such evidence. The appellant was an active participant in the claims process by submitting evidence and argument to support her claim. As noted above, her level of participation in the claim suggests actual knowledge of the requirements for establishing service connection for the cause of the Veteran's death. 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). Service Connection for Cause of Death Service connection for cause of death may be awarded to a veteran's surviving spouse for death resulting from a service-connected disability or a disability related to service. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a veteran will be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered 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). The service-related disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or 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). The debilitating effects of a service-connected disability must have made the veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also 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 disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 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 Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). After a review of all the evidence of record, the Board finds that the probative evidence of record is against a finding that the kidney cancer which caused the Veteran's death was in any way related to service. A certificate of death dated October 1999 reflects that the Veteran died in October 1999 at the age of 51. The immediate cause of the Veteran's death was reported as cancer of the kidney with metastasis. At the time of the Veteran's death, service connection was not in effect for cancer of the kidney. Service treatment records do not report any complaints, treatment, or diagnosis of kidney cancer or kidney disease. Post-service treatment records also do not show complaints, treatment, or diagnosis of kidney cancer for many years after service. The record contains no competent opinion or evidence that connects the Veteran's kidney cancer with his service on a basis other than the alleged Agent Orange exposure. The Board acknowledges the appellant's assertion that the Veteran's cancer was due to Agent Orange exposure. The Board also acknowledges the June 2008 statement from a VA doctor noting that the Veteran served in Vietnam, and according to his information, had significant exposure to Agent Orange during the course of his service there. The physician noted that, although as yet nobody has confirmed a causal relationship, in his professional opinion, it is likely that Agent Orange was a significant contributing factor to his getting transitional cell carcinoma. He noted an article in the Journal of American Veterinary Medical Association that showed exposure to herbicides increased the risk of transitional cell carcinoma in Scottish terrier dogs. In a later copy of the letter, the word Vietnam is crossed out and Korea is written above it. Based on other handwritten notations on that document and on other documents submitted by the appellant, it appears that she corrected the document to show Korea, not the physician. As the factual premise of the physician's statement was based on Vietnam service which the Veteran did not have, this document has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "an opinion based upon an inaccurate factual premise has no probative value"). The appellant's alteration of the document to change Vietnam to Korea, without additional comment or acknowledgment by the physician, does not serve to elevate the probative value of the document. In any event, as will be discussed below, the probative evidence does not reflect the Veteran was exposed to Agent Orange during his service in Korea. The Department of Defense (DOD) recognized that certain veterans who had served with a limited number of units had been exposed to herbicides during their tour of duty in Korea near the demilitarized zone (DMZ) from April 1968 to July 1969. VA amended 38 C.F.R. § 3.307 to extend the relevant period to August 31, 1971. 76 Fed. Reg. 4245-01 (Jan. 25, 2011). Specifically, the regulation states that a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the DOD, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv). The Veteran's service personnel records showed his service in Korea ran from November 30, 1966 to June 24, 1968 with the 4th Support Company of the 4th USAMICOM (U.S. Army Missile Command). The period of April 1968 to June 1968 falls within the regulation. However, the Veteran's unit is not one recognized by DOD as having served in areas along the Korean DMZ. Therefore, the Board finds that the Veteran is not presumed to have been exposed to herbicides. Moreover, kidney cancer is not a disability recognized by VA as being associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Thus, service connection for kidney cancer cannot be established on a presumptive basis pursuant to 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). The appellant has made multiple arguments in an attempt to substantiate her claim. She has argued he actually suffered from lung cancer rather than kidney cancer, as well as several other disabilities, and was unhappy that the only disability listed on the death certificate was kidney cancer with metastasis. The Board finds the opinion of the medical professionals that the Veteran's primary cancer was of the kidney to be significantly more probative than the appellant's assertion to the contrary. In any event, the central theme of her argument remains that his cancer and other conditions were the result of Agent Orange exposure. However, as noted above, there is no competent and credible evidence establishing that the Veteran was exposed to herbicides during his military service. Thus, regardless of the disability which caused the Veteran's death, there is no basis upon which service connection based on Agent Orange exposure can be established. Although the Veteran's case does not fall within the above presumptive provisions, the appellant is not precluded from establishing service connection for kidney cancer with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, the appellant does not contend and the record does not show that the Veteran's kidney cancer was present in service or within one year following his discharge from service. Moreover, there is no competent evidence indicating that the kidney cancer was related to service for reasons other than alleged Agent Orange exposure. Additionally, there is no competent evidence even suggesting that the Veteran's service-connected fracture of the right forearm with paresis of the ulnar nerve or his service-connected scars contributed to his death in any way. The Board notes that a VA opinion was not obtained in this case. However, as the most probative evidence fails to establish the Veteran was exposed to herbicides, there is no evidence of his kidney cancer in service or within one year following service, and no competent evidence even suggesting a link between the Veteran's death and his military service, an opinion is not required. In summary, although the Board sympathizes with the appellant's loss of her husband, the Board finds that the preponderance of the evidence is against a finding that the Veteran's death was related to service or a service-connected disability. 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 the cause of the Veteran's death is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs