Citation Nr: 1326667 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-28 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The deceased Veteran had recognized guerrilla service from November 1943 to September 1945 and recognized service in the Special Philippine Scouts from September 1946 to March 1949. The Veteran died in December 1983. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. The Board has reviewed the physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. Due to the advanced age of the appellant, 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. In December 1983, the Veteran died of pancreatic adenocarcinoma (i.e., pancreatic cancer). 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. There was no complaint, finding, or treatment for pancreatic cancer during service, and chronic symptoms of pancreatic cancer did not manifest during service. 4. Symptoms of pancreatic cancer were not continuous since service and did not manifest to a compensable degree within one year of service separation. 5. The Veteran's pancreatic cancer first manifested many years after service separation and was not causally or etiologically related to service. CONCLUSION OF LAW The cause of the Veteran's death was not incurred as a result of a service-connected disability or any incident of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310, 5103, 5103A (West 2002 & 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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, 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 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). Proper notice from VA 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). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of a veteran's death, section 5103(a) notice must be tailored to the claim. The notice should 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In the August 2010 notice letter sent prior to the initial denial of the claim, the RO advised the appellant what the evidence must show in order to support a claim for Dependency and Indemnity Compensation (DIC) benefits. The RO also described the types of information and evidence that the appellant needed to provide in support of the claim, and explained what evidence VA was responsible for obtaining or would assist in obtaining on her behalf in support of the claim. The RO further explained how VA determines the effective date once a claim for death benefits has been granted. The August 2010 notice letter also fully complied with the Hupp notice requirements. In the notice letter, the RO advised the appellant that service connection had not been established for any disability during the Veteran's lifetime. The RO also explained the evidence and information required to substantiate a DIC claim based on a previously service-connected condition, as well as the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Therefore, the duty to notify was fully satisfied by way of the August 2010 notice letter. Regarding VA's duty to assist in claims development, the Federal Circuit has held that 38 U.S.C.A. § 5103A(a) applies to DIC claims. Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Under such statutory authority, VA is required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A (a)(1). However, VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim. In this case, the Veteran's service treatment records (STRs) for his second period of service are fire-related; therefore, the complete service records are not available for review. The Board is aware that when service records are unavailable through no fault of a veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As will be explained below, however, the Board concludes that the heightened duty to assist has been met. In August 2010, the RO requested the Veteran's service treatment records for the period of service from September 1946 to March 1949. The response was that the service treatment records were fire-related and unavailable. In September 2010, a Formal Finding on the Unavailability of Service Treatment Records for the period of service from September 1946 to March 1949 was made. The RO contacted the appellant in September 2010 and advised her that the appropriate facilities where the Veteran's service treatment records had been stored had been contacted but the Veteran's complete service treatment records were unable to be obtained. The RO also advised the appellant that a decision would be made on the claim without review of the complete service treatment records. The RO then asked the appellant to provide any service treatment records she had or alternate sources of information in support of the claim within ten (10) days of the letter. When the claim was subsequently denied in the October 2010 rating decision, the RO advised the appellant that her claim would be reconsidered in the future if the Veteran's service treatment records were later obtained. In January 2011, the appellant responded to the September 2010 letter and submitted copies of a December 1983 hospital summary from the Veterans Memorial Medical Center in Quezon City and the Veteran's death certificate. In light of the foregoing actions, the Board finds that further efforts to try to obtain the missing service records would be futile. Also, by way of the September 2010 letter, the duty to notify of VA's inability to obtain records, as outlined in 38 C.F.R. § 3.159(e), was satisfied. Although the appellant was not specifically advised that it was ultimately her responsibility to provide the missing service records, the September 2010 letter asked the appellant to provide any service treatment records she had or alternate sources of information in support of the claim, and she did not submit any service treatment records; therefore, it is reasonable to conclude that she was aware that it was her responsibility to provide the missing records. In this case, the record contains all available evidence pertinent to the appeal. The appellant was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The Board notes that the appellant requested, on the September 2011 VA Form 9, that VA obtain records from the Veterans Memorial Medical Center in Quezon City showing treatment prior to her late husband's death. Upon review of the record, the Board notes that no request for records from the facility was made. However, the appellant has already provided a December 1983 hospital summary showing that the Veteran was treated at the Veterans Memorial Medical Center from December 22, 1983 to December 24, 1983 for pancreatic cancer with secondary upper gastrointestinal bleeding and cardiorespiratory arrest. It is noted, in the December 1983 hospital summary, that the Veteran had been diagnosed with pancreatic cancer in November 1982 and started chemotherapy in September 1983. The death certificate establishes pancreatic cancer as the cause of the Veteran's death, and the December 1983 hospital summary shows treatment for pancreatic cancer, which was first diagnosed many years after service. The appellant has not explained how obtaining additional treatment records from the Veterans Memorial Medical Center would help to substantiate her appeal (i.e., relate the Veteran's post-service pancreatic cancer to service or an incident or event therein). For these reasons, the Board finds that no reasonable possibility exists that obtaining the identified records would aid in substantiating the appeal; therefore, a remand to obtain the records is not necessary. The Board notes that no medical opinion has been obtained in this case; however, no medical opinion is needed to meet the requirements of 38 U.S.C.A. § 5103A(a) (VA Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim). In this case, the Veteran died of pancreatic cancer. The available service treatment records are absent of any complaints, findings, or treatment for problems involving the pancreas or for pancreatic cancer, and the post-service medical evidence shows that the Veteran's pancreatic cancer manifested many years after service. There is no in-service injury, disease, or event, to which pancreatic cancer could be related. Therefore, any opinion relating the Veteran's pancreatic cancer to service would be of no probative value and could not substantiate the claim for service connection for the cause of the Veteran's death. 38 U.S.C.A. § 5103A(a). There is otherwise sufficient medical evidence to decide the claim, that is, to show the post-service onset of pancreatic cancer and related symptoms years after service. The Board would like to note that the case law does not lower the legal standard for proving a claim for service connection in such circumstances, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The appellant has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required. In view of the foregoing, the Board will proceed with appellate review. Service Connection for the Cause of the Veteran's Death Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). The Board has thoroughly reviewed all the evidence of record in this case. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5 (2012). 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). 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). In order to establish service connection for the cause of 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service Connection for the Cause of the Veteran's Death Analysis In this case, the Veteran died of pancreatic cancer in December 1983. The death certificate identifies no other causes or significant contributory conditions for the Veteran's death. As noted above, service connection was not in effect for any disability at the time of the Veteran's death; therefore, the appellant seeks service connection for the cause of the Veteran's death based on a condition not yet service connected. Specifically, the appellant alleges that the Veteran's pancreatic cancer manifested during active service or during the one-year presumptive period following service separation and, ultimately, caused the Veteran's death. See September 2011 VA Form 9. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The cause of the Veteran's death, pancreatic cancer, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After review of the lay and medical evidence of record, the Board finds that the evidence weighs against finding that the Veteran's pancreatic cancer had its onset during service (including chronic symptoms of pancreatic cancer), had continuous symptoms since service, manifested to a compensable degree within a year of service separation, or is otherwise causally or etiologically related to the period of active service. The available service treatment records are absent of any complaints, findings, or treatment for problems involving the pancreas or pancreatic cancer. On the September 1945 Affidavit for Philippine Army Personnel, the Veteran's wounds and illnesses incurred in service were listed as "none," and the abdominal viscera were clinically evaluated as normal at the September 1945 service physical examination. Thus, the available evidence contemporaneous to service does not show that pancreatic cancer, or chronic symptoms related to the diagnosis, manifested during service. Because the available service medical evidence was generated contemporaneous to service and is likely to reflect accurately the Veteran's physical state during that time, the evidence is of great probative value and weighs against finding that the Veteran had chronic symptoms of pancreatic cancer during service. Also, as noted below, the post-service evidence shows that pancreatic cancer did not manifest until many years after service. The post-service medical evidence showing pancreatic cancer first diagnosed and treated many years after service is evidence against finding that the Veteran had chronic symptoms of pancreatic cancer during service. Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). The Board next finds that the weight of the evidence demonstrates that pancreatic cancer and/or its symptoms have not been continuous since separation from service in March 1949 and that pancreatic cancer did not manifest to a compensable degree within one year of service. The Board notes that, when the Veteran filed a VA claim for disability benefits in July 1976, he made no mention of then having pancreatic cancer or having had symptoms of pancreatic cancer since service. If the Veteran had had pancreatic cancer or symptoms related thereto since service, it is likely that he would have filed a VA claim for disability benefits when filing a claim for other disabilities he believed began during service or were due to service. The fact that the Veteran did not file such a claim (i.e., a claim for pancreatic cancer) is evidence against finding that there were continuous symptoms of pancreatic cancer since service or that pancreatic cancer manifested to a compensable degree within one year of service separation. Also, as stated above, the December 1983 hospital summary reveals that the Veteran was diagnosed with pancreatic cancer in November 1982, approximately 33 years after service separation. This evidence further weighs against finding that a continuity of symptoms of pancreatic cancer has manifested since service or that pancreatic cancer manifested to a compensable degree within one year of service separation; therefore, presumptive service connection for a chronic disease (i.e., pancreatic cancer) is not warranted. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The Board further finds that the weight of the evidence is against finding a relationship between pancreatic cancer and service. The appellant has provided no medical opinion evidence linking the Veteran's pancreatic cancer, which first manifested many years after service, to service and does not allege that any such medical opinion evidence exists. Although the appellant has alleged that the Veteran's pancreatic cancer was causally related to service, she is a lay person and lacks the medical training and expertise needed to render a competent medical diagnosis and medical opinion regarding the relationship between the Veteran's pancreatic cancer and service. The etiology of the Veteran's pancreatic cancer is a complex medical etiological question dealing with the origin and progression of the digestive system, and pancreatic cancer is a disorder diagnosed primarily on clinical findings and physiological testing, as the disease is largely internal and unobservable, and manifests symptoms that overlap with other disorders that would require additional expertise to differentiate. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Thus, while the appellant is competent to relate symptoms of the Veteran's pancreatic cancer for which she had first-hand knowledge, she is not competent to opine on whether there is a link between the pancreatic cancer and active service, because such diagnosis requires specific medical knowledge and training. Regarding the appellant's assertion that the Veteran's pancreatic cancer (and chronic symptoms related thereto) manifested during service, had manifested continuous symptoms since service, or manifested to a compensable degree within the first post-service year, the Board finds that the appellant lacks credibility. As explained above, the available service medical evidence is absent of any complaints, findings, symptoms, diagnosis, or treatment for pancreatic cancer, and the post-service medical evidence shows that the Veteran's pancreatic cancer was first diagnosed more than three decades after service separation. When the Veteran filed a VA claim for disability benefits for other conditions in 1976, he made no mention of pancreatic cancer. There is no medical opinion evidence linking the Veteran's pancreatic cancer to service. This evidence is of greater probative weight than the appellant's unsubstantiated lay assertion because the Veteran was likely to report accurately his physical state during service, to have filed a claim for pancreatic cancer when seeking service connection for other disabilities in 1976, and to have accurately reported his medical history when seeking medical treatment for pancreatic cancer in 1983. Consequently, the appellant's unsubstantiated lay opinion relating the cause of the Veteran's death to active service is afforded no probative value. Thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim of service connection for the cause of the Veteran's death and, consequently, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs