Citation Nr: 1326985 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-23 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1942 to February 1945. He died in January 2000. The appellant is his widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which found that new and material evidence had not been received to reopen the claim for service connection for the cause of the Veteran's death. The appellant provided testimony at a hearing before the undersigned at the RO in September 2012. A transcript is of record. In February 2013, the Board reopened the claim and remanded it for additional development. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran'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. Please note 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. The Veteran died in January 2000 due to acute myocardial infarction and B cell lymphoma of the brain and spine. 2. At the time of the Veteran's death, service connection was in effect for encephalopathy, post-traumatic skull defect, mid-frontal parietal region, due to shell fragment wound and operation with tantalium plate, evaluated as 50 percent disabling; residuals of the shell fragment wound to the left lower forearm and wrist, muscle group VII, evaluated as 10 percent disabling; and scar, healed, right shoulder, evaluated as noncompensable. 3. Acute myocardial infarction and B cell lymphoma of the brain and spine were first demonstrated long after service and are not etiologically related to a disease or injury in service or a service-connected disability. 4. The Veteran's service-connected disabilities were not a principal or contributory cause of death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1110, 1116, 1310, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for DIC benefits, which includes a claim of service connection for the cause of the 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 non-detailed 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). A May 2008 VCAA letter and a May 2011 statement of the case included information regarding elements 2 and 3 of Hupp notice, but did not explicitly tell the appellant what the Veteran was service connected for at the time of his death. However, the appellant specifically asserted throughout the appeal, including during the Board hearing, that the Veteran's death from myocardial infarction and B cell lymphoma was caused by or linked to his service-connected brain injuries. Therefore, the appellant demonstrated actual knowledge of the Veteran's service-connected disability. To the extent that the Veteran was not provided with pre-adjudication notice of some of the information required by the VCAA, prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Appellants must generally identify "with considerable specificity" (1) how the VCAA notice was defective and (2) how the lack of notice and evidence was prejudicial or affected the essential fairness of the adjudication. Id.; see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). No such allegation or showing of prejudice has been made here. The appellant has substantiated the Veteran's status as a veteran. Although information regarding the effective date and rating elements of a claim has not been provided, as the appeal is being denied and no rating or effective date is being assigned, the appellant is not prejudiced. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the appellant, including service treatment records, records from various federal agencies, and private medical records. In a cause of death claim, VA has a duty to obtain a medical opinion if such is needed to assist the appellant in substantiating the claim. DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). A medical opinion was obtained in May 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the May 2013 VA opinion obtained is adequate, as it was predicated on a full reading of the service treatment records as well as the private medical records contained in the claims file and the examiner provided a complete rationale for the opinions stated. The examiner relied on the complete record, including the appellant's reports, as well as medical literature and other medical opinions. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion has been met. 38 C.F.R. § 3.159(c)(4). During the September 2012 Board hearing and prehearing conference, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the issues on appeal. These actions provided an opportunity for the appellant and her representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The issue on appeal was previously before the Board in February 2013, when it was remanded for additional development. In accordance with the remand instructions, the May 2013 VA opinion was obtained and an SSOC was issued in June 2013. Since the record reflects compliance with the February 2013 remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Service Connection for the Cause of the Veteran's Death Dependency and indemnity compensation (DIC) may be awarded to a surviving spouse upon the service-connected death of the veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a) (2012). To establish service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of 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 thereto. 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. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing 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). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay 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 the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran died on January [redacted], 2000 at the age of 81 years. According to his death certificate, his death was caused by acute myocardial infarction which was due to or as a consequence of B cell lymphoma of the brain and spine. The autopsy revealed several conditions, including severe occlusion of the coronary arteries due to atherosclerosis and severe bilateral acute tubular necrosis of the kidneys superimposed on sepsis from multiple decubitus ulcers. The appellant does not contend, and the record does not show, that the causes of the Veteran's death were directly incurred in service or were present to a compensable degree within one year of service. See 38 U.S.C.A. § 1112(a) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012) (providing presumptive service connection for cardiovascular-renal diseases present to a compensable degree within one year of service). Rather, the appellant contends that the Veteran's death was caused or hastened by his service-connected disabilities, namely his head injuries. At the time of the Veteran's death, service connection was in effect for encephalopathy, post-traumatic skull defect, mid-frontal parietal region, due to shell fragment wound and operation with tantalium plate, evaluated as 50 percent disabling; residuals of the shell fragment wound to the left lower forearm and wrist, muscle group VII, evaluated as 10 percent disabling; and scar, healed, right shoulder, evaluated as noncompensable. In December 2004, a nurse practitioner concluded that the Veteran's service-connected head injury was not related to his death. However, a rationale was not provided. In a June 2009 private, a physician practicing in internal medicine and neurology explained that while the major causative factors of the brain tumors the Veteran developed (including the B cell lymphoma) were probably genetic, inflammation from the in-service head injury and craniectomy was also a significant causative factor in the formation of both types of brain tumors. The physician stated that the tumors required radiation treatment, which in turn was a partial cause of the sepsis and the myocardial infarction that led to the Veteran's death. The physician concluded that the Veteran's death was due to a large number of factors, of which the initial head injury was not the major factor. However, the probability that the initial service-connected head injury had a causative role in the production of the lymphoma exceeded 90 percent, and exceeded 70 percent that it had a causative role in the ultimate death. In May 2011, a brief VA opinion was obtained, where a physician concluded that it was mere speculation to state that the brain radiation caused an inflammatory response in the coronaries resulting in a myocardial infarction and death. No additional information regarding a rationale or the physician's specialty was provided. Based on the forgoing, the Board found in its February 2013 remand that a VA opinion from an oncologist was required. In February 2013, a negative VA opinion was provided by a nurse practitioner. In May 2013, a VA oncologist reviewed the claims file, including the medical history involving the B cell lymphoma, service treatment records, the terminal records and autopsy report, and the VA and private medical opinions of record. Regarding the incurrence of lymphoma, the examiner described the type of lymphoma the Veteran had as well as some known causes and explained that the Veteran had no known apparent risk factor of brain lymphoma. The examiner stated that trauma or a head injury was not known to cause that form of lymphoma and that a metal plate in the skull was unlikely to have had any causative role as well. Regarding the treatment the Veteran received for lymphoma, the examiner stated that he was given a curative dose of radiation and corticosteroids, which had completely eradicated the lymphoma at the time of his death. The examiner stated that the autopsy definitely demonstrated that the Veteran died of acute myocardial infarction, not due to lymphoma of the brain. Based upon a review of the medical records and objective clinical data, the examiner concluded that there was no evidence that any of the service-connected disabilities, such as the loss of parts of the skull, trauma to the brain, or metal plate over his skull had caused malignant lymphoma of the brain. Moreover, the claims file demonstrated that the Veteran died of an acute myocardial infarction and the examiner stated that he was unable to connect any of the service-connected disabilities to that cause of death. It was added that service-connected disability did not contribute to the Veteran's death. The oncologist cited to several medical treatises. The Board notes that this case essentially comes down to the question of whether the Veteran's in-service brain injuries and service-connected residuals caused or contributed significantly or materially to the Veteran's death. The only evidence supporting such a connection is the June 2009 private opinion, where the physician asserted that the service-connected brain disabilities caused inflammation, which was a significant causative factor in the incurrence of brain lymphoma. Subsequently, the treatment for brain lymphoma led to the myocardial infarction, which caused the Veteran's death. Alternatively, the May 2013 VA opinion stated that brain trauma and the service-connected disabilities were not known causes of lymphoma, that the Veteran died of myocardial infarction, not lymphoma, and that there was no evidence of a connection between the service-connected disabilities and the myocardial infarction. The Board finds that the May 2013 VA opinion is more probative than the June 2009 private opinion. The VA examiner thoroughly reviewed the entire claims file, cited to the relevant medical literature, and discussed all potential causes of the Veteran's lymphoma. The VA examiner also reviewed the medical opinions of record, including the private opinion, and stated that head trauma was in fact not a known cause of the lymphoma. He added that the lymphoma was successfully eradicated and not a factor in the Veteran's death. The VA examiner's opinion is given more weight as he is an attending oncologist hematologist and would have expertise in the etiology of lymphoma (blood cancer). The private opinion by a specialist in internal medicine and neurology is afforded less probative value. There is no other competent or credible evidence supporting a link between the Veteran's service-connected disabilities and his death. Therefore, the Board concludes that the evidence does not demonstrate that the Veteran's service-connected disabilities caused or contributed to his death, or that the causes of death were otherwise related to service or a service-connected disease or disability. As such, the weight of the evidence is against a finding of service connection for the cause of the Veteran's death, and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs