Citation Nr: 1330554 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-22 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for the cause of the Veteran's death, claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968, including service in the Republic of Vietnam. The Veteran died in July 2008; the present Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. During the course of the appeal a number of diseases were added to those presumptively associated with exposure to herbicides. As a result, the RO issued a rating decision in November 2011 that granted service connection for coronary artery disease, but also determined that coronary artery disease was not a contributing factor to the cause of the Veteran's death and continued the denial of the service connection for cause of death. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during a period in which exposure to herbicides is presumed. 2. The Veteran was service-connected for diabetes mellitus and coronary artery disease, both as presumptive to herbicide exposure; he was also service-connected for residuals of shell fragment wound to the left wrist, amputations of the left ring finger, bilateral hearing impairment and tinnitus. 3. The Veteran died in July 2008 of renal cancer. 4. Renal cancer is not a disease that is presumptive to herbicide exposure or otherwise related to the Veteran's active service. 5. Competent and uncontroverted medical opinion of record states that a disease incurred in active service did not cause Veteran's death or contribute substantially or materially to his death. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Because the RO's adjudication of a Dependency Indemnity Compensation (DIC) claim hinges first on whether a veteran was service-connected for any condition during his or her lifetime, the notice in such a claim must include (1) a statement of the conditions, if any, for which the 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 condition previously service-connected, and (3) an explanation of the evidence and information needed to substantiate a DIC claim based on a condition not previously service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In this case, the Appellant was not provided notice complaint with Hupp prior to the rating decision on appeal. However, where there is a timing defect in a case, VA may cure the timing defect through compliance via proper remedial measures, such as the issuance of compliant VCAA notice followed by readjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In this case, the Appellant was provided Hupp-compliant notice by a letter in June 2010, and the RO subsequently readjudicated the appeal in December 2012. Thus, the timing error has been cured. At any rate, the Appellant has not asserted any prejudice in regard to the content or timing of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The RO also provided assistance to the Appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran's service treatment records (STRs) are associated with the file, as are treatment records from those medical providers identified by the Appellant as having potentially relevant records. Also, the file has been reviewed by three different VA physicians who provided medical opinions regarding the degree to which the Veteran's service-connected disability contributed to the cause of the Veteran's death. As explained below, the Board has found the most recent medical opinion to be adequate and sufficient under the criteria set forth in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Appellant was advised of her entitlement to a hearing before the Board, but has not requested such a hearing. She has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced her in the adjudication of this appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duties to notify and assist have been satisfied and will proceed to the merits of the issue on appeal. Applicable Laws and Regulations Service connection for the cause of a veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability is one that was incurred in or aggravated by active service; one that may be presumed to have been incurred or aggravated during such service; or, one that was proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. To establish service connection for the cause of a veteran's death, evidence must show a disability incurred in or aggravated by active service either caused or substantially or materially contributed to the veteran's 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 be a contributing cause, it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. 38 U.S.C.A. § 1310; 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 an unrelated disability. In the same category would be included service-connected diseases 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). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful attention as a contributory cause of death, the primary disease 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. 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 presumed. 38 C.F.R. § 3.312(c)(3). 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 be generally reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive and debilitating nature. 38 C.F.R. § 3.312(c)(4). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran died in July 2008. The death certificate lists cause of death as "renal cell cancer;" no underlying or contributing causes are shown. During the Veteran's lifetime, the RO issued a rating decision in November 2007 that specifically denied service connection for renal cell carcinoma (RCC), to include as due to herbicide exposure. In that decision, the RO reviewed VA medical treatment notes through March 2007 but found nothing therein to indicate that the Veteran's diagnosed stage IV RCC with lung, liver and adrenal metastases was related to service. At the time of his death the Veteran was service-connected for diabetes mellitus, as presumptive to herbicide exposure; he was also service-connected for residuals of shell fragment wound to the left wrist, amputations of the left ring finger, bilateral hearing impairment and tinnitus. During the course of the present appeal the Veteran was service-connected for coronary artery disease, also as presumptive to herbicide exposure. In her Substantive Appeal, received in May 2010, the Appellant expressed her personal belief that the Veteran's death was due directly to Agent Orange exposure or secondarily to heart disability. As a threshold matter, the Secretary of Veterans Affairs has determined that there is no presumptive positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41, 442-449 and 61 Fed. Reg. 57, 586-89 (1996); Notice, 64 Fed. Reg. 59, 232-243 (Nov. 2, 1999). In September 2011, the National Academy of Science issued Veterans and Agent Orange: Update 2010, which stated that presumption is specifically not warranted for renal cancer (kidney and renal pelvis). Accordingly, presumptive service connection for RCC is not applicable. See 38 C.F.R. § 3.309(a), (d), and (e). Notwithstanding the presumption, a claimant can establish service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). However, there is no medical evidence of record that establishes the Veteran's RCC was directly related to his exposure to Agent Orange. In January 2010 the file was reviewed by a VA physician, who stated an opinion that the Veteran's service-connected diabetes mellitus did not likely cause or contribute to the Veteran's death. As rationale, the physician stated there is no medical evidence suggesting the Veteran's diabetes contributed substantially or materially to the Veteran's death or to the type of kidney disease (RCC) that caused his death. The physician stated he had reviewed medical literature current to 2010, and that a number of environmental and clinical factors had been implicated in the etiology of RCC; these included smoking, occupational exposure to toxic compounds, obesity, acquired cystic disease of the kidney (typically associated with dialysis), analgesic abuse nephropathy and genetic predisposition. In November 2011 the Veteran was granted service connection for coronary artery disease (CAD). Consequently, the file was submitted to a VA physician to review to determine whether the newly service-connected CAD had caused or contributed to cause the Veteran's death. In a December 2012 opinion, a VA physician stated that CAD is not a risk factor in developing RCC and therefore did not contribute to the Veteran's death. In March 2013 the Board determined that the record did not show whether the Veteran's service-connected disabilities, individually or in aggregate, in conjunction with the nonservice-connected RCC, caused, hastened or contributed to the Veteran's death; or, alternatively, whether the Veteran's service-connected disabilities restricted, aggravated or prevented the kind of treatment that could have been provided for the nonservice-connected RCC, thus hastening or contributing to the Veteran's death. Accordingly, the Board submitted these questions to the Veterans Health Administration (VHA) for response by a medical expert. In May 2013 a VHA medical expert responded to the Board's questions as cited above. The VHA reviewer cited credentials as a university-based practice focused on the treatment of urologic malignancies, including RCC. The VHA reviewer noted the history of the Veteran's RCC in detail. Based on the development of RCC in the Veteran's case, and based also on a multicenter study for survival rates in RCC, the Veteran's disease had proceeded along the expected natural history of the disease. According, in the VHA reviewer's opinion, it is not likely that the Veteran's service-connected disabilities in conjunction with RCC hastened his death. The VHA reviewer also noted the Veteran's treatment history and noted the Veteran had received standard care for first-line therapy; there were no restrictions in initiation of therapy due to underlying service-connected disabilities. The Veteran's underlying CAD did lead his physicians to perform an echocardiogram prior to prescribing therapy, but the results of the study demonstrated adequate cardiac function and he was cleared to initiate therapy with sunitinib at the standard dosing and schedule. There was some treatment delay due to neutropenia, which is a common side effect of sunitinib therapy and was not aggravated by his underlying medical disorders. There is no documentation that the Veteran was limited in his tolerance of the prescribed therapy (sunitinib) based on his service-connected disorders; accordingly, it is unlikely that the Veteran's service-connected disabilities restricted, aggravated or prevented the type of treatment that could be provided in the first-line setting for RCC. It could not be concluded, however, whether underlying service-connected disabilities prevented the type of treatment that could have been provided in the second-line setting for RCC. (In that regard, the VHA reviewer noted the Veteran's treatment records dated in November 2007 showed the Veteran to be responsive to the sunitinib and would be continued on that therapy, but no further treatment records were available that documented the subsequent course of the disease progression or any second-line therapy that might have been recommended.) With her opinion, the VHA reviewer enclosed treatises entitled Overall Survival and Updated Results for Sunitinib Compared with Interferon Alfa in Patients with Metastatic Renal Cell Carcinoma (Journal of Clinical Oncology, August 2009) and External Validation and Comparison with Other Models of the International Metastatic Renal-Cell Carcinoma Database Consortium Prognostic Model: a Population-Based Study (The Lancet, January 2013). These were the treatise articles she had cited in her report as being relevant to the specific situation of the Veteran's RCC. The Board notes that a medical article or treatise can provide important support when combined with an opinion of a medical professional such that, under the facts of a specific case, there is at least a plausible causality based upon subjective facts. Mattern v. West, 12 Vet. App. 222, 228 (1999). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board finds that all three criteria for probative value articulated in Nieves-Rodriguez are demonstrated by the May 2013 VHA medical expert opinion, and that the opinion is accordingly probative. Further, the May 2013 VHA opinion is consistent with the earlier review opinions in January 2010 and December 2012; there is no competent contradicting medical opinion of record. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). The only opinion showing a relationship between the Veteran's service, to include exposure in service to herbicides and the Veteran's various service-connected disabilities, is the lay opinion of the Appellant. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). However, the Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). In this case, the Appellant's lay evidence is offered to show the etiology of the Veteran's RCC, which is a complex medical question not within the competence of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). As the competent and uncontroverted medical opinion of record shows the Veteran's service-connected disabilities did not cause Veteran's death or contribute substantially or materially to his death, the Board finds the criteria for service connection for cause of the Veteran's death are not met and the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 55-56. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ M.G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs