Citation Nr: 1330968 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-13 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee 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 N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to September 1969. He died in November 2008. The appellant claims as his widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appellant was scheduled for a hearing before a member of the Board in September 2011. She failed to appear at the hearing, did not request postponement, and has not shown good cause for failure to appear. Hence, the case is processed as if the request for a hearing had been withdrawn. See 38 C.F.R. § 20.702(d)(2013). The Board has not only viewed the physical claims file, but also the file on the Virtual VA and VBMS system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam War and is presumed to have been exposed to Agent Orange. 2. The Veteran died in November 2008. The death certificate lists the immediate cause of death as metastatic malignant melanoma due to metastasis to the left lower sentinel node 2003 with metastasis to the brain. 3. At the time of his death, the Veteran had no service-connected disabilities. Malignant melanoma is not recognized by VA as causally related to herbicide exposure in Vietnam. 4. The disorders ultimately resulting in the Veteran's death were unrelated to service and not shown to have manifested to a compensable degree within a year of his separation from service. 5. The Veteran's death was not due to an Agent Orange presumptive disease nor was it directly related to service. CONCLUSION OF LAW A disability incurred or aggravated in service, a disability that may be presumed to have been incurred in service, or a disability that is otherwise related to service did not cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases, including malignancies, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). To establish service connection for the cause of a veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A 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 a 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 causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause 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. 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 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). Also relevant to this claim, veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to an herbicide agent, such as Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases have been associated with exposure to herbicide agents and will be presumed by VA to have been incurred in service even though there is no evidence of such disease during such period of service, including, among others, multiple myeloma, non-Hodgkin's lymphoma, prostate cancer, respiratory cancers (i.e., cancers of the lung, bronchus, larynx, or trachea), or soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 (1994). In September 2011, the National Academy of Science (NAS) issued Veterans and Agent Orange: Update 2010 (Update 2010). The notice determined that service connection based on exposure to herbicides in the Republic of Vietnam was not warranted for, among other things, the following: melanoma and non-melanoma skin cancer (basal cell and squamous cell). 77 Fed. Reg. 47924 (Aug. 10, 2012). In addition to the presumptive criteria, the appellant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran died in November 2008. His death certificate lists the immediate cause of death as metastatic malignant melanoma due to metastasis to the left lower sentinel node 2003 with metastasis to the brain. At the time of his death, he had no service-connected any disabilities. The appellant asserts that his death was due to Agent Orange exposure. She maintains that he had lung cancer that spread to his brain which caused his death. While the appellant, as a lay person, is competent to report what comes to her through her sense, she is not competent to provide a complex medical opinion, such as what caused the Veteran's death. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, her opinion alone is insufficient to establish that exposure to herbicides played a role in his death. Here, the Veteran had service in Vietnam and is presumed to have been exposed to herbicides; however, malignant melanoma is not among the diseases that are presumptively related to herbicide. See 38 C.F.R. § 3.307(a), 3.309(e). While a number of cancers have been epidemiologically linked to herbicide exposure, malignant melanoma is not one of them. In fact, melanoma is one of the disorders specifically excluded from the list. As such, the Veteran's malignant melanoma cannot be presumptively linked to his in-service exposures. Therefore, service connection on a presumptive basis is denied. Next, the Board has considered whether the cancer that caused the Veteran's death was, in fact, related to service or Agent Orange exposure on a direct basis. There is no competent medical opinion indicating a nexus relationship between the Veteran's cancer and service or Agent Orange exposure. There is nothing to suggest a link to service other than the appellant's lay assertions, which are not competent evidence regarding a complex medical question such as the etiology of a specific kind of cancer. Moreover, service treatment records reflect no complaints of, treatment for, or diagnosis of carcinoma of any kind, or any symptoms reasonably attributed to carcinoma; nor has the appellant so maintained. In addition, she does not argue that symptoms consistent with carcinoma were continuous from service and the record does not support that they were. The evidence is clear that the first medical documentation of a metastatic mass was in 2003, more than three decades after discharge. Therefore, direct service connection is not warranted. Further, because the cause of death, namely malignant melanoma, is not shown to have existed in the first year post-service (he was not diagnosed for 30+ years after discharge), presumptive service connection under 38 C.F.R. § 3.309(a) is not warranted, and service connection for the cause of the Veteran's death on a one-year presumptive basis is denied. Next, the Board will address the appellant's contention that the Veteran died of lung cancer, which spread to his brain. After a careful review of the file, the evidence of record does not support her assertion. Specifically, in November 2007, he underwent surgery to "[r]ule out metastatic melanoma versus primary lung cancer." The final diagnosis listed on the pathology report was metastatic melanoma. Although the pre-surgery report raised a possibility of primary lung cancer, the pathology report clearly ruled-in metastatic melanoma, not primary lung cancer. Subsequent treatment records reference only metastatic melanoma; primary lung cancer was never again discussed. Therefore, the Veteran was not found to have primary lung cancer. Further, the evidence of record also includes an August 2008 letter from a private physician, Dr. D.H.. He indicated that the Veteran was being treated for metastatic melanoma, and "developed brain metastases (multiple) that have been resistant to treatment." Therefore, Dr. D.H.'s findings indicate that the Veteran's malignant melanoma caused brain metastases; there is no indication that lung cancer caused brain cancer, as asserted by the appellant. The Board concludes that there is no basis to establish a link between the Veteran's fatal malignant melanoma and service, to include Agent Orange exposure. Accordingly, the preponderance of the evidence is against the claim; the benefit of the doubt provision does not apply and the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim 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) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the context of a claim for DIC benefits, § 5103(a) notice must 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. Here, the appellant received a letter in January 2009, which informed her of the duties she had and VA's duties for obtaining evidence. The letter also told her that to substantiate the claim there must be medical evidence showing that a service-connected condition caused or contributed to the Veteran's death, that is, that he died from a service-connected injury or disease. The letter did not inform the appellant that the Veteran was not service-connected for any disability at the of his death. However, to the extent that the notice is not fully compliant with Hupp, under the circumstances of this case, any such error does not require a remand because the error did not affect the essential fairness of the adjudication. Specifically, the record reflects that any defect was cured by the actual knowledge of the appellant as statements she and her representative made reflect that she understood all of the elements to establish service connection for the cause of the Veteran's death. The August 2009 NOD and the July 2011 and September 2013 briefs specifically argue that the Veteran died as a result of in-service herbicide exposure, which would therefore entitle her to benefits. As such, the record reflects that she had actual knowledge of the information and evidence needed to substantiate the claim for service connection for the cause of his death. The letter also did not inform the appellant how disability ratings and effective dates are established; but in light of the denial of her claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, VA's duty to notify has been satisfied. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes providing a medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); and 38 C.F.R. § 3.159(c)(4). In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the Federal Circuit Court held that 38 U.S.C. § 5103A(a) does not always require VA to assist the claimant in obtaining a medical opinion for a DIC claim, but that it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim. The Federal Circuit Court added that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) since this provision is explicitly limited to claims for disability compensation (service connection), which is defined as a monthly payment made by VA to a Veteran, and therefore does not pertain to a DIC claim. Id. Subsequently, in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the Federal Circuit held that in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination (or, here, obtain an opinion since the Veteran is deceased) when no reasonable possibility exists that such assistance would aid in substantiating the claim. In this case, obtaining an opinion is not warranted under 38 U.S.C.A. § 5103A(d) because there is no competent evidence that the cause of the Veteran's death was related to service and there is other sufficient medical evidence of record to make a decision. Moreover, there is no reasonable possibility that obtaining an opinion would aid in substantiating the claim as the Veteran's immediate cause of death was attributed to malignant melanoma, which is not one of the cancers presumptively associated with Agent Orange exposure. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In connection with the current appeal, the evidence of record includes the Veteran's service treatment records, statements in support of the claim by the appellant and her representative, and private medical records. The appellant has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the appellant is required for fair adjudication of the this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs