Citation Nr: 1331050 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 07-29 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to service connection for esophageal cancer, for purposes of accrued benefits. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from February 1970 to August 1973. He died in February 2006. The appellant is his widow. She appealed to the Board of Veterans' Appeals (Board) from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board and was remanded in April 2011 to provide the appellant an SOC addressing her derivative accrued benefits claim for service connection for esophageal cancer and to accomplish additional development. The appellant subsequently perfected her appeal as to the accrued benefits claim and requested a Travel Board hearing. Such a hearing was conducted before the undersigned member of the Board in October 2012. In March 2013, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam era, and is presumed to have been exposed to Agent Orange. 2. The Veteran died in February 2006; esophageal cancer was the immediate cause of death and lung cancer, liver cancer and rectal cancer are listed as underlying causes. 3. The Veteran had not established service-connection for any disability. 4. At the time of the Veteran's death, a claim for service connection for esophageal cancer was pending and the appellant filed an accrued benefits claim within one year of the Veteran's death. 5. The Veteran's death-causing esophageal cancer, lung cancer, liver cancer and rectal cancer were not manifested in service or in the first year following his discharge from active duty, and are not shown to have been related to his service, to include as due to Agent Orange exposure therein; it is not shown that a service connected disability caused or contributed to cause his death. CONCLUSIONS OF LAW 1. Esophageal cancer was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred, to include as due to Agent Orange exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. A disability incurred in or aggravated by 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. §§ 1110, 1112, 1113, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the context of a claim of service connection for cause of death, VCAA 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). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). An April 2006 letter, prior to the September 2006 rating decision, provided the required notice for accrued benefits claims, service connection claims, and the Appellant's cause of death claim. There is no prejudice to the Appellant in proceeding to adjudication of this claim because the appellant's claims were readjudicated in the August 2007 and April 2012 statements of the case and June 2012 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Accordingly, VA's duty to notify has been satisfied. The Veteran's service treatment records (STRs) are associated with his claims file, and pertinent postservice treatment records have been secured. The appellant has provided statements from a private oncologist. A VA medical opinion was secured in August 2011. As was noted above, the Board also secured a VHA medical advisory opinion in this matter. As will be discussed in greater detail below, the VHA opinion is adequate for rating purposes; it reflects familiarity with the entire record and includes a detailed explanation of rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The appellant was advised of the opinions, and had opportunity to respond. The appellant has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The basis of the appellant's claims, whether for accrued benefits or cause of death, is that the Veteran's cancers were the result of his exposure to toxic herbicides - namely, the dioxin in Agent Orange, while stationed in Vietnam. See October 2012 Travel Board hearing transcript. Accrued Benefits Upon the death of a beneficiary who is entitled to receive periodic monthly benefits, certain survivors, including the Veteran's spouse, may be entitled to accrued benefits to which the Veteran was entitled at death. The accrued benefits are those payable to a beneficiary under existing ratings or decisions or those based on evidence in the file at the date of death. The appropriate survivor may receive accrued benefits that are due and unpaid for a period not to exceed two years prior to the last date on which the beneficiary was entitled to receive benefits. 38 U.S.C.A. § 5121(a) (West 2002). See also 38 C.F.R. § 3.1000(a). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). In order for a claimant to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). The Federal Circuit specified that a claim must have been filed on or behalf of the Veteran prior to his death in the specific form prescribed by the Secretary in accordance with 38 U.S.C.A. § 5101(a). Jones, 136 F.3d at 1299. Further, a "claim for VA benefits pending on the date of death" means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5); Jones, 136 F.3d at 1299. Although a Veteran's claim terminates with that Veteran's death, a qualified survivor may carry on, to a limited extent, the deceased Veteran's claim by submitting a timely claim for accrued benefits. See 38 U.S.C.A. § 5121; Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Thus, while the claim for accrued benefits filed by his spouse is separate from the claim for service connection filed by the Veteran prior to his death, the accrued benefits claim is derivative of the Veteran's claim and his spouse takes the Veteran's claim as it stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Malignant tumors may be service connected on a presumptive basis as chronic disease if such become manifest to a compensable degree in the first year following a veteran's discharge from active duty. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, such as the dioxin in Agent Orange, unless there is affirmative evidence establishing that he or she was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including lung cancer, shall be service connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the National Academy of Sciences (NAS), has determined that no relationship between herbicide agent exposure and 25 other diseases, including esophageal, liver and rectal cancers. See 64 Fed. Reg. 59232-59243 (1999). The United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). However, lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also mean statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative 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); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran had recognized military service from February 1970 to August 1973, including a tour in Vietnam. In January 2005, the Veteran was newly diagnosed as having squamous cell carcinoma in the esophagous and adenocarcinoma in the rectum. A March 2005 PET (positron emission tomography) scan showed evidence of metastatic disease, including liver and lung cancer. He died in February 2006. A March 2005 opinion from J. W. Ralph, M.D., who had been asked to review the Veteran's case, states that swallowing Agent Orange particles in saliva and mucous secretions is the most likely cause of the variety of non-respiratory illnesses included in 38 C.F.R. § 3.309(e). Therefore, Dr. Ralph further concluded that it is reasonable that the Veteran's esophageal cancer is the result of Agent Orange exposure in Vietnam. Notably, in August 2011, Dr. Ralph was asked to clarify his opinion that esophageal cancer is caused by exposure to Agent Orange and explain why his opinion differs from the findings of the National Academy of Sciences (NAS). In October 2011, he responded that he had never seen the Veteran. An August 2011 medical advisory opinion states that the Veteran's cancers are less likely as not related or attributable to his military service, including his presumed exposure to Agent Orange in Vietnam, because there is currently no objective evidence that esophageal and rectal cancers have a cause and effect relationship to Agent Orange. The examiner noted that esophageal and rectal cancer are not presumptive Agent Orange conditions and no other factor regarding the Veteran's military service, including service in Vietnam, to which his cancers are attributable were found. [Notably, an October 2005 VA opinion (administrative note) also concludes that there is no evidence to suggest that the Veteran's esophageal cancer and rectal cancer are due to herbicide exposure. However, as noted in the August 2011 medical advisory opinion, this opinion is based on a review of another Veteran's records (showing a prior history of carcinoma of the base of the tongue and floor of the mouth and carcinoma of the larynx) and; thus, is based on an inaccurate medical history and is of no probative value.] The May 2013 VHA opinion was prepared by O. Platica, M.D., an attending physician in the Hematology Oncology Section of the New York Harbor Healthcare System and an Associate Professor of Medicine at SUNY, Downstate Medical Center. Dr. Platica reviewed the Veteran's medical record and the recent medical literature on epidemiology of esophageal and rectal cancers and found that (1) there is no recent study to support a correlation between the exposure to herbicides including Agent Orange and the risk for cancer of the esophagus and rectum, (2) based on the Veteran's computed tomography (CT) scans from May 4, 2005 and August 9, 2005, the lesions the Veteran had in the lungs and liver at the time of his death were most likely (more than 50 percent probability) metastases from his rectal and possible esophageal carcinomas and not new primary tumors as listed in his death certificate and (3) there is a 50 percent or better probability that the tumors which caused the Veteran's death (esophageal and rectal carcinomas) are not related to his exposure to Agent Orange during his service in Vietnam. The record shows that the Veteran served in Vietnam during the Vietnam era, and he is presumed to have been exposed to Agent Orange therein. It is also not in dispute that he had malignant tumors in his esophagus, lungs, liver and rectum at the time of his death. The STRs do not show a diagnosis of cancer. The postservice medical evidence does not show a diagnosis of cancer until 2005, nearly 32 years after separation from service. Such a lengthy time interval between service and the earliest postservice clinical documentation of the disability is of itself a factor for consideration against a finding that the Veteran's esophageal, lung, liver and rectal cancers were related to his service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The appellant does not allege that the Veteran's cancers were manifested in service or within one year of service. As the preponderance of the evidence is against a finding that cancer was manifest in service or within one year of service, service connection for such disease on the basis that it became manifest in service or that it was a chronic disease presumptively manifest in service under 38 U.S.C.A. § 1112 is not warranted. The appellant's theory of entitlement to the benefit sought is that the Veteran's death-causing cancers were should be service connected on a direct or presumptive basis due to exposure to herbicides in Vietnam. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Review of the record shows conflicting medical opinions. While Dr. Ralph's opinion is conclusory and phrased in speculative terms (it is reasonable that the Veteran's esophageal is the result of Agent Orange exposure in Vietnam), the VHA medical expert opinion (that there is no support for a correlation between the exposure to herbicides including Agent Orange and the risk for cancer of the esophagus and rectum in the medical literature and the lung and liver cancer were most likely metastases from his rectal and possible esophageal carcinomas and not new primary tumors) is based on a review of the record and medical literature and provides an explanation of rationale. Thus, the Board finds the VHA expert's opinion to be the most probative evidence of record regarding the relationship between the Veteran's presumed exposure to Agent Orange and his esophageal, lung, liver and rectal cancers. The opinion is fully articulated with clear conclusions based on an accurate factual foundation and supported by sound reasoning. Accordingly, it is highly probative and outweighs the speculative opinion provided by Dr. Ralph. See Nieves-Rodriguez, 22 Vet. App. 295, 303-304 (2008). While the appellant may be competent to testify as to symptoms the Veteran experienced, she is not competent to opine as to whether his cancers were related to his military service in Vietnam, including exposure to Agent Orange therein. The etiology of caner is a medical question beyond the capability of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1374 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for esophageal cancer, lung cancer, liver cancer, and rectal cancer for purposes of accrued benefits, so there is no reasonable doubt to resolve in the appellant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Cause of Death When it is determined that a Veteran's death is service connected, with service connection determined according to the standards applicable to disability compensation, his surviving spouse is generally entitled to dependency and indemnity compensation (DIC). 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a); see generally 38 U.S.C.A. Chapte r 11. Generally, a Veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 101(16), 1110; 38 U.S.C.A. §§ 3.1(k), 3.303. To establish service connection for the cause of the Veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided or lent assistance to producing death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). In short, the appellant is entitled to DIC benefits if the principal or contributory cause of the Veteran's death was (1) an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran's death; or (2) a previously nonservice-connected disability that was in fact incurred or aggravated by service. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312. As noted above, the Veteran died in February 2006; esophageal cancer was the immediate cause of death and lung cancer, liver cancer and rectal cancer are listed as underlying causes. At the time of the Veteran's death, service connection was not in effect for any disabilities. The basis of the appellant's claims is that the Veteran's death causing cancers were the result of his exposure to Agent Orange while serving in Vietnam. As discussed above, although there are opinions both in support of and against the appellant's claims, the VHA opinion against a finding that the Veteran's death causing cancers were the result of his exposure to Agent Orange while serving in Vietnam outweighs the speculative opinion provided by Dr. Ralph. See Nieves-Rodriguez, 22 Vet. App. 295, 303-304 (2008). Accordingly, the Board finds that the preponderance of the evidence is against service connection for the cause of the Veteran's death, so there is no reasonable doubt to resolve in the appellant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection, an on accrued benefits basis, for esophageal cancer is denied. Service connection for the cause of death is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs