Citation Nr: 1333921 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-24 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from October 1949 to May 1952 and from April 1955 to September 1972. He died in January 2008. The Appellant in this case is the Veteran's widow. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2008 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. The Veteran died in January 2008. The death certificate lists the immediate cause of death as myelodysplasia. No underlying causes of death were listed. 2. At the time of the Veteran's death, service connection was in effect for postoperative residuals of a herniated disc, lumbosacral spine, rated as 20 percent disabling since July 1, 1981; hiatal hernia with esophageal reflux and duodenal ulcer, rated as 10 percent disabling since July 1, 1981; neuropathy, left ulnar nerve, mild, rated as 10 percent disabling since July 1, 1981; residuals, right knee injury, rated as 10 percent disabling since July 16, 1986; retained foreign bodies with scar, right thigh, rated as 10 percent disabling since July 1, 1981; residuals, vitreous hemorrhage, right eye, rated as 10 percent disabling since July 1, 1981; lipoma, chest wall, rated as noncompensably disabling since July 1, 1981; defective hearing, rated as noncompensably disabling since July 1, 1981; fracture, left wrist, rated as noncompensably disabling since July 1, 1981; and fracture, right zygoma, rated as noncompensably disabling since July 1, 1981. 3. The objective and competent medical evidence of record preponderates against a finding that a disorder incurred in service, to include myelodysplasia, or that a service-connected disability caused or contributed materially to producing or accelerating the Veteran's death. 4. At the time of his death, the Veteran did not have a claim pending for VA benefits and there were no due and unpaid periodic monetary benefits to which he was entitled to receive on the basis of evidence in the file. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 1310 (West 2002); 38 C.F.R. §§ 3.300, 3.303, 3.304, 3.307, 3.309, 3.312 (2013). 2. The Appellant is not entitled to accrued benefits. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.160, 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Appellant. 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Appellant and his or her representative, if any, of any information and 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Appellant 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 Appellant is expected to provide; and, (4) request that the Appellant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Appellant provide any evidence in his or her possession that pertains to the claim was eliminated by the VA Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in March 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Appellant was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claim. The letter informed her that additional information or evidence was needed to support her claim, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Appellant how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter was sent prior to the initial RO adjudication of this claim in August 2008. In addition, specifically in the context of a claim for cause of death benefits under 38 U.S.C.A. § 1310, the Court held that section 5103(a) notice must include: (1) a statement of the disabilities, 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 disability; and, (3) an explanation of the evidence and information required to substantiate a DIC claim based on a disorder not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Court also held that a 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. Id. An additional letter dated in May 2009 informed the Appellant as to the disabilities for which the Veteran was service-connected at the time of his death, and of what information and evidence was needed to support a claim for DIC. As such, the Board concludes that the letter provided the information to the Appellant prescribed in Hupp. 21 Vet. App. at 342. The Board notes that the May 2009 letter was not sent prior to the initial RO adjudication of the Appellant's claim. However, after she was provided the letter, the claim was then readjudicated in the June 2009 Statement of the Case (SOC) based on any additional evidence received in response to that additional notice. This is important to point out because if there was no VCAA notice provided prior to the initial adjudication of the claim, or for whatever reason the notice provided was inadequate or incomplete, this timing error may be effectively "cured" by providing any necessary notice and then going back and readjudicating the claim, including in a SOC, such that the intended purpose of the notice is not frustrated and the Appellant is given ample opportunity to participate effectively in the adjudication of her claim. In other words, this timing error in the provision of the notice is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Appellant over the course of this appeal, the Appellant clearly has actual knowledge of the evidence she was required to submit in this case; and, (2) based on the Appellant's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Appellant understood what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Appellant was continuously represented by an experienced national service organization throughout her appeal. She has submitted arguments in support of her claim. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Appellant has actual knowledge as to the information and evidence necessary for her to prevail on her claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Appellant. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Appellant are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and post-service military treatment center records are in the file. Private medical records identified by the Appellant have been obtained, to the extent possible. The Appellant has at no time otherwise referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The claims file also does not present evidence that the Veteran was receiving disability benefits from the Social Security Administration (SSA) prior to his death. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. A VA medical opinion has not been obtained in this case. See 38 U.S.C.A. § 5103A(a). A VA medical examination is not required as a matter of course in virtually every case involving a nexus issue. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the Appellant, in which case an examination may not be required); see also DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (providing that 38 U.S.C.A. § 5103A(a) does not always require VA to assist the claimant in obtaining a medical opinion or examination. Rather, under 38 U.S.C.A. § 5103(A)(a), VA only needs to make reasonable efforts to assist a claimant in obtaining a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit."). As discussed below, the claims file contains the Appellant's general lay assertions that there is nexus between the Veteran's death and exposure to chemicals. However, the applicable regulations do not provide for a presumption that the disease which caused the Veteran's death (myelodysplasia) is caused by exposure to herbicides (see 38 C.F.R. § 3.309(e)), and none of the medical treatment providers of record have suggested even a possible connection between the Veteran's myelodysplasia and his active duty service. The claims file also provides no evidence in support of the argument that any of the Veteran's service-connected disorders caused his death, and the Appellant does not argue as such. Thus, the Board does not find it necessary to obtain a medical opinion. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection for the Cause of the Veteran's Death Service connection may be granted for a disorder resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disorder; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disorder and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for certain chronic diseases, including leukemia, will be presumed if they manifest to a compensable degree within one year following the active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). In cases of service connection for the cause of the death of the Veteran, the first requirement of a current disorder will always have been met - i.e., the current disorder being the disorder that caused the Veteran to die. However, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or 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). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). Notwithstanding, an Appellant is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The Appellant is claiming entitlement to service connection for the cause of the Veteran's death. She maintains that the Veteran was exposed to herbicides during his active military service as a petroleum storage specialist and vehicle driver. The Appellant asserts that this chemical exposure caused the Veteran to develop myelodysplasia, which ultimately led to his death. In the instant case, the Veteran died in January 2008. The death certificate lists the immediate cause of death as myelodysplasia. No underlying causes of death were listed. An autopsy and biopsy were not performed at the time of death. At the time of his death, the Veteran was service-connected for a lumbar spine disability, a hiatal hernia, neuropathy of the left ulnar nerve, residuals of a right knee injury, retained foreign bodies with scar of the right thigh, residuals of a vitreous hemorrhage of the right eye, lipoma of the chest wall, defective hearing, residuals of a fracture of the left wrist, and residuals of a fracture of the right zygoma. In this regard, there is no evidence in the claims file to support, and the Appellant does not allege, that any of these service-connected disabilities caused the Veteran's death, or substantially or materially contributed to the Veteran's death. None of these service-connected disabilities were the Veteran's primary or contributory cause of death. The evidence of record also does not show that the debilitating effects of these service-connected disabilities made the Veteran materially less capable of resisting the fatal myelodysplasia or had a material influence in accelerating death. As previously stated, the Board finds that a VA medical opinion is not necessary to decide this issue. Thus, the Board concludes that the probative evidence of record does not show that a service-connected disability either caused or contributed substantially or materially to the Veteran's death. No further discussion of this theory of entitlement is necessary. Instead, the Appellant essentially contends that the Veteran was exposed to herbicides during his active military service. She has claimed that the Veteran served in Vietnam, and as such, is presumed to be exposed to herbicides. The Appellant asserts that this exposure to herbicides caused the Veteran to develop myelodysplasia, which ultimately led to his death. The Board notes that myelodysplasia is not one of the diseases for which VA has determined that presumptive service connection based on exposure to herbicides is warranted. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See 75 Fed. Reg. 53,202-53,216 (Aug. 31, 2010); see also 72 Fed. Reg. 32,345-32,407 (June 12, 2007); 61 Fed. Reg. 57,586-57,589 (Nov. 7, 1996); and 59 Fed. Reg. 341-46 (Jan. 4, 1994). In the absence of a diagnosed disease for which the presumption applies, 38 C.F.R. §§ 3.307(a)(6)(iii) and 3.309(e) is not applicable, The Appellant has claimed that myelodysplasia is pre-leukemia, and the Appellant's accredited representative has pointed out that all chronic B-cell leukemias are presumed by regulation to be associated with exposure to herbicides. See 38 C.F.R. § 3.309(e). However, neither the Appellant, nor her representative are competent to render an opinion that the Veteran's myelodysplasia is essentially analogous to a B-cell leukemia. Therefore, even if the Veteran was exposed to herbicides during his active duty, service connection may not be granted for myelodysplasia on the basis of the presumptive regulatory provisions discussed above. Additionally, the Board finds that the Veteran is not entitled to presumptive service connection for myelodysplasia as a chronic disease. The earliest post-service medical treatment records diagnosing the Veteran with myelodysplasia are dated from 2007, and the Veteran was separated from the active duty in 1972. No diagnosis of leukemia or myelodysplasia was made within one year of the Veteran's military discharge. The Appellant has not alleged that the Veteran's myelodysplasia has been present continuously since his active military service. Thus, the presumption for service connection for chronic diseases does not apply. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Finally, the Board has considered whether service connection for the cause of the Veteran's death could be warranted on a direct basis. However, none of the Veteran's medical treatment providers gave any indication that the Veteran's myelodysplasia could be related to his active duty service to include in-service herbicide exposure. The only evidence which provides any connection between the Veteran's myelodysplasia and his service comes from the Appellant herself. It is to be noted that the Board is not free to substitute its own judgment for as such a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this regard, the Board has considered the Appellant's lay statements. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, whether the Veteran's myelodysplasia was caused by his active military service and whether the Veteran's service-connected disorders caused or contributed to his death, these issues fall outside the realm of common knowledge of a layperson. See Jandreau, 492 F.3d at 1377 n.4 (laypersons not competent to diagnose cancer). As a layperson, it is not shown that the Appellant possesses the medical expertise to provide such opinions, and no competent nexus opinions are of record. Thus, as previously stated, the medical evidence of record is only against the Appellant's claim. Accordingly, upon a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that any disease or injury, to include myelodysplasia, incurred during the Veteran's active military service was the principal or contributory cause of the Veteran's death. No causal connection between the Veteran's military service and his death is demonstrated by the evidence of record. The Board is sympathetic to the Appellant in that it is clear she sincerely believes her spouse's death was caused by herbicide exposure during his active military service. However, the evidence of record does not support this contention. Additionally, the Veteran's service-connected disabilities have not been shown to have caused his death, or substantially or materially contributed to the Veteran's death. As the preponderance of the evidence is against the Appellant's claim of entitlement to service connection for the cause of the Veteran's death, the benefit-of-the doubt rule does not apply. The claim for service connection for the cause of the Veteran's death must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Accrued Benefits An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. An application 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 to support a claim for accrued benefits, the veteran or other payee must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). In this case, the Veteran last filed a claim for VA benefits in May 1997. This claim was properly adjudicated by the RO in a December 1997 rating decision. The Veteran did not file a notice of disagreement with the December 1997 rating decision. The claims file does not contain evidence that the Veteran had any outstanding unadjudicated informal or formal claims before he died in January 2008. Indeed, the Appellant has not claimed that the Veteran had any outstanding claims or unpaid benefits at the time of his death. Rather, she has consistently referred to her claim as one for "death benefits." Consequently, there were no claims pending at the time of the Veteran's death; there was no unrated medical evidence in the claims file at the time of his death; and the Veteran was not entitled to any unpaid benefits at the time of his death. Thus, accrued benefits must be denied. As the pertinent facts are not in dispute and the law is dispositive, this claim must be denied because of the absence of legal merit. Sabonis, 6 Vet. App. 426. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to accrued benefits is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs