Citation Nr: 1336033 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-23 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to April 1970. He died in March 2007. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Seattle, Washington. In March 2013, the appellant testified before a Veterans Law Judge seated at a RO. A transcript of this hearing has been added to the record. FINDINGS OF FACT 1. The Veteran died in March 2007. 2. The immediate cause of death listed on the death certificate was esophageal cancer, with an underlying cause listed as cerebral metastases of esophageal cancer. 3. At the time of his death, the Veteran was not in receipt of service connection for any disability. 4. The Veteran has confirmed service in Vietnam and his exposure to herbicides is presumed. 5. The weight of the competent and probative evidence shows that the first diagnosis of cancer was in 2006. The Veteran's cancer was not present in service or for many years thereafter, and it is not related to a disease or injury in service, or herbicide exposure. CONCLUSION OF LAW The criteria for service connection for cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). For the reasons to be discussed, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). 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 (2007). The RO provided such specific notice with respect to the appellant's claim for service connection for the cause of the Veteran's death within a February 2009 notice letter. Additionally, this notice was provided prior to the May 2009 rating decision on appeal, preventing any timing deficiency regarding the required VA notice. See Mayfield, supra. The Veteran is represented by a veterans service organization (VSO) and that organization is presumed to have knowledge of what is necessary to substantiate a claim for VA benefits. Neither the appellant nor her representative has pled prejudicial error with respect to the content or timing of any VCAA notice. See Shinseki v. Sanders, 129 U.S. 1696 (2009). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. Regarding VA's duty to assist in claims development, the Federal Circuit has held that 38 U.S.C.A. § 5103A(a) applies to DIC claims. Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Under such statutory authority, VA is required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A (a)(1). However, VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim. In the present case, it appears that all known and available records relevant to the pending appeal have been obtained and are associated with the claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. In March 2013, the Veteran was afforded the opportunity to testify before a Veterans Law Judge. During the hearing, the Veterans Law Judge clarified the issue on appeal and asked about the possibility of additional or forgotten records. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. The record was held open for 90 days following the haring to allow the appellant and her representative the opportunity to submit additional evidence, including medical evidence. No additional evidence was submitted. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. No medical opinion has been obtained in this case; however, no medical opinion is needed to meet the requirements of 38 U.S.C.A. § 5103A(a) (VA Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim). In this case, the Veteran died of esophageal cancer. The available service treatment records are absent of any complaints, findings, or treatment for problems involving the esophagus or for esophageal cancer, and the post-service medical evidence shows that the Veteran's esophageal cancer manifested many years after service. There is no in-service injury, disease, or event, to which such cancer could be related, as will be discussed in greater detail below. Therefore, any opinion relating the Veteran's esophageal cancer to service would be of no probative value and could not substantiate the claim for service connection for the cause of the Veteran's death. 38 U.S.C.A. § 5103A(a). There is otherwise sufficient medical evidence to decide the claim, that is, to show the post-service onset of esophageal cancer and related symptoms years after service. Based on the foregoing, the Board finds that the appellant has not been prejudiced by any failure of VA in its duties to notify and assist her, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 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). Thus, adjudication of her claim at this time is warranted. Service Connection - Cause of Death The appellant, the Veteran's surviving spouse, seeks service connection for the cause of the Veteran's death. She contends that the cause of his death, esophageal cancer with metastases to the brain, is the result of the Veteran's exposure to herbicides during his service in Vietnam. 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). Further, where the veteran served continuously for ninety (90) or more days during a period of war, and malignant tumors became manifest to a degree of 10 percent or more within a specified time period from the date of his or her termination of such 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; 38 C.F.R. §§ 3.307, 3.309. The Veteran was not in receipt of service connection for any disease or injury at the time of his death; thus, a service-connected disability was not the cause of the Veteran's death. The Board must also consider, however, whether the Veteran's cause of death was related to any disease, injury, or other incident of service. The appellant contends the Veteran's cause of death was the result of his herbicide exposure during service. Service personnel records confirm that the Veteran served in Vietnam during his active duty service; thus, his exposure to herbicides is conceded by VA. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied; chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutaneous tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchitis, laryngitis or trachea) and soft tissue sarcomas, other than osteosarcoma, chondrosarcoma Kaposi's sarcoma, or mesothelioma. 38 C.F.R. § 3.309(e). Esophageal cancer is not among the listed diseases. Notwithstanding the foregoing, a veteran may still establish service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). The Veteran died in March 2007. The death certificate indicated that he died of esophageal cancer as an immediate cause, with cerebral metastases of esophageal cancer as an underlying cause. The Veteran was first diagnosed with esophageal cancer in 2006, more than 30 years after service separation. The appellant does not contend and the record does not suggest onset of esophageal cancer either during service, or within a year thereafter. Therefore, service connection for the cause of the Veteran's death as having been incurred during service or with onset to a compensable degree within a year thereafter is not warranted. Considering next the appellant's contentions regarding an etiological nexus between herbicide exposure and esophageal cancer, the Board notes that esophageal cancer is not among the disorders for which service connection is presumed in veterans with confirmed herbicide exposure. See 38 C.F.R. § 3.309(e). Nevertheless, the appellant may present evidence of such a nexus in support of her claim. See Combee, 34 F.3d at 1044. In the present case, she has not done so. While the appellant has submitted, or authorized VA to obtain, the Veteran's private terminal treatment records, these records do not suggest an etiological nexus between herbicide exposure and esophageal cancer or cerebral metastases. Rather, these records confirm the diagnosis of esophageal cancer, and the Veteran's treatment for the same. In the absence of any nexus between any disease, injury, or incident of the Veteran's service, to include herbicide exposure, and his esophageal cancer, service connection for the cause of the Veteran's death must be denied. The appellant has herself asserted that the Veteran's esophageal cancer was the result of his herbicide exposure. The Board finds, however, that as a layperson, the appellant is not competent to offer own assertions regarding such an etiological nexus, as she lacks the specialized training or knowledge regarding such complex medical matters. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 469; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). An appellant is competent to report symptoms that he or she experiences or observes at any time because this requires only personal knowledge as it comes to him or her through their senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). While the present appellant is competent to report her observations about the Veteran's illness, esophageal cancer is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. Thus, her written and oral assertions, though credible, lack probative weight regarding the etiology of the Veteran's cause of death. Laypersons may also testify regarding complex medical matters related to them by a competent medical expert; at her 2013 hearing, however, the appellant stated that while the Veteran was treated by several physicians in the months prior to his death, none of them attributed his esophageal cancer or cerebral metastases to herbicide exposure, or suggested onset prior to 2006. In conclusion, the Board finds the preponderance of the evidence to be against the appellant's claim of service connection for the cause of the Veteran's death. The Veteran's esophageal cancer was neither incurred during service, manifested to a compensable degree within a year thereafter, or was the result of his confirmed herbicide 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. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs