Citation Nr: 1336697 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 12-33 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from July 1943 to September 1945. He died in January 1980. The Appellant is seeking benefits as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a January 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board must note that in reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to ensure a total review of the evidence. In October 2013 the Board received a letter a law firm, not the Appellant's current representative, asking several questions regarding the September 2013 notice letter on behalf of the Appellant. Among the questions listed the attorney inquired "When will the hearing be docketed?" Based on review of the October 2013 letter as a whole, especially in context of the entire claims file, the Board finds this inquiry is not a request for a hearing. The letter as a whole only expresses confusion over the September 2013 notice letter from the Board and does not indicate the Appellant herself wishes to appear at a personal hearing before the Board. Moreover, this attorney and his law firm do not currently represent the Appellant before the Board. Finally, in her October 2012 substantive appeal the Appellant clearly indicated she did not want a hearing before the Board. In addition, the case, as requested, has been expedited. Therefore no hearing was requested and adjudication may proceed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in January 1980. The Veteran's cause of death was glioblastoma multiforme of the left temporal lobe. 2. At the time of his death, the Veteran was service connected for injury to muscles of the left thigh with retained foreign bodies, shortening of the leg, and slight muscular atrophy, evaluated as 40 percent, and post operative subtotal gastric resection, evaluated as 20 percent. 3. The evidence is against a finding that the Veteran's death was the result of his military service. CONCLUSION OF LAW Neither the Veteran's military service, nor a service-connected disability, caused, or contributed substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1310, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, the Veteran's highly honorable military service is not is dispute. The Appellant is seeking dependency and indemnity compensation following her husband's death in January 1980, more than 33 years ago. To establish service connection for the cause of a veteran's death, the evidence must show that the disease which caused death was incurred in or aggravated by service or that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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 it to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. That is to say, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c); see Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. In this case the Veteran passed away in January 1980. His death certificate lists the cause of death as glioblastoma multiforme of the left temporal lobe during military service. The claims file does not include any additional medical information suggesting a different immediate cause of death or any contributing cause of death. As such, the Board finds the evidence of record establishes the Veteran's primary cause of death was due to glioblastoma multiforme of the left temporal lobe. The Veteran served highly honorably during World War II from July 1943 to September 1945. His service treatment records reflect he received a bullet wound to his left thigh during enemy action in Germany near the French border in November 1944. As a result of this wound the Veteran experienced shortening of the left leg and some muscle atrophy. In 1945 the Veteran also received treatment for persistent epigastric complaints due to an ulcer. However there is no record of any complaint of or treatment for any glioblastoma multiforme of the left temporal lobe. In September 1945 the Veteran was medically discharged due to residuals of his left thigh injury. During his lifetime the Veteran was granted service connection for injury to muscles of the left thigh with retained foreign bodies, shortening of the leg, and slight muscular atrophy, evaluated as 40 percent, and post operative subtotal gastric resection evaluated as 20 percent. He was not service connected for glioblastoma multiforme of the left temporal lobe at the time of his death. The Board finds the evidence does not establish the Veteran's death was due to his service connected conditions relating to residuals of a left thigh injury or gastric resection. The Appellant has submitted two written statements in which she essentially asserted the Veteran's chemotherapy to treat his brain cancer also aggravated his service connected stomach condition. The Appellant asserted the Veteran had continuous problems with his stomach since discharge which were only made worse by radiation treatment. She asserted "the treatment for the cause of his death and his service connected medical conditions were so intertwined, it would be very difficult to separate" which impacted his daily health up until his death. As a lay person the Appellant is competent to report what comes to her through her senses, such as observing the Veteran's gastrointestinal complaints and discomfort. Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, her lay statements have been reviewed and considered. However, the Appellant lacks the medical training and expertise to provide a complex medical opinion as to the primary and any contributing causes of her husband's death more than thirty years ago. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board does not doubt that the radiation and chemotherapy used to treat the Veteran's cancerous brain tumor also caused her husband to suffer additional gastrointestinal complications. However, the claims file simply does not contain any medical evidence suggesting the Veteran's service connected stomach condition caused or even contributed to his death. The file does include private treatment records from near the end of the Veteran's life. These records primarily are focused on treatment related to his malignant brain tumor and related surgeries, however records relating to treatment of a rectal abscess from late 1978 are also included. However none of these records suggest the Veteran was receiving treatment related to his service connected conditions near the end of his life, which only provides evidence against this contention. On at least two separate occasions the Appellant stated she would submit a medical opinion stating the Veteran's service connected conditions contributed to his overall condition and subsequent death. However in the more than two years since she originally filed this claim no such medical opinion has been submitted. Should the Appellant obtain such medical evidence at any time she is welcome to refile her claim. Based on the foregoing the Board finds the claims file simply does not include any medical evidence suggesting the Veteran's service connected conditions caused or substantially contributed to his death. The claims file does not include any medical evidence suggesting the Veteran's death was caused by his existing service-connected conditions. Additionally, the file does not include any medical evidence suggesting the Veteran's cause of death, glioblastoma multiforme of the left temporal lobe should have been service connected. Therefore the claims file does not include any medical evidence in support of the Appellant's lay assertions and her claim for dependency and indemnity compensation is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, section 5103(a) notice must be tailored to the claim. The notice should 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In this case notice was provided by a November 2011 letter, which informed the Appellant of the notice required by the Pelegrini Court, as well as the additional DIC notice required by Hupp. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, 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). Service treatment records were obtained, as well as private treatment records. Additionally, the Appellant was offered the opportunity to testify at a hearing before the Board, but she declined. The Board notes that a VA examination/medical opinion was not provided in this case. However, as discussed above, the Board finds the claims file does not include any medical evidence suggesting the Veteran's death was caused or contributed to by his service-connected conditions. Because there is no indication that his death may be related to his military service an examination was not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). It is important for the appellant to understand that there is simply nothing in the medical record that indicates a connection between the service-connected disabilities and the Veteran's death which would warrant a medical opinion. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's 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; evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and and (4) whether there otherwise is sufficient competent medical 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran's claimed disability is related to death is the conclusory generalized lay statements of the appellant, which is unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Even if one were obtain at this time, it is unclear on what evidence a medical provider could give a cogent medical opinion in what would be 2014 that could grant this claim based on the evidence that is available as the Veteran died more than 30 years ago and there is highly limited evidence in this case. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Appellant in adjudicating this appeal. ORDER The claim for service connection for the cause of the Veteran's death is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs