Citation Nr: 1336878	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  05-26 861	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Whether new and material evidence has been to reopen the claim of service connection for a skin disorder to include as due to exposure to Agent Orange for the purpose of accrued benefits. 

2.  Entitlement to service connection for memory loss to include as due to exposure to Agent Orange for the purpose of accrued benefits. 

3.  Entitlement to service connection for pancreatic cancer to include as due to exposure to Agent Orange for the purpose of accrued benefits.

4.  Entitlement to service connection for the cause of the Veteran's death. 

5.  Entitlement to death pension benefits. 

6.  Entitlement to burial benefits. 


7.  Entitlement to an effective date prior to February 6, 1997, for the grant of service connection for posttraumatic stress disorder for the purpose of accrued benefits. 

8.  Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder for the purpose of accrued benefits. 

9.  Entitlement to additional compensation for dependents for the purpose of accrued benefits.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel


INTRODUCTION

The Veteran served on active duty from October 1969 to October 1972.  The Veteran died in December 2004.  The Appellant is the Veteran's surviving spouse. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in May 2005, of a Department of Veterans Affairs (VA) Regional Office (RO) or an Agency of Original Jurisdiction (AOJ). 





In February 2008, the Appellant appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the record. 

While on appeal in a decision in April 2008, the Board granted service connection for posttraumatic stress disorder for the purpose of accrued benefits.  The Board also remanded the other claims for additional development.  In a rating decision in September 2008, implementing the Board's decision that granted service connection for posttraumatic stress disorder, an AOJ assigned an effective date and a disability rating, and paid past due benefits to include additional compensation for dependents.  Following a remand by the Board in March 2010, the Appellant perfected an appeal of the additional claims, namely, the effective date and the disability rating for posttraumatic stress disorder and additional compensation for dependents.  

The new and material evidence claim of service connection for a skin disorder to include as due to exposure to Agent Orange for the purpose of accrued benefits and the claims for death pension benefits and for burial benefits are REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  For the purpose of accrued benefits, the presence of a disability manifested by memory loss other than memory loss that is attributable to service-connected posttraumatic stress disorder is not shown.






2.  For the purpose of accrued benefits, pancreatic cancer with metastasis to the liver was not affirmatively shown to have been present during service; pancreatic cancer with metastasis to the liver was not manifested to a compensable degree within one year from the date of separation from service in 1972; pancreatic cancer with metastasis to the liver, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event in service; pancreatic cancer with metastasis to the liver, is not a disease presumed to be due to exposure to Agent Orange; and pancreatic cancer with metastasis to the liver is not actually caused by exposure to Agent Orange.

3.  The Veteran died in December 2004, and the death certificate lists the cause of death as metastatic carcinoma of pancreaticobiliary origin; no other condition was listed as contributing to death, and no autopsy was performed.

4.  The Veteran's death was not due to a disability incurred in service to include as due to Agent Orange exposure. 

5.  Service-connected posttraumatic stress disorder did not cause or contribute to the cause of the Veteran's death. 

6.  For the purpose of accrued benefits, following final denial of the claim of service connection for posttraumatic stress disorder in a rating decision in January 1991, the Veteran's application to reopen the claim was received by VA on February 6, 1997, which is the earliest date assignable for service connection for posttraumatic stress disorder. 





7.  For the purpose of accrued benefits, posttraumatic stress disorder was manifested by disturbances in mood, occupational functioning, and social relationships due to symptoms such as impaired impulse control and occasional suicidal ideation; posttraumatic stress disorder resulted in occupational and social impairment with deficiencies in most areas such as work, personal relations, and mood, but not total social and occupational impairment.

8.  For the purpose of accrued benefits, following the grant of service connection for posttraumatic stress disorder and the assignment of a disability rating, past due benefits included additional compensation for the Appellant as the surviving spouse and for two dependants.


CONCLUSIONS OF LAW

1.  For purpose of accrued benefits, the criteria for service connection for memory loss have not been met, except for memory loss attributable to service-connected posttraumatic stress disorder.  38 U.S.C.A. §§ 1110, 5121, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.1000 (2013).

2.  For purpose of accrued benefits, the criteria for service connection for pancreatic cancer with metastasis to the liver have not been met.  38 U.S.C.A. §§ 1110, 5121, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (2013).

3.  The criteria for service connection for the cause of Veteran's death have not been met.  38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2013).




4.  For the purpose of accrued benefits, the criteria for an effective date earlier than February 6, 1997, for the grant of service connection for posttraumatic stress disorder have not been met.  38 U.S.C.A. §§ 5110, 5121 (West 2002); 38 C.F.R §§ 3.400, 3.1000 (2013).

5.  For the purpose of accrued benefits, the criteria for a rating of 70 percent for posttraumatic stress disorder have been met.  38 U.S.C.A. §§ 1155, 5121 (West 2002); 38 C.F.R. §§ 3.1000, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2013).

6.  For the purpose of accrued benefits, as the benefit sought had been granted, namely, past due benefits to include additional compensation for the Appellant as the surviving spouse and for two dependants, is dismissed.  38 U.S.C.A. § 7105 (West 2002). 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.



Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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).

In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).

In a claim for dependency and indemnity compensation, including a claim of service connection for the cause of the veteran's death, the VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death, (2) an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition, and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected.  Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). 

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The RO provided pre- and post- adjudication VCAA notice by letters, dated in October 2004, in February 2005, in December 2008, in August 2009, in April 2010 and in September 2012.  


The Appellant was notified of the evidence needed to substantiate a claim for accrued benefits; namely, evidence in the Veteran's file at the time of the Veteran's death, which showed that VA benefits were due, but had not been paid, to the Veteran at the time of his death.  The Appellant was notified of the type of evidence that was required to substantiate the claim for the cause of the Veteran's death due to service-connected posttraumatic stress disorder or to a disability not yet service-connected.  The Appellant was notified of the provisions for the degree of disability assignable and for the effective date of a claim for service connection, following the initial grant of service connection.

As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); of Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007) (an explanation of the evidence and information required to substantiate the claim based on a service-connected condition and for a condition not yet service connected); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent of pre-adjudication VCAA notice); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). 

To the extent that the VCAA notices came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication.  The procedural defect was cured as after the RO provided content-complying VCAA notice, the claims were readjudicated as evidenced by the supplemental statement of the case dated in February 2013.  



Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).

On the initial rating for and the effective date of service connection for posttraumatic stress disorder as service connection has been granted and an initial rating has assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. 

Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for higher initial rating and earlier effective date for posttraumatic stress disorder, following the initial grant of service connection.  Dingess at 473. 

Duty to Assist

For accrued benefits, entitlement to benefits due and unpaid on a death of the Veteran requires that an underlying claim be based on evidence in the file at the date of death of the Veteran.  Evidence in the file at date of death means evidence in VA's possession on or before the date of the Veteran's  death, even if such evidence was not physically located in the VA file on or before the date of death, in support of a claim for VA benefits pending on the date of death.  38 C.F.R. § 3.1000(d)(4).  





As there are no outstanding service records or VA records during the Veteran's lifetime of which VA has constructive notice, no further action is necessary to assist the Appellant in the development of the claims of service connection for memory loss and for pancreatic cancer for the purpose of accrued benefits. 

VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim.  The duty to assist also includes obtaining a medical opinion when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

On the claim of service connection for the cause of the Veteran's death, in November 2005, the RO obtained a VA medical opinion addressing the possible relationship of the Veteran's fatal cancer and exposure to Agent Orange. 

As the VA medical opinion was based on a review of the Veteran's history and as medical analysis was applied to the facts of the case to reach the conclusion reached in the opinion, the opinion is adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).

On the claims for an initial higher rating and for an earlier effective date for service connection for posttraumatic stress disorder, the RO obtained the service treatment records, VA records, and private medical records.  The claims are based on the evidence of record at the time of the Veteran's death. 






As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Appellant in developing the facts pertinent to the claims is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Accrued Benefits

A Veteran's surviving spouse may claim accrued benefits due but not yet paid to the Veteran at the time of his death.  Accrued benefits are periodic monetary benefits to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at the date of death and were due and unpaid upon the death of such individual.  38 C.F.R. § 3.1000(a). 

Pursuant to 38 U.S.C. § 5121(c), an application for accrued benefits must be filed within one year after the date of the Veteran's death.  38 C.F.R. § 3.1000(c).  In this case the Appellant's claim for accrued benefits was timely filed in January 2005, within one year of the Veteran's death in December 2004.  38 C.F.R. § 3.1000(c).

Entitlement to accrued benefits is to be determined based on evidence that was in the Veteran's file at the time of his death.  38 U.S.C.A. § 5121(a). 

A pending claim is a claim which has not been finally adjudicated.  38 C.F.R. §3.160. 





Service Connection for the Purpose of Accrued Benefits 

At the time of the Veteran's death, the Veteran had pending claims of service connection for memory loss and for pancreatic cancer to include as due to exposure to Agent Orange.

A Veteran is entitled to VA disability compensation, that is, service connection, if there is a disability resulting from personal injury suffered or disease contracted in line of duty in service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in service.  38 U.S.C.A. § 1110.

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303.

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b). 




Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including malignant tumors [cancer], if manifest to a compensable degree within the year after active service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).

A Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicides, including a herbicide commonly referred to as Agent Orange. 

If a Veteran is presumably exposed to Agent Orange, there is no presumption of service connection for memory loss, unless memory loss is a manifestation of a disease associated with exposure to Agent Orange.  There is a presumption of service connection for certain cancers, but not for pancreatic cancer or hepatobiliary cancer.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6) and 3.309(e).  

VA's Secretary has determined that a presumption of service connection based on exposure to Agent Orange 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 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41442 (Aug. 8, 1996); 64 Fed. Reg. 59232 (Nov. 2, 1999); 66 Fed. Reg. 2376 (Jan. 11, 2001); 67 Fed. Reg. 42600 (June 4, 2002); 68 Fed. Reg. 27630 (May 30, 2003); 72 Fed. Reg. 32395 (June 12, 2007); 75 Fed. Reg. 32540 (June 8, 2010); 75 Fed. Reg. 81332 (Dec. 27, 2010); and 77 Fed. Reg. 47924 (August 10, 2012). 


Notwithstanding the aforementioned provisions relating to presumptive service connection due to exposure to Agent Orange, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2, 725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of actual causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  As the Veteran served in combat, VA shall accept as sufficient proof of service connection, that is, whether a particular disease or injury was occurred in service, that is, what happened then, so long as the evidence is consistent with the circumstances, conditions or hardships of such service, the fact that there is no official record of such incurrence is of no consequence.  38 U.S.C.A. § 1154(b). 

The presumption afforded under 38 U.S.C.A. § 1154(b) deals only with the question of whether a particular disease was occurred in service, that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent evidence is required.  Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996).

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible.  Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).



Competency is distinguished from the credibility and weight of admissible evidence, which are factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  If the evidence is not credible, the evidence has no probative value. 
Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 

Memory Loss and Pancreatic Cancer 

Evidence

The service personnel records show that the Veteran left Vietnam in November 1971.   

The service treatment records contain no complaint, finding, history, treatment, or diagnosis of memory loss or of pancreatic cancer. 

After service, on VA psychiatric examination in October 1989, the Veteran's remote and recent memory was described as very good by a VA examiner.  On another VA examination in October 1989, the Veteran complained that his memory was not good.  



During the Veteran's lifetime, there was no diagnosis of memory loss or of a disability manifested by memory loss.

For the purpose of accrued benefits, in a decision in April 2008, the Board granted service connection for posttraumatic stress disorder.  

After service, VA records show that in August 2004 the Veteran complained of abdominal pain for over one month.  A CT scan showed pancreatic and liver masses.  After a biopsy the diagnosis was metastatic pancreatic cancer to the liver. 

Analysis 

Service Connection on the Basis other than Exposure to Agent Orange

It is not argued and on the basis of the service treatment records alone, neither memory loss nor pancreatic cancer was affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not warranted. 

Memory Loss

Memory loss alone without association with an underlying disease listed as a chronic disease in 38 C.F.R. § 3.309, is not a chronic disease and the theory of service connection based on chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not warranted.  




See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (presumption of service connection for chronic diseases manifested during service applies only to enumerated chronic diseases under 38 C.F.R. § 3.309(a) and continuity of symptomatology avenue to service connection is available only for enumerated chronic diseases, 38 C.F.R. § 3.309(a)).  

As for service connection based on an initial diagnosis after service under 38 C.F.R. § 3.303(d), the Veteran complained of a memory problem on VA examination in October 1989.  As there is no evidence of a disability other than posttraumatic stress disorder manifested by memory loss or of a diagnosis of memory loss due to a disease or injury or event in service other than exposure to Agent Orange in service, service connection for memory loss as a separate disability under 38 C.F.R. § 3.303(d) for the purpose of accrued benefits is not warranted.

To the extent there is memory loss, impaired long-term or short-term memory loss is a manifestation of posttraumatic stress disorder and impaired memory loss is encompassed in the rating criteria for service-connected posttraumatic stress disorder.  38 C.F.R. § 4.130, Diagnostic Code 9411.  In the absence of medical evidence that separates the effects of service-connected posttraumatic stress disorder (memory loss as a manifestation) and the nonservice-connected memory loss, the memory loss is attributed to the service-connected posttraumatic stress disorder.  Mittleider v. West, 11 Vet. App. 181 (1998). 

Pancreatic Cancer with Metastasis to the Liver

Unlike memory loss, cancer is a chronic disease listed in 38 C.F.R. § 3.309(a), and the theory of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) must be addressed.  See Walker, 708 F.3d 1331.  


It is not argued and there is no evidence either contemporaneous with or after service that symptoms or findings indicative of cancer, but not dispositive of cancer were "noted" in service, service connection on the theory of chronicity and continuity of symptomatology do not apply.  38 C.F.R. § 3.303(b) (for the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, and continuity of symptomatology after discharge is required where the condition "noted" during service is not, in fact, shown to be chronic). 

As for service connection based on an initial diagnosis after service under 38 C.F.R. § 3.303(d), pancreatic cancer with metastasis to the liver was diagnosed by biopsy in 2004, well beyond the one-year presumptive period after service, ending in 1972, for manifestation of a cancer as a chronic disease and presumptive service connection as a chronic disease under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307, 3.309 is not warranted. 

And it is not argued and there is no evidence that pancreatic cancer with metastasis to the liver, first documented after service beyond the one-year presumptive period pertaining to a chronic disease, is otherwise related to an injury, disease, or event other than exposure to Agent Orange in service and service connection under 38 C.F.R. § 3.303(d) is not established. 

Service Connection on the Basis of Exposure to Agent Orange

It is asserted that memory loss and pancreatic cancer with metastasis to the liver were due to exposure to Agent Orange. 





While the Veteran served in Vietnam and his exposure to Agent Orange is presumed, memory loss alone without association with a disease on the list of presumptive diseases associated with exposure to Agent Orange and pancreatic cancer with metastasis to the liver are not presumptive diseases associated with exposure to Agent Orange and service connection on a presumptive basis due to exposure to Agent Orange in Vietnam is not established under 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).

Notwithstanding the provisions of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e), 
relating to presumptive service connection due to exposure to Agent Orange, service connection can be established with proof of actual causation, that is, proof that exposure to Agent Orange actually caused memory loss and pancreatic cancer with metastasis to the liver.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

The remaining question is whether there is competent evidence that memory loss and pancreatic cancer with metastasis to the liver are actually caused by exposure to Agent Orange, the so-called "nexus" requirement.  Shedden, at 1167.

There is no medical or scientific evidence of record that shows that exposure to Agent Orange actually causes memory loss or pancreatic cancer with metastasis to the liver. 

To the extent it is asserted that there is actual causation, as the lay assertion is an inference based on facts, it is an opinion rather than a statement of fact.  And a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).   




A simple medical condition is one capable of lay observation.  38 C.F.R. § 3.159 (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 lay person). 

The nexus between exposure to Agent Orange and the claimed disabilities is not a simple medical condition, because actual causation falls outside the realm of common knowledge of a lay person.  And no factual foundation has been established to show that the lay opinion rests on one who has specialized education, training, or experience to offer an opinion on actual causation between exposure to Agent Orange and memory loss and pancreatic cancer with metastasis to the liver. 

Since the lay evidence is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claims. 

Summary

For reasons articulated, the preponderance of the evidence is against the claims of service connection for a separated disability of memory loss and for pancreatic cancer with metastasis to the liver, considering the applicable theories of service connection, including as due to exposure to Agent Orange for the purpose of accrued benefits, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).






II. Service Connection for the Cause of Death

Evidence 

The Veteran died in December 2004 at the age of 53.  The death certificate listed the cause of death as metastatic carcinoma of pancreaticobiliary origin.  The approximate interval between onset and death was listed as four months.  No autopsy was performed.

Service connection for the cause of the Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory, cause of death.  38 C.F.R. § 3.312(a).  

For a service-connected disability to be the principal cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related.  38 C.F.R. § 3.312(b).  For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially to cause death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(c)(1).

The Appellant asserts that the Veteran's fatal cancer was related to exposure to Agent Orange.  She states that the cancer may have originated in the lungs, rather than the pancreas, liver, or biliary tract, and thus would be subject to presumptive service connection based on exposure to Agent Orange.

The service personnel records show that the Veteran left Vietnam in November 1971.   

The service treatment records contain no complaint, finding, history, treatment, or diagnosis of pancreatic, liver, biliary, or pulmonary cancer. 


After service, VA records show that in August 2004 the Veteran complained of abdominal pain for over one month.  A CT scan showed pancreatic and liver masses.  After a biopsy the diagnosis was metastatic pancreatic cancer to the liver. 

Private medical records from October 2004 show that the Veteran was evaluated at M.D. Anderson Cancer Center in Houston, Texas.  A staining profile was consistent with cholangiocarcinoma (bile duct cancer) or metastatic tumor from the urinary bladder or pancreatic or biliary (including the bile ducts) or gastric origins.  On follow-up, it was reported that the tumor was probably either a hepatocellular carcinoma (liver cancer) or a cholangiocarcinoma (bile duct cancer) or a mixed histology.  

In October 2004, a CT scan was interpreted as showing a primary lobar cholangiocarcinoma in the posterior segment right lobe of the liver with extensive metastatic disease throughout the liver and pulmonary metastatic disease.

In June 2005, a private physician, who treated the Veteran, stated that the Veteran did not have had pancreatic cancer but cholangiocarcinoma and that there was literature to suggest that cholangiocarcinoma may arise as a result of exposure to Agent Orange.

In November 2005, a VA physician reviewed the record and stated that:

A search of the literature on an association of dioxin exposure and cancers of the liver or biliary system was carried out.  The recent literature, including an extensive general medical data base, showed several longitudinal studies involving large numbers of exposed industry workers, farmers, as well as a large group exposed in an industrial accident in Italy in 1984, all of which involved risks of exposure over periods of up to 20 years.  



The reviews indicated no increased risk of cholangiocarcinoma or hepatocellular carcinoma. 

The VA physician expressed the opinion that the cholangiocarcinoma or hepatocellular carcinoma was likely not caused by exposure to Agent Orange.

Analysis

The service treatment records are negative for evidence of fatal metastatic carcinoma of pancreaticobiliary origin.  Based on the service treatment records alone the fatal cancer did not have onset in service and service connection for the cause of death under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not warranted.    

As there is no evidence either contemporaneous with or after service that the fatal cancer was noted during service, and the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply.  Walker, 708 F.3d 1331.   

The earliest evidence of the fatal cancer was in August 2004, 32 years after the Veteran's discharge from service in 1972, well beyond the one-year presumptive period after service for manifestation of a cancer as a chronic disease under 38 U.S.C.A. §§ 1112 and 1137 and 38 C.F.R. §§ 3.307, 3.309 and service connection for the cause of death due to a chronic disease is not warranted. 






Except for exposure to Agent Orange, which is addressed separately, it is not argued and there is no evidence that the fatal cancer, first documented after service beyond the one-year presumptive period pertaining to a chronic disease, is otherwise related to an injury, disease, or event in service and service connection under 38 C.F.R. § 3.303(d) is not warranted. 

Also, the Appellant does not assert and the evidence does not show that service-connected posttraumatic stress disorder caused the Veteran's death.  Posttraumatic stress disorder was not listed on the death certificate as a cause of death and the evidence does not show that posttraumatic stress disorder was the underlying cause of death or was etiologically related to the underlying caused of death, that is, fatal cancer.  38 C.F.R. § 3.312(b).

Also, the Appellant does not assert and the evidence does not show that service-connected posttraumatic stress disorder contributed to the cause of the Veteran's death.  Posttraumatic stress disorder was not listed on the death certificate as contributing to death and the evidence does not show that posttraumatic stress disorder contributed substantially or materially to the cause of death as posttraumatic stress disorder did not affect a vital organ and there is no indication posttraumatic stress itself was of such a progressive and debilitating nature as to have had a materially influence in accelerating death.  38 C.F.R. §  3.312(c)(3).  For these reasons, service-connected posttraumatic stress disorder did not cause or contributory to the cause of the Veteran's death. 

The Appellant's primary argument is that the fatal cancer is attributable to the Veteran's exposure to Agent Orange during service, and that the cancer may have originated in the lungs and thus would be subject to presumptive service connection based on exposure to Agent Orange.



While the Veteran served in Vietnam and his exposure to Agent Orange is presumed, cancer of pancreaticobiliary origin is not a presumptive disease associated with exposure to Agent Orange and service connection on a presumptive basis due to exposure to Agent Orange in Vietnam is not established under 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).

To the extent the Appellant asserts that the fatal cancer may have originated in the lungs, cancer of the lungs is a presumptive disease associated with exposure to Agent Orange.  As the assertion is an inference based on facts, it is an opinion rather than a statement of fact.  The Appellant as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).   

A simple medical condition is one capable of lay observation.  38 C.F.R. § 3.159.  The question of whether the fatal cancer originated in the lungs is not a simple medical condition, because the determination as to the origin of cancer falls outside the realm of common knowledge of a lay person.  And no factual foundation has been established to show that the Appellant has specialized education, training, or experience to offer an opinion on the origins of the fatal cancer. 

Since the Appellant's lay opinion is not competent evidence, the Appellant's opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. 

Moreover, the Appellant's opinion is inconsistent with the medical evidence.  






The private physician, who treated the Veteran, stated that the cancer was consistent with cholangiocarcinoma (bile duct cancer) or metastatic tumor from the urinary bladder or pancreatic or biliary (including the bile ducts) or gastric origins, not the lungs.  And the record shows that the pulmonary involvement was due to metastatic disease and according to the death certificate metastatic cancer was of pancreaticobiliary origin, not of the lungs. 

For these reasons, the Board concludes the fatal cancer did not originate in the lungs, and pulmonary metastatic disease is not a presumptive disease associated with exposure to Agent Orange under 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 

As the fatal cancer is not a presumptive disease associated with exposure to Agent Orange under 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. §§ 3.307(a)(6), 3.309(e), service connection can be established with proof of actual causation, that is, proof that exposure to Agent Orange actually caused cancer of pancreaticobiliary origin.  Combee, at 1042.

The remaining question is whether there is competent evidence that cancer of pancreaticobiliary origin is actually caused by exposure to Agent Orange, the so-called "nexus" requirement.  Shedden, at 1167.

To the extent the Appellant implicitly argues that the fatal cancer was actually due to exposure to Agent Orange, because actual causation falls outside the realm of common knowledge of a lay person.  






And no factual foundation has been established to show that the Appellant has specialized education, training, or experience to offer an opinion on actual causation between exposure to Agent Orange and the fatal cancer, the Appellant's lay opinion is not competent evidence, and the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim of service connection for the cause of the Veteran's death. 

Since the lay evidence is not competent evidence the Board looks to the medical evidence.  

With regard to a medical opinion the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, whether the opinion is the product of reliable principles, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  

As for the opinion of the private physician that the literature suggests that cholangiocarcinoma "may" arise as a result of exposure to Agent Orange, as the opinion is stated that the cancer "may" arise as result of exposure to Agent Orange, it is too speculative to establish that exposure to Agent Orange actually causes cholangiocarcinoma.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in the term of "may" [the equivalent of possible] also implies "may or may not" and is too speculative to establish a medical nexus). 




For this reason, the opinion has little probative value on the material issue of fact, namely, whether exposure to Agent Orange actually causes cholangiocarcinoma.  . 

It is the Appellant's general evidentiary burden to establish all elements of the claim, including the nexus requirement.  Fagan v. Shinseki, 573 F.3d. 1282, 1286   (Fed. Cir. 2009).  Without competent evidence that exposure to Agent Orange actually causes cholangiocarcinoma (bile duct cancer), which is encompassed in cancer of pancreaticobiliary origin, the service connection for the cause of death under Combee is not warranted. 

For the above reasons, the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death, including as due to exposure to Agent Orange and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).

III. Earlier Effective Date

In a decision in April 2008, the Board granted service connection for posttraumatic stress disorder for the purpose of accrued benefit.  

In September 2008 in a rating decision, implementing the Board's decision, the RO assigned an effective date of February 6, 1997, for the award of service connection.  The Appellant disagreed with that effective date.

In November 1988, the Veteran filed his original claim of service connection for post-traumatic stress disorder.  In January 1989, the failed to report for a VA examination.  In a rating decision in January 1989, the RO denied service connection for post-traumatic stress disorder because post-traumatic stress disorder was not shown.  After the Veteran was notified of the adverse determination and of his appellate rights, he did not appeal the rating decision of January 1989. 


In April 1989, the Veteran applied to reopen the claim of service connection for post-traumatic stress disorder.  VA records show that in April and May 1989 the Veteran was hospitalized for drug dependence and substance abuse at the Dallas VA Medical Center.  The problem list included post-traumatic stress disorder, but the final summary did not include a diagnosis of post-traumatic stress disorder. 

On VA psychiatric examination in October 1989, the examiner noted the Veteran's history of combat in Vietnam.  There was also a history of a diagnosis of post-traumatic stress disorder during hospitalization at the Waco VA Medical Center.  The examiner was unable to confirm the diagnosis of post-traumatic stress disorder. 

In a rating decision of January 1991, the RO denied service connection for post-traumatic stress disorder because it was not shown.  After the Veteran was notified of the adverse determination and of his appellate rights, he did not appeal the rating decision of January 1991. 

In February 1997, the Veteran applied to reopen the claim of service connection for posttraumatic stress disorder.  In a letter, mailed to a street address with the number "1378," dated in March 1997, the RO notified the Veteran that to reopen the claim he had to submit new and material evidence.  In a letter, mailed to the same street address, but with the "1376", dated in May 1997, the RO notified the Veteran that as new and material evidence had not been received, his claim was denied.  The letter of May 1997 was returned to the RO by the U.S. Postal Service because the street number could not be found. 

The next correspondence from the Veteran was received in September 2004, when he filed an application to reopen the claim of service connection for post-traumatic stress disorder.  The Veteran died in December 2004.  



Therefore at the time of the Veteran's death he had a pending application to reopen the claim of service connection for post-traumatic stress disorder.  The Board in April 2008 reopened and granted the claim for service connection for posttraumatic stress disorder for accrued benefits.

The RO assigned an effective date of February 6, 1997, for the award of service connection for posttraumatic stress disorder as it determined that the May 1997 rating decision that denied the February 6, 1997, attempt to reopen the claim had not become final as the Veteran apparently never received notification of the May 1997 rating decision.

The effective date of an award of service connection based on new and material evidence received after a final adjudication will be the later of the date entitlement arose or the date of receipt of the reopened claim unless the new and material evidence consists of service department records, in which case the effective date will be the later of the date entitlement arose or the date of receipt of the earlier claim; see 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. 

A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See 38 C.F.R. § 3.1(p). 

Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  


When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim.  38 C.F.R. § 3.155. 

The Veteran was informed of the January 1991 denial of his claim by a letter sent to his then address of record.  He did not file a notice of disagreement and the January 1991 rating decision became final.  

The record contains a VA mental health assessment dated October 2, 1996, that diagnosed posttraumatic stress disorder.  The mere presence of medical evidence does not establish intent on the part of the Veteran to seek entitlement to service connection for a condition.  Brannon v. West, 12 Vet. App. 32 (1998).  A specific claim must be filed by the Veteran.  38 U.S.C.A. § 5110. 

The written statement received by VA on February 6, 1997, is the earliest evidence after the final January 1991 rating decision of the Veteran's intent to reopen his previously denied claim of entitlement to service connection for posttraumatic stress disorder.  

The date of receipt of the reopened claim is February 6, 1997, and is the proper effective date for the grant of service connection for posttraumatic stress disorder for the purpose of accrued benefits.  

As the preponderance of the evidence is against the claim for an earlier effective date for the purpose of accrued benefits, the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).





IV.  Initial Rating for Posttraumatic Stress Disorder

The Appellant asserts that the posttraumatic stress disorder was more disabling than was contemplated by the assigned 50 percent rating.

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In an appeal of an initial rating, consideration must be given to staged ratings, that is, ratings for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

Posttraumatic stress disorder was rated at 50 percent under Diagnostic Code 9411.  The criteria for the next higher rating, 70 percent, are occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships.  


The criteria for a 100 percent rating are total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.  

The Global Assessment of Functioning (GAF) scores reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, are also useful indicators of the severity of a mental disorder. DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). 

A GAF score in the range between 51 to 60 is indicative of moderate difficulty in social or occupational functioning.  A GAF score in the range between from 41 to 50 reflect serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job).

On VA psychiatric assessment in October 1996, the Veteran complained of constant nightmares, flashbacks, and dreams about the Vietnam war.  He stated that he avoided crowds and situations that reminded him of combat.  He described symptoms of startle reaction.   He stated that he was hospitalized twice for posttraumatic stress disorder.  The Veteran gave a history of a suicide attempt in 1995.  He denied any psychotic or manic symptoms or paranoid delusions.  He did harbor animosity towards the government.  The Veteran stated that he lived with his wife and two minor children and he worked as a long distance truck driver.  





On examination, the Veteran was well dressed and well groomed.  He looked bored and depressed but had good eye contact and normal psychomotor behavior.  The rate of speech was slightly decreased.  The thought process was goal directed.  The Veteran denied hallucinations and suicidal or homicidal ideation.  Judgment and insight were fair.  The pertinent diagnosis was posttraumatic stress disorder.  The GAF score was 45.

In December 1996, in a VA treatment note, the Veteran complained of constant nightmares and of anxiety several times a day.  He stated that he felt out of control and that he had poor concentration.  The Veteran denied suicidal or homicidal ideation.  It was noted that the Veteran had not shown improvement in his posttraumatic stress disorder symptoms and his impulse control had gotten worse.  

In a statement in November 2004, the Veteran stated that he continued to have nightmares and that his wife was fearful of what he might say or how he would react in a social setting.  He stated that he did not trust anyone.

At the time of the Veteran's death, the evidence more nearly approximates or equates to occupational and social impairment with deficiencies in occupational and social functioning and in mood due to symptoms such as impaired impulse control, occasional suicidal ideation, nightmares, and sleep disturbance, warranting an initial rating of 70 percent for the purpose of accrued benefits.

The evidence did not demonstrate total occupational and social impairment as Veteran was working for the next higher rating.  







Extraschedular Consideration

Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. 

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. 

If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned rating is adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

Comparing the disability level and symptomatology, the degree of disability was encompassed in the rating criteria and the assigned schedule rating is adequate. In other words, the Board finds that the rating criteria reasonably describe the disability and symptomatology and the Veteran did not have any symptomatology not already encompassed by the rating criteria.  For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). 





Total Disability Rating for Compensation based on Individual Unemployability

As the Veteran was working, the Veteran did not raise and the record did not reasonably raise the claim for a total disability rating for compensation based on individual unemployability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for a total disability rating based on individual unemployability, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits). 

V.  Additional Compensation for Dependents

In a statement in December 2008, the Appellant asserted that the number of dependents for additional compensation for past due benefits should be changed from two, her two children, to three to include herself as the Veteran's surviving spouse.  

In the notice letter by VA to the Appellant in November 2008 it was clearly stated additional compensation was paid for the Appellant as the surviving spouse with two dependents.  In October 2012, in the statement of the case, the Appellant was notified that payment of accrued benefits (past due benefits) included an allowance for the Appellant as the surviving spouse with two children.  

As the record shows that the Appellant was paid the benefits she was seeking, there remains no question of fact or of law to decide on appellate review.  Accordingly, the appeal with respect to the claim is dismissed.  38 U.S.C.A. § 7105(d)(5); see Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy when an appeal has become moot).

      (The Order follows on the next page.).




ORDER

For purpose of accrued benefits, service connection for memory loss to include as due to exposure to Agent Orange is denied. 

For purpose of accrued benefits, service connection for pancreatic cancer with metastasis to the liver to include as due to exposure to Agent Orange is denied.  

Service connection for the cause of Veteran's death is denied.

For the purpose of accrued benefits, an effective date earlier than February 6, 1997, for the grant of service connection for posttraumatic stress disorder is denied.  

For the purpose of accrued benefits, a 70 percent rating for posttraumatic stress disorder is granted.

For the purpose of accrued benefits, the claim for additional compensation for the Appellant as the surviving spouse is dismissed.  


REMAND

On the claim of service connection for a skin disorder to include as due to exposure to Agent Orange for the purpose of accrued benefits, the RO developed the claim as a new and material evidence claim and attached finality to a rating decision in April 1994, denying service connection for residuals of exposure to Agent Orange, including a skin rash. 


In the development of the claim, the Board inadvertently omitted proper due process notice, pertaining to the claim to reopen, which also goes to the question of the Board's jurisdiction to review the claim.  The Board, however, cannot ignore jurisdictional matters, and it must independently determine if claim was properly reopened.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  And further due process notice is required.

On the claim for death pension benefits, in the remand in March 2010, the Board directed that the Appellant be afforded the opportunity to demonstrate hardship in counting the income of her children.  While the RO addressed the claim in the supplemental statement of the case in February 2013, the record does not show that Appellant was given adequate notice of the evidence needed to substantiate the claim under 38 C.F.R. § 3.23(d)(5).  

On the claim for burial benefits, while the RO addressed the claim in the supplemental statement of the case in February 2013, the reason for denying the claim is not clear in light of 38 C.F.R. § 3.1600(b). 

To cure the notice deficiencies, the claims are REMANDED for the following action:
1.  Ensure VCAA compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006), pertaining to the basis for the prior denial of the claim of service connection for a skin disorder, including as due to exposure to Agent Orange, in a rating decision in April 1994, that is, the lack of evidence of chloracne or other acneform disease consistent with chloracne manifested to a degree of 10 percent or more within one year after the date the Veteran was last exposed to Agent Orange, that is, in November 1971.  



2.  On the claim for death pension benefits, notify the Appellant that in order to demonstrate hardship as a result of counting the income of her children, she must satisfy the criteria of 38 C.F.R. § 3.23(d)(5) and (6).  

3.  After the above development, adjudicate the new and material evidence claim and the claim for death pension, applying 38 C.F.R. § 3.23(d)(5) and (6).  On the claim for burial benefits, consider the grant of service connection for posttraumatic stress disorder for a nonservice-connected death burial allowance under 38 C.F.R. § 3.1600(b).  If any benefit sought is denied, furnish the Appellant and her representative a supplemental statement of the case and return the case to the Board.

The Appellant has the right to submit additional evidence and argument on the claims the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
George E Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs