Citation Nr: 1337699 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-19 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for metastatic renal cell carcinoma, claimed as due to herbicide exposure, for the purposes of accrued benefits. 2. Entitlement to service connection for the cause of the Veteran's death under 38 U.S.C. § 1310. 3. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1983. Service in the Republic of Vietnam is indicated by the record. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the appellant's claims. In April 2013, the appellant presented sworn testimony during a personal hearing in St. Petersburg, Florida, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file The Board observes that the July 2008 rating decision also denied the appellant's claim of eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35. The RO addressed this claim in its March 2010 statement of the case (SOC). The appellant filed a substantive appeal in April 2010; however, she specifically referenced only the issues listed above, she did not refer to the Dependents' Educational Assistance claim. An appeal as to the claim of eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 has therefore not been perfected. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.202 (2013) (if the SOC addressed multiple issues, the substantive appeal must either indicate that all issues are being appealed or it must specifically identify the issues being appealed). Accordingly, the issue of eligibility for Dependents' Educational Assistance is not in appellate status and will be addressed no further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (the request for appellate review is completed by the claimant's filing of a substantive appeal after a SOC is issued by VA). FINDINGS OF FACT 1. The Veteran had no claims pending at his death. 2. The Veteran died in January 2008 at the age of 62. The death certificate listed the Veteran's cause of death as metastatic carcinoma and renal cell carcinoma. 3. At the time of the Veteran's death, he was service-connected for arthritis of the cervical spine and left ankle, evaluated as 10 percent disabling from August 1, 1983. 4. The record demonstrates that the Veteran served in the Republic of Vietnam from December 1967 to December 1968. Exposure to Agent Orange is therefore presumed. 5. The competent evidence of record contains sufficient medical nexus evidence to establish that the Veteran's in-service exposure to Agent Orange was a contributory cause of his death. CONCLUSIONS OF LAW 1. The criteria for accrued benefits have not been met. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(a) (2013). 2. Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). 3. The appellant's claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318 is dismissed as moot. 38 U.S.C.A. § 1318 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2010)), which imposes obligations on VA in terms of its duty to notify and to assist claimants. The Board has considered this legislation and finds that, given the favorable action taken herein with regard to the claim of service connection for the cause of the Veteran's death, no further discussion of these VCAA requirements with regard to this issue is required. Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). With respect to the accrued benefits claim, the Board finds that the VCAA's notice and duty to assist provisions are not applicable to the current appeal because, as discussed below, there is no legal basis for the appellant's claim. Accordingly, no further notification and/or assistance is required under the VCAA. VAOPGCPREC 5-2004 (June 23, 2004). II. Accrued benefits Upon the death of a veteran, certain persons shall be paid periodic monetary benefits to which the veteran was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). There is no basis for an accrued benefits claim, unless the veteran from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). In this matter, the appellant has not made any specific contentions regarding entitlement to accrued benefits. An April 1984 rating decision granted the Veteran entitlement to service connection for arthritis of the cervical spine and left ankle and denied service connection for lumbosacral strain and a right arm disability. The next chronological document in the claims file is the Veteran's death certificate, filed by the appellant in March 2008 in pursuit of the pending claims. Accordingly, the claims file does not contain any documents that could be construed as a formal or informal claim for benefits that were filed prior to the Veteran's death, but not adjudicated. Therefore, the Board finds that there was no pending claim at the time of the Veteran's death. As the Veteran had no claims pending at the time of his death, the criteria for entitlement to accrued benefits are not met. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions are not for application. 38 U.S.C.A. § 5107(b). III. Cause of death under 38 U.S.C. § 1310 In order to establish service connection for the cause of a veteran's death, the medical evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. See 38 U.S.C.A. § 1310 (West Supp. 2012); 38 C.F.R. § 3.312 (2013). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. See 38 C.F.R. § 3.312(a) (2013). The 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. See 38 C.F.R. § 3.312(b) (2013). A contributory cause of death is inherently one not related to the principal cause. In determining whether the 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 casually shared in producing death, but rather it must be shown that there was a causal connection. See 38 C.F.R. § 3.312(c)(1) (2013); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. See 38 C.F.R. § 3.312(c)(2) (2013). However, service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of the 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. See 38 C.F.R. § 3.312(c)(3) (2013). The regulations also state that 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 affected a vital organ and was of itself of a progressive and debilitating nature. See 38 C.F.R. § 3.312(c)(4) (2013). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 C.F.R. § .307(a)(6)(iii) (2013). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e) (2013). In Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994), the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. As such, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, (see 38 C.F.R. § 3.309(e)), but also must determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 (West Supp. 2012) and 38 C.F.R. § 3.303(d) (2013). In this matter, the appellant argues that service connection for the cause of the Veteran's death is warranted on the basis that the Veteran developed metastatic renal cell carcinoma as a result of his exposure to Agent Orange during his Vietnam service. See, e.g., the April 2013 Board hearing transcript. She has pointed to no other possible in-service cause, and the Board has identified none after a thorough review of the record. For the reasons and bases set out below, the Board has determined that the weight of the evidence supports a finding that the Veteran's cause of death was related to his in-service herbicide exposure. In order to establish service connection for the cause of the Veteran's death, there must be: (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the Veteran's death. Cf. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). It is undisputed that the Veteran died in January 2008 at the age of 62. See the Veteran's certificate of death dated January 2008. Concerning in-service incurrence or aggravation of disease, the Death Certificate listed the Veteran's cause of death as metastatic carcinoma and renal cell carcinoma. Service connection was not in effect for these conditions at the time of the Veteran's death. The Veteran's service treatment records (STRs) are pertinently negative for any finding of cancer or tumors. In addition, renal cell carcinoma was initially identified in 2006, approximately twenty-five years after service. See the private treatment records dated April 2006. The presumptive provisions of 38 C.F.R. § 3.309(a) are therefore not for application. With respect to in-service injury, the injury claimed is exposure to herbicides. It is undisputed that the Veteran served in the Republic of Vietnam from December 1967 to December 1968. Accordingly, exposure to herbicides (namely, Agent Orange) is presumed from the record. See 38 U.S.C.A. § 1116(f) (West Supp. 2012). Turning to crucial question of nexus between the Veteran's cause of death and the presumed herbicide exposure, the Board initially notes that although certain cancers are listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e), the medical evidence shows that the Veteran was diagnosed with metastatic renal cell carcinoma, which is not so listed. Therefore, medical nexus may not be presumed as a matter of law. However, notwithstanding the inapplicability of the Agent Orange regulations, the Board is obligated to fully consider whether the Veteran's fatal metastatic renal cell carcinoma was the result of his active military service. See Combee, supra; see also Brock v. Brown, 10 Vet. App. 155 (1997) (holding that the rationale employed in Combee also applies to claims based on exposure to Agent Orange). Accordingly, the Board will move on to discuss whether service connection may be awarded on a direct basis (based on the Veteran's presumed exposure to herbicides). Here, the Board finds that the medical evidence in this case demonstrates that a contributory relationship existed between the in-service herbicide exposure and the Veteran's death. Specifically, in an April 2008 letter, the Veteran's treating oncologist, Dr. N.T. noted his 21 month battle with renal cell carcinoma, which eventually caused his death. Dr. N.T. then noted that the Veteran served in Vietnam where he was exposed to Agent Orange. Dr. N.T. opined that Agent Orange is associated with certain cancers including soft tissue sarcoma, non-Hodgkin's lymphoma, Hodgkin's lymphoma, and chronic lymphocytic leukemia; she also indicated that there is a suggestion that Agent Orange exposure may be linked with multiple myeloma, respiratory cancers, and prostate cancer. She then concluded: To date there is inadequate data to determine whether renal cell cancer is associated with Agent Orange exposure, however, it is certainly very possible that my patient's lengthy exposure to this agent resulted in his untimely death. [The Veteran] was an otherwise healthy man who did not drink or smoke. In a follow-up letter dated October 2008, Dr. N.T. noted that prior to the Veteran's diagnosis with renal cell carcinoma, "he was exceptionally healthy due to physical activities/training for marathons and long distance cycling." Dr. N.T. stated that she had reviewed a prior Board decision in which the Board granted an appellant's claim of entitlement to service connection for the cause of a veteran's death from renal cell carcinoma as due to in-service herbicide exposure. Dr. N.T. opined that "there are many similarities between the two veterans. Both were in Vietnam during the war and exposed to Agent Orange, both [STRs] contain no indication of renal disease or cancer, both contracted the disease many years after service - 1999 and 2006, and both underwent radical nephrectomy." She continued, that the differences appear to be the Veteran's five pack per year smoking history and quitting in 1970, and that his father died of lung cancer. Dr. N.T. then indicated that based upon the correspondences she received from the Veteran's family, "there w[ere] no cancers in the family except for [the Veteran's] father who smoked three packs per day for 59 years." She explained, "I do not believe [the Veteran's] five pack per year history of smoking is significant based on his stopping in 1970, 36 years after exposure to Agent Orange and his exceptional physical condition and health which enabled him to valiantly fight this disease for 21 months." She therefore concluded, "it is very possible and I add more likely than not that his lengthy exposure to Agent Orange contributed to his untimely death." The April 2008 and October 2008 opinions of Dr. N.T. appear to have been based upon clinical expertise, medical research and experience as well as thorough review of the Veteran's treatment records and thoughtful analyses of the Veteran's entire history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the 'factually accurate, fully articulated, sound reasoning' for an examiner's conclusion that contributes probative value to a medical opinion); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Accordingly, the April 2008 and October 2008 letters demonstrably articulate a substantial causal connection between the Veteran's in-service herbicide exposure and his death from metastatic renal cell carcinoma. See 38 C.F.R. § 3.312(c)(1) (2013); see also Gabrielson, supra. Thus, the competent medical evidence of record indicates the presumed herbicide exposure had at least a contributory effect on the cause of the Veteran's death. Moreover, there is no medical evidence of record which directly contradicts these private opinions. In sum, for the reasons and bases stated above, the Board concludes that the medical evidence is at least in equipoise as to whether the Veteran's death was causally related to his in-service herbicide exposure. Therefore, the appellant's claim of entitlement to service connection for the cause of the Veteran's death is granted. IV. DIC benefits under 38 U.S.C. § 1318 In general, under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased veteran's surviving spouse in the same manner as if the veteran's death is service-connected, even though the veteran died of non service-connected causes, if the veteran's death was not the result of his own willful misconduct, and at the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the veteran's release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former prisoner of war [POW] who died after September 30, 1999. See 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2013). In essence, 38 U.S.C. § 1310 and 38 U.S.C. § 1318 provide separate and alternative methods of obtaining VA death benefits. See, in general, Green v. Brown, 10 Vet. App. 111, 114-5 (1997). Because the Board has granted service connection for the cause of the Veteran's death under the provisions of 38 U.S.C. § 1310, the matter of the appellant's alternative claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is rendered moot. Accordingly, the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed as no benefit remains to be awarded and no controversy remains. Cf. Swan v. Derwinski, 1 Vet. App. 20, 22-23 (1990). ORDER Entitlement to accrued benefits is denied. Entitlement to service connection for the cause of the Veteran's death under 38 U.S.C. § 1310 is granted. The appellant's claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed as moot. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs