Citation Nr: 1337915 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-48 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the Veteran's cause of death. ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had recognized service in missing status on January 10, 1943, in no casualty status from January 11, 1943, to March 10, 1943, in missing status from March 11, 1943, to March 15, 1945; and as a recognized guerrilla from March 16, 1945, to February 14, 1946. The Veteran died in February 1981, and the appellant seeks surviving spouse benefits. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In May 2013, the Board reopened this claim and remanded to obtain a medical opinion. In June 2013, the RO obtained the opinion and a review of that opinion indicates that substantial compliance with the remand directives. Dyment v. West, 13 Vet. App. 141 (1999). 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 & Supp. 2013). FINDING OF FACT 1. The Veteran died in February 1981. The certificate of death lists the cause of death as pancreatic malignancy due to nephrolithiasis. 2. At the time of the Veteran's death, service connection was only in effect for nephrolithiasis. 3. The Veteran's service-connected nephrolithiasis did not cause or contribute substantially or materially to cause his death. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specific to claims for Dependency and Indemnity Compensation (DIC) benefits, which include service connection for the Veteran's cause of death, VA's notice requirements 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 needed to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information needed to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In this case, the appellant has not alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant was notified in an August 2009 letter of the criteria for establishing service connection for the Veteran's cause of death, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. She also was notified of how VA determines effective dates if benefits are awarded. That letter addressed all notice elements and predated the initial adjudication by the RO in December 2009. The Board notes that the appellant was not specifically informed of the condition for which the Veteran was service-connected at the time of his death. However, the appellant has asserted that the Veteran's service-connected nephrolithiasis caused or contributed to his death. Thus, the Board finds that she had actual knowledge of the sole condition for which he was service-connected. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Further, as she has consistently asserted that the Veteran's nephrolithiasis caused or contributed to his death, the Board finds that she is not prejudiced by the omission of specific notice as to establishing service connection for the Veteran's cause of death based on a condition not yet service-connected. Thus, the Board finds that no prejudice to the appellant will result from the adjudication of this appeal. Rather, remanding this appeal back to the RO for further notice would be an essentially redundant exercise that would result only in additional delay with no benefit to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993); Sabonis v. Brown, 6 Vet. App. 426 (1994). VA also has a duty to assist the appellant in the development of the claim. That duty includes assisting her in the procurement of service medical records and pertinent treatment records and providing an opinion when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). VA obtained medical opinions in December 2009 and June 2013 to determine the nature and etiology of the Veteran's cause of death. 38 C.F.R. § 3.159(c)(4) (West 2002 & Supp. 2013). When VA provides an examination or obtains an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the opinions to be thorough and adequate upon which to base a decision on the claim. The examiners reviewed the Veteran's claims file and provided the information needed to decide the claim. Brief but relevant opinions were provided. The Board finds the opinions to be adequate, as they were based on a full reading of the records in the claims file as well as the appellant's statements. The Board finds that no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection for the Cause of Death To establish service connection for the veteran's cause of death, the evidence of record must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to the veteran's death. 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 to the cause of death. For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of the veteran's death. It is not sufficient to show that it casually shared in producing the veteran's death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2013); 38 C.F.R. § 3.312 (2013). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2013). Service connection is permitted not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran died in February 1981. The certificate of death lists the cause of death as pancreatic malignancy due to nephrolithiasis. At the time of the Veteran's death, service connection was only in effect for nephrolithiasis. The appellant contends that the Veteran's service-connected nephrolithiasis caused or contributed to his death. In an April 2009 statement, a private physician noted that the Veteran was service-connected for nephrolithiasis and chronic pancreatitis, and that those disabilities caused the pancreatic cancer that resulted in his death. In a December 2009 report, a VA examiner noted the Veteran's certificate of death and the above physician's statement, but stated that nephrolithiasis is not a known cause of or a risk factor for pancreatic cancer. The examiner cited the risk factors of pancreatic cancer as cigarette smoking, obesity, diabetes mellitus, helicobacter pylori infection, and chronic pancreatitis. The examiner commented that service connection was not in effect for pancreatitis and the service treatment records showed a normal endocrine system. In a December 2011 statement, the physician who signed the certificate of death stated that the Veteran's nephrolithiasis produced debilitating effects on his other organs, including the pancreas, and indicated that the nephrolithiasis led to the pancreatic cancer that resulted in his death. In a June 2013 report, a VA examiner noted the above physician's statement, but stated that complications of nephrolithiasis include the obstruction of the urinary tract, leading to pain and infection, and, if severe, kidney failure. The examiner stated that, while an infection due to nephrolithiasis may lead to sepsis, it will not involve the pancreas. The examiner also noted that digestive enzymes and insulin do not cause stone formation anywhere in the body. The examiner then concluded that the pancreatic cancer that caused the Veteran's death was not caused or aggravated by the service-connected nephrolithiasis. Considering the above, the Board notes that there are conflicting medical opinions on whether the Veteran's service-connected nephrolithiasis caused or contributed substantially or materially to cause his death. While one private physician opined that the Veteran's service-connected disabilities caused the pancreatic cancer that resulted in his death, that physician was under the wrong impression that service connection was in effect for both nephrolithiasis and chronic pancreatitis. Therefore, that opinion is of little to no probative value. Hayes v. Brown, 5 Vet. App. 60 (1993). While another private physician opined that the debilitating effects of nephrolithiasis led to the pancreatic cancer, the Board attaches more persuasive value to the VA opinions that indicates that opinion is not supported by the current medical knowledge base. In opining that the Veteran's service-connected nephrolithiasis did not cause or contribute substantially or materially to cause his death, a VA examiner stated that nephrolithiasis is not a known cause of or a risk factor for pancreatic cancer. The examiner cited the risk factors and nephrolithiasis was not one of them. Then, in opining that the Veteran's pancreatic cancer that resulted in his death was not caused or aggravated by his service-connected nephrolithiasis, another VA examiner cited the known complications of nephrolithiasis and they did not involve the pancreas. As the VA examiners based their opinions on the current medical knowledge base on pancreatic cancer and nephrolithiasis, respectively, the Board finds their opinions to be of greater probative value than those of the private physicians. Hayes v. Brown, 5 Vet. App. 60 (1993). The Board finds that the VA examiner's opinions are more persuasive because they are based on a review of the medical knowledge base and recitation of medical principles. Thus, the Board finds that the Veteran's service-connected nephrolithiasis did not cause or contribute substantially or materially to cause his death. The record also does not show, and the appellant does not contend, that the Veteran's pancreatic cancer that led to his death had its onset during or is causally related to active service. It was not found until many years after separation from service. While not dispositive, the passage of many years between discharge from active service and any medical complaints or documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board finds that the weight of the competent, probative evidence is against establishing a link between the cancer and service. The December 2009 VA examiner noted that the Veteran's endocrine function during service was normal. Lastly, the June 2013 VA examiner indicated that the Veteran's pancreatic cancer was not proximately due to, the result of, or aggravated by his service-connected nephrolithiasis. Thus, service connection for pancreatic cancer, to include as due to the service-connected nephrolithiasis, is not warranted. Furthermore, the statements of the appellant that the cancer was related to service or to the service-connected disability are not competent evidence because the appellant is not shown to have the medical training required to make such a medical opinion, which would require medical training. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board concludes that a disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. Therefore, service connection for the Veteran's cause of death is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the Veteran's cause of death is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs