Citation Nr: 1338754 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 09-30 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Eligibility for Dependents' Educational Assistance (DEA) under 38 U.S.C.A., Chapter 35. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to October 1969. He died in May 2007. The appellant claims as his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In July 2011, the Appellant testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record. This case was previously before the Board in January 2012, wherein the appellant's claims for accrued benefits were denied, and the aforementioned claims were remanded for additional due process considerations and development, which was completed. The RO obtained the requested medical opinion, and the case was returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 2. The Veteran did not have a disease that is presumed to be service connected in veterans exposed to Agent Orange. 3. At the time of death, the Veteran was in receipt of service connection for residuals of right hand distal fifth metacarpal fracture, residuals of left shoulder shell fragment wound, and malaria, each rated noncompensable. 4. Colon cancer was the primary cancer that caused the Veteran's death. 5. Colon cancer did not manifest during service, a malignant tumor did not manifest within the one year presumptive period, and colon cancer was not related to anything in service. 6. The Veteran was not in receipt of or entitled to receive a 100 percent rating prior to death. 7. Service-connected disabilities played no role in the cause of death. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause or materially contribute to death. 38 U.S.C.A. §§ 1110, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2013). 2. The requirements for basic eligibility for DEA under Chapter 35, Title 38, United States Code, have not been met. 38 U.S.C.A. §§ 3501, 3510 (West 2002); 38 C.F.R. §§ 3.807, 21.3021 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As this appeal concerns a claim for service connection for the cause of the Veteran's death, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a dependency and indemnity compensation (DIC) claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished). In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in July 2007 and June 2011, to the appellant. These letters satisfied the requirements of Hupp by notifying the appellant of the Veteran's service-connected conditions, as well as the evidence and information to substantiate her claim for the cause of the Veteran's death on the basis of a service-connected disorder and on the basis of a disorder that is not yet service-connected. The letters also provided the legal criteria for entitlement to DEA. The letters also informed her of her and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist an appellant with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). The claims file contains the Veteran's available service treatment records, reports of private post-service treatment, and the appellant's own statements in support of her claims. The Federal Circuit has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is "necessary to substantiate the claim," and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. Here, a medical opinion was obtained responsive to the claim for service connection of the Veteran's death. The opinion was conducted by a medical professional, following a thorough review of the claims file. The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the appellant's claim for service connection of the cause of the Veteran's death. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion has been met. The Board has reviewed the appellant's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the appellant's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection for Cause of Death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2013). A veteran's death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected 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. 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. 38 C.F.R. § 3.312(b) (2013). A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a veteran's death for compensation purposes, 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. 38 C.F.R. § 3.312(c)(1) (2013); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). As will be discussed below, the evidence does not reflect that the Veteran has been diagnosed as having any of the diseases presumed service connected in veterans exposed to Agent Orange. He is therefore not entitled to service connection on a presumptive basis due to his exposure to Agent Orange. The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumor, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 adenocarcinoma is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As an initial matter, the Board notes that, the Veteran engaged in combat while in service, and was a recipient of the Combat Action Ribbon and Purple Heart. The Veteran had service in Vietnam. As such, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are potentially applicable. However, the appellant does not claim that the Veteran's colon cancer was the result of combat with the enemy; she contends that his death from colon cancer is due to Agent Orange. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. At the time of his death, the Veteran was in receipt of service connection for residuals of right hand distal fifth metacarpal fracture, residuals of left shoulder shell fragment wound, and malaria, each rated noncompensable. The Veteran died in May 2007. The death certificate indicates that the primary, and only, cause of death, was metastatic colon cancer. There is no evidence of colon cancer in service. Service treatment records do not contain any notations regarding the colon and the September 1969 separation examination report indicates that all systems were normal. Moreover, on an October 1970 VA examination, the Veteran indicated that he had no complaints and the only diagnoses were malaria, relapsing, historical, and malnutrition. On a January 1985 VA Agent Orange examination, the Veteran indicated that he had suffered from frequent episodes of severe upper abdominal pain since separation from service, but did not have problems with diarrhea or constipation. The Veteran also noted rare blood in his stool. He denied a history of cancer. He expressed his belief that his abdominal pain was due to Agent Orange exposure. Examination, including of the abdomen and rectum, was normal. The diagnosis was abdominal pain of unknown etiology. More recently, private treatment records, including a March 2007 letter from Dr. Yee, indicate that the Veteran was diagnosed with metastatic colon cancer in September 2006. Dr. Yee also wrote in a September 2006 treatment note that, "Agent Orange could have contributed to his current cancer, although certainly skin cancers and head and neck cancers are more tied with exposure to this agent than colonic malignancy." The September 2006 pathology report stated that the Veteran had moderately differentiated invasive adenocarcinoma of the sigmoid colon with metastasis. Dr. Yee also noted in a March 2007 letter that it was unusual for a 57 year old man such as the Veteran to develop metastatic colon cancer. The Board observes that the Veteran's Social Security records were obtained. The Veteran received Social Security disability benefits due to his colon cancer. The associated medical records pertained to the treatment and diagnosis of colon cancer. In March 2012, a VA medical opinion was obtained. The report states that the Veteran's claims file was fully reviewed. The VA physician noted that the Veteran's service treatment records did not indicate treatment for abdominal pain or colon cancer. The VA physician noted that the Veteran was treated in January 1985 for abdominal pain of unknown etiology; the Veteran reported a history of severe upper abdominal pain, in the epigastric area, without nausea, vomiting, diarrhea, or constipation, and flexible sigmoidoscopy was normal. The VA physician related the findings regarding the diagnosis and treatment of the Veteran's colon cancer from diagnosis in September 2006 through Dr. Yee's March 2007 reports; to reiterate, the Veteran was diagnosed with advanced metastatic adenocarcinoma of the colon in September 2006 and died in May 2007. The VA physician also related the Veteran's history of alcoholism, lower abdominal pain in the months prior to his diagnosis with colon cancer, and family history of cancer, as reported in his private treatment records. The VA physician also acknowledged the Veteran's service in Vietnam and presumed Agent Orange exposure. The VA physician opined that the Veteran's colon cancer was less likely than not (less than 50% probability) caused by or permanently and abnormally worsened (aggravated) by the Veteran's exposure to Agent Orange during his service in Vietnam. The VA physician further opined that the Veteran's colon cancer did not have its onset during his active service, and was not otherwise due to, related to, or aggravated by any event, injury, illness, or circumstance associated with his service. The VA physician explained that there is no relationship between gastrointestinal cancers and herbicidal agents. The VA physician also opined that the Veteran's colon cancer was unrelated to the Veteran's abdominal complaints in 1985 or to the Veteran's service; the VA physician stated that the Veteran's colon cancer could not have started while the Veteran was in service. The VA physician explained that the Veteran denied a history of cancer at that time, did not have symptoms localized to the same area where his cancer was located in 2006, had a normal sigmoidoscopy at the time of the 1985 complaints, and that the abdominal complaints were not the same (in 1985, his complaints were epigastric, or upper gastrointestinal; in 2006, he complained of constipation, which was lower gastrointestinal). The VA physician also noted that the Veteran's service treatment records did not show abdominal complaints. Additionally, the VA physician addressed Dr. Yee's contentions, and responded that the medical literature indicates that 90 percent of invasive colon cancers are diagnosed in people over the age of 50 at diagnosis; the VA physician stated that colon cancer at age 57 is not rare, unexpected, or unusual. The VA physician also pointed out that the Veteran had a history of alcoholism and tobacco use, both of which are known carcinogens directly implicated in the formation of gastrointestinal tumors, even where the use of these substances has been discontinued. The VA physician also stated that he reviewed the appellant's claim with a pathologist, who concurred that the medical literature and published studies do not support a link between gastrointestinal cancers and Agent Orange exposure. Upon careful and thorough consideration of the evidence of record, the Board finds that entitlement to service connection for the cause of the Veteran's death cannot be granted in this case. As noted above, the evidence thus indicates that colon cancer did not manifest in service, a malignant tumor of the colon did not manifest within the one year presumptive period, and colon cancer did not manifest for many years thereafter. Post-service treatment records and the Veteran's death certificate do not establish that the metastatic colon cancer that caused the Veteran's death is related to the Veteran's presumed in-service herbicide exposure or in any other way to his active duty service. As he served in Vietnam, the Veteran is presumed to have been exposed to Agent Orange. The immediate and only cause of the Veteran's death listed on the death certificate is colon cancer. Colon cancer is not one of the diseases for which veterans presumed exposed to Agent Orange are entitled to service connection on a presumptive basis. See 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e). However, the lack of availability of service connection on a presumptive basis for a particular disease does not preclude consideration of entitlement to service connection for that same disease on a direct basis. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.304(d). As to the assertions of the appellant of her belief that the Veteran's colon cancer was related to Agent Orange, while lay statements are competent as to some matters of diagnosis and etiology, cancer is the type of medical matter as to which the courts have specifically found lay witnesses are not competent to testify. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2) ; see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In particular, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308 -09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder). The Board is sympathetic to the appellant's sincere belief that the Veteran's death was in some way related to his active duty service. Nonetheless, there is no indication that she has received any medical training or has had medical experience sufficient to render her competent to render such an opinion. Here, the Board has a clear medical opinion finding that the Veteran's metastatic colon cancer is unrelated to the Veteran's service, including his presumed Agent Orange exposure due to service in Vietnam. The Board acknowledges that there is positive and negative evidence. The Board is presented with the lay pleadings of the appellant, and the September 2006 and March 2007 statements from Dr. Yee, but finds that these statements, the positive medical evidence, to be of little probative value. The Board also notes that a close reading of Dr. Yee's statements establishes that the Veteran's treating providers did not actually establish that the Veteran's colon cancer was causally related to the Veteran's service, including presumed Agent Orange exposure, or any of his service-connected disabilities. In this regard, the Board notes that Dr. Yee merely discussed the possibility of a relationship between Agent Orange exposure and certain cancers, as well as the Veteran's age at diagnosis. There is no evidence to establish the presence of an abnormality, disease or pathology during service which is causally related to the Veteran's death from metastatic colon cancer. To the contrary, the March 2012 VA physician found that, as the Veteran's colon cancer did not develop until many years after service, it was not likely related to the Veteran's service; the VA physician found that the Veteran's exposure to Agent Orange did not cause or aggravate his colon cancer, and that the Veteran's colon cancer was not otherwise due to, related to, or aggravated by any event, injury, or illness of the Veteran's military service. The VA physician also found that there was no association between the Veteran's 1985 complaints of abdominal pain and his 2006 diagnosis of colon cancer. The VA physician also noted that there is no association between gastrointestinal cancers and Agent Orange exposure in any of the medical literature, but there was an association between the Veteran's age and his use of alcohol and tobacco, and metastatic colon cancer. This opinion is reasoned and consistent with the actual factual record. We find this opinion to be highly probative. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). Based upon the foregoing, service connection for the cause of the Veteran's death may not be granted and this appeal is denied. Given the absence of any evidence of the Veteran's terminal metastatic colon cancer for many years following separation from service, and in the absence of any competent medical evidence that this fatal disease is related to an in-service injury or disease, including Agent Orange exposure, the preponderance of the evidence is against the claim for service connection. There is no doubt to be resolved, and service connection for the cause of the Veteran's death is not warranted. Regarding the appellant's alternative claim that the Veteran's death from metastatic colon cancer is somehow related to his service-connected malaria, the Board finds that there is simply no such relationship between the Veteran's malaria and his death from colon cancer. The appellant has provided no medical evidence suggestive of such a link, and there is nothing in the claims file to suggest such a link; the appellant has merely posited another theory of entitlement, one without a basis. An appellant is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such a case such at this. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, there is no competent evidence that any service connected disability played any role in the cause of death. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the appellant's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Dependents' Educational Assistance (DEA) Educational assistance allowance under Chapter 35, Title 38, United States Code may be paid to a surviving spouse or child of a veteran who was permanently and totally disabled due to a service-connected disability at the time of the veteran's death, who died in service, or who died of a service-connected disability. 38 U.S.C.A. § 3501; 38 C.F.R. § 3.807. In this case, service connection has not been established for the cause of the Veteran's death, nor was the Veteran permanently and totally disabled due to any service-connected disabilities at his death. Therefore, the appellant lacks basic eligibility for Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. 38 U.S.C.A. § 3501 (West 2002); 38 C.F.R. §§ 3.807(a), 21.3021 (2013). In light of the Board's decision with regard to the claim for service connection for cause of death, the Board finds that the appellant's claim is without legal merit; thus, it should be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for the cause of the Veteran's death is denied. Eligibility for Dependents' Educational Assistance under Chapter 35, Title 38, United States Code, is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs