Citation Nr: 1340148 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 11-05 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, Appellant's Son ATTORNEY FOR THE BOARD C. E. de Jong, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1956 to January 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the RO in Philadelphia, Pennsylvania, on brokerage for the RO in Roanoke, Virginia, which retains original jurisdiction. The June 2010 rating decision denied service connection for the cause of the Veteran's death and denied DIC benefits under 38 U.S.C.A. § 1318. In February 2012, the appellant and her son testified at a video conference hearing held before the undersigned Veterans Law Judge. A copy of the transcript is of record. Following the hearing, the appellant submitted additional evidence and a waiver of initial RO consideration of such evidence. 38 C.F.R. § 20.1304(c) (2013). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" and VBMS systems to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran died on October [redacted], 2009, as the result of metastatic small cell lung cancer and chronic obstructive pulmonary disease (COPD). 2. During his lifetime, the Veteran was service connected for status post fusion of L3-L4 and L4-L5, scars associated with status post fusion of L3-L4 and L4-L5, bilateral peripheral neuropathy of the lower extremities, tinea corporis, and hemorrhoids. The Veteran was granted a total disability rating based on individual unemployability due to service-connected disabilities from July 24, 2000. 3. Lung cancer and COPD were not present during the Veteran's period of active service, continuously present since service, or manifest to a compensable degree within one year of service separation, and are not otherwise directly related to an incident of service. 4. The Veteran's service-connected disabilities did not cause or aggravate any of the medical conditions that caused his death, nor did they cause or contribute substantially or materially to cause the Veteran's death. 5. The Veteran was not in receipt of a total disability rating for 10 continuous years prior to his death. 6. The Veteran was not continuously rated as totally disabled for the five-year period after his discharge from service. 7. The Veteran was never a prisoner of war. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110 , 1131, 1310, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303 , 3.307, 3.309, 3.310, 3.312 (2013). 2. The criteria for entitlement to DIC benefits under 38 U.S.C.A. § 1318 are not met. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2013); 38 C.F.R. § 3.22 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Cause of Death When a veteran dies of a service-connected disability, the veteran's surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.5(a), 3.312 (2013). The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service caused or contributed substantially or materially to the veteran's death. The issue involved will be determined by the 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. 38 C.F.R. § 3.312(a). Service connection may be established for the cause of a veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) ; see 38 U.S.C.A. § 1310 ; see also 38 U.S.C.A. §§ 1110 and 1112 (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that 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). A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1) . See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110 and 1131; 38 C.F.R. § 3.303(a). The appellant contends that service connection for the cause of the Veteran's death is warranted because the medications the Veteran was taking for his service-connected disabilities caused his lung cancer. The appellant also asserts entitlement to DIC benefits under 38 U.S.C.A. § 1318 because the Veteran was rated totally disabled for several years prior to his death. The Board must address several threshold questions before turning to her contentions. First, the Board must consider whether the cause of death was service-connected. If not, then the Board must consider whether the cause of death could have been service-connected. If not, then the Board must consider whether the Veteran's actually service-connected disabilities caused or contributed to the Veteran's death. The Certificate of Death states that the Veteran died of metastatic small cell lung cancer and COPD on October [redacted], 2009. Metastatic small cell lung cancer was listed as the immediate cause of death. The Veteran was not service-connected for metastatic small cell lung cancer or COPD during his lifetime. The Veteran was service-connected for the following disabilities at the time of his death: status post fusion L3-L4 and L4-L5, rated as 60 percent disabling; scars associated with status post fusion L3-L4 and L4-L5, rated as 10 percent disabling; bilateral peripheral neuropathy of the lower extremities, each side rated as 40 percent disabling; hemorrhoids, rated as 10 percent disabling; tinea corporis, rated as 10 percent disabling. Service connection for the cause of the Veteran's death cannot be granted on the basis that his service-connected disabilities principally caused his death. 38 C.F.R. § 3.312. The appellant has not made any such allegation in the four years since the Veteran's death. The evidence of record does not otherwise suggest that any of the Veteran's service-connected disabilities directly caused his death. The death certificate did not list tinea corporis, hemorrhoids, peripheral neuropathy, or post status fusion L3-L4 and L4-L5 or associated scars among the causes of death. Furthermore, the death certificate did not list any type of skin condition, neurological condition, or back condition among the causes of death. The appellant asserted in her February 2011 formal appeal that the Veteran "died from many causes," including a heart attack, open heart surgery, a pacemaker, three back surgeries, diabetes, and a diabetic coma. However, there is no objective evidence of any causes of death other than metastatic small cell lung cancer and COPD. The Board also notes that of the conditions and procedures listed in the appellant's formal appeal, only the Veteran's three back surgeries relate to a condition for which the Veteran was service-connected (status post fusion L3-L4 and L4-L5, as well as associated scars). These facts do not support her claim. In light of the foregoing, the Board finds that none of the Veteran's service-connected disabilities was a principal cause of his death. The Board now turns to consider whether the causes of the Veteran's death could have been service-connected. Lung cancer is classified as a "chronic disease" listed under 38 C.F.R. § 3.309(a) ; therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). COPD is not classified as a "chronic disease" under 38 C.F.R. § 3.309(a) and therefore 38 C.F.R. § 3.309(b) is applicable only to the Veteran's lung cancer. See id. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as cancer, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. When the "chronic disease" standards are not met, service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The appellant does not contend, nor does the evidence of record suggest, that lung cancer was present during service, present continuously since service, or manifest within one year of separation. The Veteran's service treatment records do not show complaint, symptoms, treatment, or diagnosis of lung cancer or any type of lung condition. His January 1960 separation examination report indicates "normal" findings for the Veteran's lungs and chest. As a result, service connection for lung cancer as the cause of the Veteran's death as a "chronic disease" is not warranted. See Walker, 708 F.3d at 1337. As service connection for lung cancer as the cause of the Veteran's death as a "chronic disease" is not warranted, the three elements of direct service connection must be met in order to grant service connection for the cause of the Veteran's death for lung cancer as well as COPD. The Veteran had diagnoses of both metastatic small cell lung cancer and COPD for several months prior to his death, and thus the first element of a claim of service connection is met for both lung cancer and COPD. However, the second element is not met for either lung cancer or COPD and as such neither claim may be granted. As noted above, the Veteran's service treatment records do not show complaint, symptoms, treatment, or diagnosis of any type of lung condition. Furthermore, the Veteran's January 1960 separation examination report shows "normal" findings for the Veteran's lungs and chest. The Veteran's service treatment records show that the only condition possibly related to the respiratory system that the Veteran complained of during active service was a sore throat. The Veteran presented with complaints of a sore throat on several occasions, and the Veteran was provided multiple diagnoses of a common cold and one diagnosis of strep throat. The Veteran's separation examination report also shows "normal" findings for the Veteran's mouth and throat, and does not indicate any complaints, symptoms, or findings related to a respiratory or lung condition. No other evidence relating to in-service incurrence or aggravation of the Veteran's lung cancer or COPD has been submitted. As there is no evidence that either the Veteran's lung cancer or his COPD was incurred or aggravated during his active service, the second element of a claim of service connection is not met for either claim and neither claim may be granted. The Board concludes that the Veteran's lung cancer and COPD were not disabilities for which service connection could have been granted. Thus, service connection for the cause of the Veteran's death cannot be granted directly for these disabilities. 38 C.F.R. § 3.312. None of the Veteran's service-connected disabilities was a principal cause of his death, and the Veteran's lung cancer and COPD were not disabilities for which service connection could have been granted. The Board now turns to the last remaining theory of the case and the appellant's contentions that the Veteran's service-connected disabilities contributed to the cause of his death. The appellant's contentions are not that the Veteran's lung cancer or COPD was directly related to service. Rather, the appellant contends that the numerous medications the Veteran took, some of which were for his service-connected disabilities, caused his lung cancer. In her February 2011 formal appeal, the appellant asserted that the Veteran ended up getting cancer "from all the medications for so many problems, which started from a back injury he received in Canada while in service." In May 2011, the appellant submitted a list of the Veteran's active medications in December 2006, along with a statement that she believed the medications listed were only some of the medications that caused the Veteran's lung cancer. At her February 2012 hearing, the appellant contended that the Veteran was on a medication regimen for his service-connected back disability for many years, and she believed that these medications led to the Veteran getting cancer. In May 2012, the appellant submitted a list of the Veteran's active medications dating from 1997 to the time of the Veteran's death in 2009. The appellant did not submit any medical evidence showing a relationship between the Veteran's medications and lung cancer, nor does the record otherwise contain any evidence of a relationship between the Veteran's medications, some of which were for his service-connected disabilities, and his lung cancer. In this regard, the Board must note a VA medical record from June 2009, at the start of the Veteran's treatment for lung cancer, noted that the Veteran had a 57 pack a year history of smoking, and that he stopped smoking only when his lung cancer was diagnosed. The appellant has not asserted at any time that she has any medical training or expertise, and as such she will be considered a layperson. As a layperson, she is unfortunately unable to provide a complex medical opinion on the issue of whether the Veteran's medications caused his lung cancer. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). There is no competent evidence of record to suggest that the Veteran's medications caused his lung cancer. The competent medical evidence of record, contained in the Veteran's VA treatment records, indicates that the Veteran's lung cancer was related to his long history of smoking and does not indicate any relationship between the Veteran's medication regimen and his lung cancer. Thus, the competent evidence of record related to the cause of the Veteran's lung cancer does not support the appellant's theory. As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." Service connection for the cause of the Veteran's death is not warranted. See 38 C.F.R. § 3.312. The Board finds that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Entitlement to DIC Benefits under 38 U.S.C.A. § 1318 All § 1318 bases for an award of DIC are an intrinsic part of a DIC claim in those cases in which service connection for the cause of the Veteran's death is denied and the Veteran had a totally disabling service-connected condition at the time of death. Timberlake v. Gober, 14 Vet. App. 122, 134-35 (2000). Dependency and indemnity compensation benefits may be paid to a deceased veteran's surviving spouse in the same manner as if the veteran's death is service-connected when, in pertinent part, the following conditions are met: (1) the veteran's death was not caused by his or his own willful misconduct and either the veteran was in receipt of or was entitled to receive compensation at the time of death for service-connected disability that was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 years or more immediately preceding death or, if totally rated for a lesser period, the veteran was so rated continuously for a period of not less than five years from the date of the veteran's discharge from active duty; or (2) the veteran would have been entitled to receive a 100 percent disability rating for such time period but for factors such as the receipt of military retired pay or clear and unmistakable error in a final rating or Board decision. 38 U.S.C. § 1318 (West 2002). A VA regulation, 38 C.F.R. § 3.22 (2012), provides, in relevant part, that: (a) Even though a veteran died of non- service-connected causes, VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected, if: (1) The veteran's death was not the result of his own willful misconduct, and (2) At the time of death, the veteran was receiving, or was entitled to receive, compensation for service- connected disability that was: (i) rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or (ii) rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death. (b) For purposes of this section, "entitled to receive" means that at the time of death, the veteran had service- connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran; (3) The veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error [CUE] in a VA decision concerning the issue of service connection, disability evaluation, or effective date. In this case, it is apparent that the criteria for the award of DIC benefits under 38 U.S.C.A. § 1318 are not met by the evidence of record. The record does show that the Veteran died of natural causes and not as the result of willful misconduct. At the time of his death, the Veteran was in receipt of a total disability rating based on individual unemployability due to service-connected disabilities. The effective date of this rating was July 24, 2000. The Veteran died in October 2009; his 100 percent rating had been in effect for only nine years and three months, not the necessary ten years preceding death. The Veteran was discharged from service in 1960, and was not awarded a total disability rating until 2000, forty years after his release from service. He was not continuously rated as totally disabled since the time of his discharge from service. Therefore, the appellant is not eligible for DIC benefits under 38 U.S.C.A. § 1318(b)(1) and 38 C.F.R. §§ 3.22(a)(1), (2)(i) or (ii). The Board has reviewed the appellant's submissions and can detect no challenge to a rating decision, issued during the Veteran's life, which failed to award total disability compensation due solely to CUE concerning the issue of service connection, disability evaluation, or effective date. The appellant is not eligible for DIC benefits under 38 U.S.C.A. § 1318(b)(2) and 38 C.F.R. §§ 3.22(b)(3) . Alternative entitlement is available for former prisoners of war (POW). See 38 U.S.C. § 1318(b)(3). The Veteran's service record does not show that he was a POW during his period of active duty. DIC benefits are not available to the appellant under 38 U.S.C. § 1318(b)(3) and 38 C.F.R. §§ 3.22(a)(1), (2)(iii) . The Board need not review whether there is any other disorder of record that could have been service-connected and then assigned a total rating for the appropriate period of time so as to warrant the award of DIC benefits under 38 U.S.C.A. § 1318. Rodriguez v. Peake, 511 F.3d 1147, 1156 (Fed. Cir. 2008); Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009); see also 38 C.F.R. § 3.22. Excepting the possibility of CUE in a rating decision during the Veteran's lifetime, arguments that the Veteran could or should have received a total rating for the appropriate period during life are known as "hypothetical entitlement." Id. The January 21, 2000, finalization of VA's modification of 38 C.F.R. § 3.22 prevented any consideration of "hypothetical entitlement" claims, including any claims pending on that date. See Tarver, supra. Therefore, consideration of "hypothetical entitlement" to DIC benefits under 38 U.S.C.A. § 1318 is legally precluded in this case. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Again, the Board has considered the benefit of the doubt rule for this claim, but as the preponderance of the evidence is against the claim for DIC benefits under 38 U.S.C.A. § 1318 , the evidence is not in equipoise, and there is no basis to apply it. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert, supra. III. Duties to Notify and Assist With respect to the appellant's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Prior to initial adjudication of the appellant's DIC claim, a December 2009 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1) ; Quartuccio, at 187. In the context of a claim for cause of death benefits, adequate 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 cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected in order to satisfy the first Quartuccio element. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The December 2009 letter, as well as an April 2011 letter, contained such notice. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service personnel and treatment records are in the file. The Veteran's VA medical records are also in the file. The appellant specifically stated in her December 2009 statement that no private providers treated the Veteran in the period immediately following his death. At her February 2012 hearing, the appellant testified that the Veteran had been treated by a private provider when they had first moved to Roanoke, and that the provider was deceased. The appellant stated that she was going to attempt to obtain the Veteran's records from that provider, and the undersigned granted the appellant an additional time to obtain such records. Although the appellant did submit a list of the Veteran's medications following her hearing, she did not submit any other records. The appellant has not identified or referenced any outstanding records that she wanted VA to obtain or that she felt were relevant to her claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In cause of death cases, a medical examination or opinion is necessary if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service connected disability and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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 v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008). The Board finds that the duty to provide an examination or opinion is not triggered based on any possible theory of entitlement. The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the Veteran's claimed disability is related to military service is the conclusory generalized lay statements of the Appellant, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. The appellant alleges that the numerous medications the Veteran was taking, some of which were for service-connected disabilities, caused his lung cancer. However, once again, the appellant has submitted no evidence other than her assertions to support this theory, and no objective evidence supporting this theory is otherwise of record. As there is no evidence of record that the appellant's theory is plausible, the Board finds that there is no reasonable possibility that a medical opinion would assist the appellant in substantiating her claim. Thus, the duty to provide an examination or opinion under 38 U.S.C.A. § 5103A(a) is not triggered by the appellant's contentions. See Wood, supra. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC benefits under 38 U.S.C.A. § 1318 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs