Citation Nr: 1340502 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-01 382 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of death of a veteran. 2. Entitlement to a service-connected burial allowance. REPRESENTATION Appellant is represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant is the surviving spouse of a deceased veteran (the Veteran) who had active service from September 1962 to September 1965. He died in March 2008. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the RO in Oakland, California. Also denied in the October 2008 decision were claims of entitlement to service connection for lung cancer and lymph node cancer, as well as a claim for Dependents' Educational Assistance eligibility. The notice of disagreement specified the issues of DIC and a service-connected burial allowance, but did not list any other issues. VA regulations specify: "If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified." 38 C.F.R. § 20.201 (2013). Accordingly, the other issues adjudicated in the October 2008 decision have not been appealed. In June 2011, the Board remanded this appeal for additional evidentiary development. It has since been returned to the Board for further appellate action. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. All notification and development needed to fairly adjudicate the appeal has been accomplished. 2. At the time of the Veteran's death, service connection was in effect for diabetes mellitus, bilateral hearing loss, and tinnitus. 3. The primary cause of death was metastatic squamous cell cancer of unknown primary origin. 4. The cause of the Veteran's death is not related to service, to included presumed herbicide exposure therein. 5. The Veteran's service-connected disabilities did not contribute substantially or materially to the Veteran's death, did not combine to cause his death, did not aid or lend assistance to the production of death, and did not have a material influence in accelerating death. CONCLUSIONS OF LAW 1. The criteria for DIC based on service connection for the cause of death of a veteran are not met. 38 U.S.C.A. §§ 1110, 1131, 1310, 1312, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.312 (2013). 2. The criteria for service-connected burial benefits are not met. 38 U.S.C.A. §§ 2302, 2307, 5107, 7104 (West 2002); 38 C.F.R. § 3.1600 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking DIC benefits based on a claim of entitlement to service connection for the cause of death of a Veteran. The appellant has put forward two alternative theories of etiology. On the VA form 9, she asserted that the Veteran was exposed to Agent Orange in service and that Agent Orange causes cancer. Thus, she relates the principal cause of death directly to service via the presumption of exposure to herbicides for Vietnam veterans. Alternatively, she asserts that the Veteran's service-connected diabetes mellitus contributed substantially or materially to cause the Veteran's death. 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 disability may be service connected if it results from an injury or disease incurred in, or aggravated by, military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal (primary) cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related thereto. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(b). Regarding the assertion that the Veteran's metastatic squamous cell cancer of unknown primary origin was caused by herbicide exposure in Vietnam, VA regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). Here, the Veteran's Vietnam service is acknowledged and it is therefore presumed that he was exposed to herbicides during service. Certain diseases are deemed associated with herbicide exposure, under VA law and shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e). The diseases include certain cancers, such as Hodgkin's disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, 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). The term "soft-tissue sarcoma" includes the following: adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), rhabdomyosarcoma, ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, malignant ganglioneuroma. As metastatic squamous cell cancer is not listed among the diseases presumed to be associated with herbicide exposure, the presumption of service connection does not attach notwithstanding the fact that the Veteran is presumed to have been exposed to herbicides. Service treatment records reveal that metastatic squamous cell cancer was not noted in service. All systems were clinically normal at service separation. The Veteran completed a report of medical history at service separation and indicated that he had no history of cancer or tumor growth. Metastatic squamous cell cancer of unknown primary origin was not diagnosed for more than 40 years after service. There is no medical opinion that purports to relate the Veteran's metastatic squamous cell cancer of unknown primary origin to service or to herbicide exposure therein. While the appellant has expressed her belief that there is such a relationship, and while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), establishing the etiology of metastatic squamous cell cancer falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Accordingly, the Board finds that service connection for the metastatic squamous cell cancer that was the primary cause of death is not warranted on direct service connection and presumptive service connection bases. At the time of the Veteran's death, service connection was in effect for diabetes mellitus, hearing loss, and tinnitus. There is no assertion in this case that the Veteran's metastatic squamous cell cancer is proximately due to or a result of his diabetes mellitus, hearing loss, or tinnitus. Thus, service connection for metastatic squamous cell cancer is not warranted on a secondary service connection basis. There is no assertion that the Veteran's tinnitus and hearing loss played any role in causing the Veteran's death. The Board acknowledges that diabetes mellitus was listed on the death certificate as a significant condition contributing to death. However, this finding alone is not sufficient to establish service connection for the cause of death. VA regulations provide that, in determining whether a 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. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(c). A specialist medical opinion was obtained in September 2008 to address this question. The specialist noted that the Veteran was known to have malignant neoplasms of the head and face. A CT scan of the neck in April 2007 indicating squamous cancer metastatic to the neck, unknown primary, with resection and radiation therapy. Evaluation revealed probable lymph node metastasis with necrosis in the right lower neck. Just prior to his death, he was seen in an emergency department with a diagnosis of intracranial metastatic disease. An MRI revealed scattered enhanced lesions of the brain with ischemic gliosis. The specialist acknowledged that, at the time of his hospital evaluation just prior to his death, he was taking Glyburide for blood glucose control. However, the specialist opined that diabetes mellitus in no way caused, accelerated or contributed to his immediate demise due to metastatic squamous cell cancer, and that diabetes mellitus was not a contributor to his death. A supplemental opinion was obtained in September 2013 based on the Board's determination that, although the VA specialist had provided a conclusive opinion, no rationale for that opinion was provided. The September 2013 opinion was that the service connected diabetes mellitus less likely than not contributed substantially or materially to the Veteran's death, less likely than not combined to cause his death, and less likely than not aided and lent assistance to the production of death. The rationale provided by the opining clinician centered on the severity and manifestations of diabetes mellitus in the Veteran during the period leading up to his death. The opining clinician noted that the Veteran's diabetes mellitus was not so severe that it either contributed substantially or materially to the Veteran's death, combined to cause his death, or aided and lent assistance to the production of death. The opining clinician noted that the Veteran's last measured hemoglobin A1C was on October 11, 2007. At that time it was 6.7 percent with a normal range noted to be, at that time, 4.7 to 6.4 percent. Prior determinations of the A1C were documented at 6.3 percent on Oct 16, 2006 and 6.4 percent on Feb 28, 2005. Further, the Veteran did not have diabetic nephropathy, as evidenced by recorded creatinine value of 0.9 on March 11, 2008 with an eGFR(estimated glomerular filtration rate) of 85. Moreover, when evaluated in the emergency room on February 22, 2008, the Veteran was found to have sensation intact; deep tendon reflexes were symmetric; his strength was 5/5; and cranial nerves II-XII were intact. From this information, the opining clinician inferred that the Veteran did not exhibit any symptoms of diabetic peripheral neuropathy. The clinician acknowledged that the Veteran's blood sugar was elevated at the time of the last determination of that value at 324 on March 11, 2008. However, prior to that determination, the value had been 220 on February 12, 2008 and 284 on January 2008. The opining clinician noted that the Veteran had been started on a powerful cortisone (dexamethasone) to combat the edema that he was experiencing in his brain. He was started on this medication after reporting to a local emergency room with complaints of increasing dizziness, disequilibrium, and several falls over the last 2 weeks, with associated headache, but without nausea/vomiting. Prior to starting the cortisone/steroid, which will increase the production of sugar by the liver, thus driving up blood sugar, the Veteran's blood sugar had been between 154 to 194 from November 2007 thru December 2007. Thus, the opining VA clinician inferred that the Veteran's blood sugar was fairly well controlled up to the point of the initiation of dexamethasone. Moreover, the Veteran did not require insulin injections to control his diabetes. He was on a low dose of oral medication. He was taking only 10mg of Glyburide once a day. The conclusion was that the Veteran did not have any of the complications of diabetes mellitus which would lead to diabetes being a cause of, or combining to cause, aiding in death, or accelerating death. The Board finds that the opinion evidence in this case is highly persuasive. Both medical opinions are consistent in finding that diabetes mellitus did not contribute materially to the cause of the Veteran's death. Moreover, the September 2013 opinion includes a detailed rationale establishing that the Veteran's diabetes mellitus was not of such severity, and did not have such complications, as to have played any significant role in causing the Veteran's death. For the reasons discussed above, the Board finds that the appellant's opinion is not competent evidence on this question, as establishing the extent of causation attributable to diabetes mellitus in the Veteran's death is not capable of lay observation but requires medical knowledge. There is no medical opinion, including the death certificate, that purports to establish the Veteran's diabetes mellitus contributed substantially or materially to cause his death, that it combined to cause death, or that it aided or lent assistance to the production of death. As such, service connection for the cause of the Veteran's death is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Turning to the claim for service connected burial benefits, the term 'burial benefits' means payment of money toward funeral and burial expenses. See 38 C.F.R. §§ 3.1600. A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C.A. § 2302; 38 C.F.R. § 3.1600. If a veteran dies as a result of a service-connected disability or disabilities, certain burial benefits may be paid. 38 C.F.R. § 3.1600(a). As noted above, service connection for the cause of the Veteran's death has been denied. As such, service-connected burial benefits cannot be awarded as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). There is no assertion that the notice provided by the RO was inadequate in this case. The RO sent two letters to the appellant in May 2008 and June 2008. The Board acknowledges that these letters did not provide a statement of the conditions for which the Veteran was service connected at the time of his death, see 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), this is not prejudicial to her claim as she has demonstrated actual knowledge of this information in her assertions that the service-connected diabetes mellitus contributed to cause the Veteran's death and that the cause of death is related to in-service herbicide exposure. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the appellant's written assertions. In addition, two opinions were obtained to address etiology. The September 2013 opinion is adequate because it was offered by a medical professional based on a review of claims file and is accompanied by a thorough rationale. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's remand instructions by obtaining an addendum opinion addressing (1) whether the service connected diabetes mellitus (a) contributed substantially or materially to the Veteran's death, (b) combined to cause his death, or (c) aided and lent assistance to the production of death, and (2) whether, even assuming that the squamous cell carcinoma that was the primary cause of death was so overwhelming that eventual death could be anticipated irrespective of the diabetes mellitus, the diabetes mellitus was of such severity as to have had a material influence in accelerating death. As discussed above, the September 2013 opinion addressed the questions asked by the Board and is deemed adequate. ORDER DIC based on service connection for the cause of the Veteran's death is denied. Service connected burial benefits are denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs