Citation Nr: 1421391 Decision Date: 05/12/14 Archive Date: 05/21/14 DOCKET NO. 08-05 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Lori Chism, Attorney-at-Law ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from April 1950 to April 1953 with active duty training in June 1985. He died in May 2004. The Appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2008, the Board denied the claim of service connection for cause of death and remanded the issue of denied entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318 (West 2002). In June 2009, the Board denied entitlement to DIC under 38 U.S.C.A. § 1318 (West 2002). In March 2011, the United States Court of Appeals for Veterans Claims (Court) issued a memorandum decision in which it vacated and remanded the portion of the June 2009 decision that denied entitlement to DIC benefits under theories other than entitlement under 38 U.S.C.A. § 1318 for further action. The Board notes that the portion of the Board's June 2009 decision, which denied entitlement to DIC under 38 U.S.C.A. § 1318 was affirmed by the Court. As such, the issue is as listed on the title page. In September 2011, the claim was remanded to the RO via the Appeals Management Center (AMC). The issue of service connection for the cause of the Veteran's death was denied by the RO in an October 2012 supplemental statement of the case. The Appellant has continued her appeal. The Board notes that Appellant obtained a new attorney representative as reflected in a VA form 21-22a signed in March 2013. Nonetheless, it also notes that the former attorney-representative submitted statements to the Board in September 2011 and June 2012 requesting that the Board "adjudicate our Clear and Unmistakable error claim." The Board observes that Appellant has not filed an actual CUE claim or motion, specifically she has not identified a Board or rating decision in which CUE is alleged. In this regard, the Court noted in March 2011 that while Appellant appeared to allege CUE in her brief before the Court, she made no such assertion below. As no such claim is on appeal, the matter is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. The Veteran died in May 2004 due to lymphoma with bone metastases. 2. At the time of the Veteran's death, service connection was in effect for residuals of left shoulder injury with left medial cord denervation and brachial plexopathy (minor), rated 60 percent, and vasomotor rhinitis, rated noncompensable. He was also in receipt of total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from July 1995. 3. The Veteran's lymphoma with bone metastases was not present within one year after the Veteran's discharge from service, and is not shown to be etiologically related to the Veteran's active service or service-connected disabilities. CONCLUSION OF LAW A disability incurred in or aggravated by active service did not cause or substantially or materially contribute to the Veteran's cause of death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1310 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Historically, a January 2008 Board decision denied entitlement to service connection for the cause of the Veteran's death and remanded the issue of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 to issue the Appellant a Statement of the Case. Subsequently, the Appellant timely perfected her appeal of the issue of entitlement to DIC benefits under 38 U.S.C.A. § 1318. In a June 2009 decision, the Board denied entitlement to DIC under 38 U.S.C.A. § 1318. A memorandum decision from the Court in March 2011 vacated and remanded the portion of the June 2009 decision characterized as denying entitlement to DIC benefits under theories other than entitlement under 38 U.S.C.A. § 1318 for further action. As explained in the September 2011 Board decision, given the above action, it is the determination of the Board that, as a result of the March 2011 memorandum decision, the Board again has jurisdiction of the 38 U.S.C.A. § 1310 (service connection for the cause of death) issue. I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the effective-date element of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that when VA receives a detailed claim for DIC under 38 U.S.C. § 1310, it must provide a detailed notice to the claimant. Specifically, the Court held that, under section 38 U.S.C. § 5103(a), the notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. In an August 2004 letter, the RO informed the Appellant of the evidence needed to substantiate her claim, and informed her of the evidence that she should submit and that the RO would obtain on her behalf. The Board denied service connection for the cause of the Veteran's death in January 2008 and remanded the claim for DIC under 38 U.S.C.A. § 1318. She was informed consistent with the Court's decision in Hupp v. Nicholson, 21 Vet. App. 342 (2007) in July 2008. An additional letter was sent in January 2012. The claim for service connection for cause of the Veteran's death was readjudicated by the RO in October 2012. To the extent that the Appellant was not provided sufficient notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to her in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also finds the Appellant has been afforded adequate assistance in response to her claim. The Veteran's service treatment records (STRs) and service personnel records (SPRs) are on file. Private treatment records identified by the Appellant are associated with the record. Following the September 2011 Board remand, records identified by the Appellant were sought and associated with the claim. While an attempt was made to obtain records from R. Z., M.D., his office responded in March 2012 that the Veteran was only seen in the Paris Regional Medical Center and that there were no records for the Veteran at the doctor's office. The RO obtained a medical opinion from a VA physician in February 2012. An addendum was obtained dated in July 2012, following the receipt of the additional medical evidence. The Board also finds that no additional development, as for medical opinions is necessary. The opinion rendered in July 2012 is thorough, responsive, uncontroverted by any other medical evidence or opinion of record and addresses all pertinent evidence. The Board considers it adequate for rating purposes. Although the Appellant's former representative deemed it inadequate, the Board disagrees and finds it adequate as explained above. Evidentiary development in this matter is complete to the extent possible. Appellant has not identified any other pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. II. Legal Criteria Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2013); 38 C.F.R. § 3.5 (2013). Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests a malignant tumor to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. 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. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or 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). 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; or 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102 ; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis The Board has reviewed all the evidence in the claims files, with a focus on the evidence relevant to this appeal. Although this Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate her claim and what the evidence in the claim file shows, or fails to show, with respect to her claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Appellant contends that the Veteran's death was a result of his military service, specifically as observed by the Court, she stated in her VA form 9 substantive appeal that, "I feel certain that all the conditions that he was service connected for and the worry and stress he had over these conditions contributed to and was a direct [cause] of his death." The Court observed in the memorandum decision that in view of this February 2008 substantive appeal, the Board's finding in June 2009 that Appellant had not identified any other basis for granting her DIC claim was in error. Records dated from January 2004 show that the Veteran presented at that time with back pain. Medical evaluations quickly led to the diagnosis of lymphoma. Sadly, the Veteran died in May 2004. The cause of death on his death certificate was lymphoma with bone metastases with no contributing causes noted. At the time of the Veteran's death, service connection was in effect for residuals of left shoulder injury with left medial cord denervation and brachial plexopathy (minor), rated 60 percent, and vasomotor rhinitis, rated noncompensable. He was also in receipt of total disability rating based on individual unemployability due to service-connected disability (TDIU) from July 1995. The VA obtained an opinion from a VA physician deemed capable to render an opinion on hemic and lymphatic conditions including leukemia, who reviewed the claims folder and found it was less likely than not that the Veteran's death was proximately due to or the result of his service-connected conditions. In his February 2012 statement, he explained as follows: There is absolutely no evidence whatsoever that vasomotor rhinitis and/or a left shoulder injury with brachial plexopathy has anything to do with the etiology of lymphoma. In addition, there is no indication that his cause of death, i.e., stage IV lymphoma with bony metastases is etiologically related to his military service. The only service related lymphomas are due to Agent Orange and other herbicide exposures in Vietnam, and this Veteran did not service in Vietnam at all. Thereafter, the RO obtained additional evidence to include VA treatment records dated from 1986 to 2004, records from Texas Oncology dated from January to May 2004, and a negative response from Dr. Z. The additional opinion, dated in July 2012, was the following: The Veteran died from stage IV lymphoma with bony metastases. There is nothing new in the medical evidence at Tabs A and B to suggest that his vasomotor rhinitis and left shoulder brachial plexopathy contributed in any way to his death; the brachial plexopathy occurred during service in 198[5] and was due to left upper extremity stretching injury. The finding of lymphoma in a left axillary lymph node biopsy is in no way related to this brachial plexopathy problem at all. Likewise, medical evidence in Tabs A and B has absolutely no documentation of any etiologic relationship of the Veteran's lymphoma to his military service. The Appellant submitted argument in October 2012 that all of the Veteran's medical conditions are inextricably intertwined and as such should all be considered in determining this claim. However, the Board notes that in fact the Veteran was only service-connected for the two aforementioned disabilities. Parenthetically, the Board also notes that TDIU was granted based on a finding that the left upper extremity caused significant impairment. Although the Appellant cites to medical literature, the Board finds the medical opinion of record more persuasive because it directly addresses the facts of this claim. As to whether service connection may be warranted on a direct basis, or on a presumptive basis for a malignant tumor manifesting within one year after service, the Board finds it may not. It is uncontroverted that the disease which is listed as the cause of the Veteran's death was not present in service. In fact, this condition was not shown until 2004. The Veteran's lymphoma initially manifested in 2004, many years following his service. Thus, presumptive service connection for chronic diseases, such as tumors is not applicable in this case. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection under 38 C.F.R. § 3.303(d) (whether all the evidence, including that pertinent to service, establishes that the disease was incurred in service) must be considered. Here, there is no evidence showing that the condition that caused death was incurred in service. The condition that caused death was not present in service or for many years thereafter. The Board finds the VA medical opinions against the claim, rendered in February and July 2012, to be the most competent and probative evidence of record regarding the etiology of the Veteran's lymphoma in relation service. The Board acknowledges that the Appellant believes that the Veteran's service-connected conditions and the worry and stress he had over these conditions contributed to and was a direct cause of his death, but there is simply no medical evidence to establish this fact. Nor is there any other competent evidence of record linking the Veteran's lymphoma to his active service. Consistent with 38 C.F.R. § 5107(b) and Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Board has carefully considered the Appellant's written submissions to VA, to include the medical articles submitted with her own lay statements. The Board has considered the Appellant's statements that the Veteran's death was related to his service. The Board does not doubt the sincerity in her belief. However, as a layperson, the Appellant is not competent to attribute the Veteran's symptoms and diagnosis to radiation. See Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Accordingly, for the above reasons, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs