Citation Nr: 1422927 Decision Date: 05/20/14 Archive Date: 05/29/14 DOCKET NO. 10-08 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for eligibility for Dependents' Educational Assistance (DEA) benefits under 38 U.S.C.A. Chapter 35. 2. Whether new and material evidence has been received to reopen a claim for Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. 3. Whether new and material evidence has been received to reopen a claim for service connection for the cause of the Veteran's death. 4. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran's surviving spouse and the Veteran's son ATTORNEY FOR THE BOARD J. A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1953 to May 1955, with prior unverified active duty. The Veteran died in October 2000, and the Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that reopened the claims on appeal and denied them on the merits. These matters were previously before the Board in September 2013, and the Board finds that there has been substantial compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. During the Appellant's March 2014 hearing before the undersigned, the Appellant stated that she was seeking a widow's pension. This claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ), and it is remanded to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. During the Appellant's March 6, 2014, hearing, and before the promulgation of a decision in the appeal, the Appellant notified the Board that she wanted to withdraw the petition to reopen a claim for eligibility for DEA benefits under 38 U.S.C.A. Chapter 35. 2. An unappealed April 2003 rating decision denied the Appellant's claims of entitlement to service connection for the cause of the Veteran's death and DIC benefits under 38 U.S.C.A. § 1318. 3. The evidence received since the April 2003 rating decision is cumulative and redundant, does not relate to unestablished facts necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for DIC benefits under 38 U.S.C.A. § 1318. 4. The evidence received since the April 2003 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for the cause of the Veteran's death. 5. The Veteran died in October 2000. The death certificate lists the immediate cause of death as a bronchogenic malignant neoplasm. 6. At the time of the Veteran's death, service connection had been established for hemorrhoids rated as 0 percent disabling from August 3, 1980. 7. The preponderance of the evidence is against a finding that the Veteran's cause of death is attributable to service or any incident of service. CONCLUSIONS OF LAW 1. The criteria for withdrawal are met with respect to the petition to reopen a claim for eligibility for DEA benefits under 38 U.S.C.A. Chapter 35. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The April 2003 rating decision denying the Appellant's claims of entitlement to service connection for the cause of the Veteran's death and DIC benefits under 38 U.S.C.A. § 1318 is final. 38 U.S.C.A § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002). 3. New and material evidence has not been received sufficient to reopen the Appellant's claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2013). 4. New and material evidence has been received sufficient to reopen the Appellant's claim of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2013). 5. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 1310, 1131 (West 2002); 38 C.F.R. § 3.300, 3.303, 3.309, 3.311, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Appellant or on her behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Withdrawn Claim The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Either the Veteran or his or her authorized representative may withdraw a claim. 38 C.F.R. § 20.204 (2013). During the Veteran's March 2014 hearing before the Board, the Appellant indicated that she wanted to withdraw the petition to reopen a claim for eligibility for DEA benefits under 38 U.S.C.A. Chapter 35. The Board finds that the Appellant's statement, once transcribed as part of the record of the hearing, indicates her intention to withdraw the appeal as to this issue and satisfies the requirements for the withdrawal of a substantive appeal. Tomlin v. Brown, 5 Vet. App. 355 (1993). Therefore, there remain no allegations of error of fact or law for appellate consideration on this issue. Accordingly, the Board does not have jurisdiction to review the appeal of that issue, and it is dismissed. New and Material Evidence Decisions of the RO and the Board that are not appealed in the prescribed time are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2013). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the former disposition. 38 U.S.C.A. § 5108 (West 2002); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2013); Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Appellant's claims of entitlement to service connection for the cause of the Veteran's death and DIC benefits under 38 U.S.C.A. § 1318 were last finally denied in an April 2003 rating decision. No evidence was received within one year of the April 2003 decision and no new service records have been submitted. Therefore, the April 2003 decision is final. 38 C.F.R. § 3.156(b), (c) (2013). With respect to the claim of entitlement to service connection for the cause of the Veteran's death, the April 2003 decision found that the evidence did not demonstrate that the Veteran's cause of death was related to his military service. Since the April 2003 rating decision, additional evidence has been submitted, for example in November 2011, discussing the possibility of a connection between the Veteran's service and his cause of death. This evidence is new because it has not previously been submitted to VA. The newly-submitted evidence relates to an unestablished fact necessary to substantiate the claim, namely the possibility of a relationship between the Veteran's cause of death and his service. As new and material evidence has been received, the claim for service connection for the cause of the Veteran's death is reopened. With respect to the claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318, VA death benefits may be paid to a deceased veteran's surviving spouse in the same manner as if the veteran's death was service-connected, even though the veteran died of non-service-connected causes, if the veteran's death was not the result of his or her own willful misconduct and at the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the veteran's release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former prisoner of war who died after September 30, 1999. The total rating may be either schedular or based upon unemployability. 38 U.S.C.A. § 1318 (West 2002). The term "entitled to receive" means that the Veteran filed a claim for disability compensation during his lifetime and one of the following circumstances is satisfied: (1) The veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the periods specified above but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or (2) additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) for the periods specified above; or (3) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the periods specified above, but was not receiving compensation for a variety of reasons not pertinent in this appeal. 38 C.F.R. § 3.22(b) (2013). Turning to the facts in this case, the April 2003 rating decision found that the evidence did not show that the Veteran was permanently and totally disabled at the time of his death due to a service-connected condition. Instead, at the time of his death, the Veteran was service-connected only for hemorrhoids with a noncompensable evaluation. The Board finds that the evidence submitted since the April 2003 decision does not provide relevant information as to the issue of whether the requirements for a grant of DIC benefits under 38 U.S.C.A. § 1318 were met at any time. The Veteran did not have a service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; he did not have a total rating continuously from service discharge for at least five years immediately preceding death; and while the Appellant has asserted that the Veteran was a prisoner of war, such assertion is irrelevant because the Veteran was not in receipt of a service-connected disability at the time of his death that was rated as totally disabling. The Appellant has not submitted any evidence to the contrary. Furthermore, the Appellant has not submitted evidence suggesting that the Veteran was "entitled to receive" compensation for a service-connected disability that was rated by VA as totally disabling. While the Veteran filed claims of entitlement to service connection for a variety of ailments during his lifetime (including service connection for lung cancer, which was denied in August 2000), there has been no allegation or finding of clear and unmistakable error in the decisions denying those benefits. Instead, the Appellant has argued generally that the Veteran should have received a total disability rating at some point before his death. Additional service department records have not been submitted. The other circumstance outlined in 38 C.F.R. § 3.22(b) contemplates a situations in which the Veteran was awarded a total rating, but was not being paid for various that are not pertinent in this appeal. For the reasons set forth above, none of the evidence added to the record since the April 2003 decision, either taken alone or taken in the context of all of the evidence of record, is new and material evidence sufficient to reopen the Appellant's claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318. In light of the above, the claim for DIC benefits under 38 U.S.C.A. § 1318 may not be reopened. Service Connection for the Veteran's Cause of Death Service connection for the cause of a veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2013). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b) (2013). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially. 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) (2013). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). A current disability must be related to service or to an incident of service origin. A claimant seeking disability benefits must establish both the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1322 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). The Board acknowledges that the Appellant has argued on numerous occasions that the Veteran was a prisoner of war. Certain diseases associated with former prisoners of war will be considered to have been incurred in service. 38 C.F.R. § 3.309(c) (2013). Such presumptive service connection is inapplicable in this case for two reasons. First, despite the Appellant's contentions, which the Board has fully considered, the evidence of record simply does not verify that the Veteran was indeed a prisoner of war. Second, and in any event, the Veteran's cause of death-bronchogenic malignant neoplasm-is not among those conditions listed as subject to presumptive service connection under 38 C.F.R. § 3.309(c). Therefore, presumptive service connection based on prisoner of war status is unavailable to the Appellant, even if this were the case. Further discussion of this issue is therefore not warranted. Simply stated, being a POW would not provide a basis to grant this claim. Turning to the facts in this case, an October 1949 chest x-ray performed in association with the Veteran's treatment for tonsillitis revealed that there was a 1.3 cm area of calcification at the level of the 6th anterior rib, right side, mid-clavicular line. The Veteran's lungs and chest were normal at the time of his May 1955 separation examination. As Dr. J.L. noted in November 2011, the calcified lesion was present and noted in subsequent x-rays taken in July 1992, July 1993, October 1993, November 1993, March 1998, and April 1997. On January 12, 2000, the Veteran presented to a VA primary care outpatient clinic with a complaint of hemoptysis. Evaluation by chest x-ray indicated that the Veteran had a right lower lobe mass. Subsequent review determined that the Veteran had invasive, poorly differentiated, non-small cell carcinoma. The Veteran underwent a right lower lobectomy in April 2000, which revealed positive lymph nodes and marginal spread of the tumor. Post-operatively, the Veteran was advised to have radiation therapy, but he declined to pursue this option. The Veteran was later determined to have metastatic disease involving his liver. Supportive care was offered until the Veteran died on October [redacted], 2000. The Veteran's death certificate listed the cause of death as bronchogenic malignant neoplasm. No other underlying causes of death or significant conditions contributing to death were noted. In March 2001, Dr. D.M., a private physician, noted that the Veteran smoked cigarettes from the time of his active duty until September 2000. Dr. D.M. noted that the Veteran's bronchogenic lung cancer was presumably the result of smoking cigarettes. In November 2011, Dr. J.L. discussed the Veteran's pertinent medical history and noted that it was the Appellant's belief that the calcified nodule noted on the Veteran's October 1949 chest x-ray was a precursor to the Veteran's subsequent development of carcinoma of the right lower lobe. Dr. J.L. noted that the stability of the lesion as noted on X-rays from 1992 to 1998 would argue against the Appellant's position, but Dr. J.L. noted that "it remains a possibility." The Board has reviewed this statement in detail and finds that this report neither supports, nor refutes, the Appellant's position. This will be explained below. In November 2011, a VA examiner indicated that the Veteran's cause of death was less likely than not incurred in or caused by an in-service injury, event, or illness. As a rationale for this decision, the examiner noted that the Veteran died of bronchogenic non-small cell carcinoma of the right lung with metastases to the lymph nodes and liver. The examiner further noted that the Veteran had a 50 pack year smoking history. The examiner noted that it was more likely that the cause of the Veteran's lung cancer was his long smoking history. The examiner noted that multiple chest X-rays were taken between 1991 and 2000 that demonstrated calcified granulomata in the right lower lobe. The examiner noted that these calcified lesion were old and totally benign. Likewise, the chest x-ray from 1949 revealed a calcified lesion in the right lung field, which was old and benign. None of these calcified granulomata were a precursor to the lung cancer found in 2000; they just happened to both be in the right lower lung. Upon review of the evidence, the Board finds that the weight of the competent medical evidence of record fails to link the cause of the Veteran's death to his service. The Board acknowledges that Dr. J.L. stated in November 2011 that it was a "possibility" that the Veteran's October 1949 calcified nodule was a precursor to his ultimate development of lung cancer. At the same time, however, Dr. J.L. acknowledged that the stability of the lesion on later X-rays weighed against such a finding, which does not support this claim, leading to the Board's finding that this report does not support, or refute, the claim. The Board finds the opinion of Dr. J.L. to be too speculative a basis upon which to award service connection, especially when the opinion also suggests that the stability of the Veteran's lung lesion weighed against a finding of connection. Instead, the Board places greater weight on the March 2001 opinion of Dr. D.M. and the November 2011 examiner's opinion that linked the Veteran's cause of death to his 50-year history of smoking after reviewing the Veteran's pertinent medical history. With that said, the Board also acknowledges the contentions of the Appellant that the Veteran's October 1949 nodule was a precursor to his later development of cancer. The Board acknowledges that lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, the lay contentions linking the nodule that was noted in service to the Veteran's later development of lung cancer fail to address other pertinent evidence of record, such as the relevance of the Veteran's 50-year tobacco smoking history to his development of lung cancer. Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's cause of death is related to his military service, the Board ultimately affords the objective medical evidence of record, which weighs against such a connection, with greater probative weight than the lay opinions. To the extent that the Appellant has argued, for example in March 2001, that the Veteran's cause of death from lung cancer should be service connected because such cancer is the result of the use of tobacco products, such claim is barred as a matter of law because her claim was filed after June 9, 1998. 38 C.F.R. § 3.300 (2013) (for claims received after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products). In sum, the evidence shows that the Veteran developed the condition that lead to his death many years after service. The bronchogenic malignant neoplasm was not service-connected, and the weight of the evidence shows that no disability incurred in or aggravated by service either caused or contributed to the Veteran's death. While the Board is sympathetic to the Appellant's loss of her husband, the Board finds that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, and that the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Generally, notice for a cause of death claim must include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his 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. The content of the notice letter depends upon the information provided in the claimant's application. Hupp v. Nicholson, 21 Vet. App. 342 (2007). Additional VCAA notice requirements apply in the context of a veteran's request to reopen a previously and finally denied claim. Kent v. Nicholson, 20 Vet. App. 1 (2006). VA must notify a claimant of the evidence and information that is necessary to reopen the claim and must provide notice that describes the evidence necessary to substantiate the element or elements required to establish service connection that were not found in the previous denial. In correspondence dated July 2008, the RO notified the Appellant of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; information and evidence that the Appellant was expected to provide; and the process by which disability ratings and effective dates are established. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Dingess v. Nicholson, 19 Vet. App. 473 (2006). While the July 2008 VCAA letter did not state the condition for which the Veteran was service-connected, subsequent correspondence, for example from March 2012, provided this information, and the Appellant has been provided with several readjudications of her claims since that time. The July 2008 letter additionally provided notice of the elements for service connection for the cause of the Veteran's death, and provided the Veteran with all required notice under Kent. Any notice deficiencies relating to the Veteran's claim to reopen the claim of entitlement to service connection for the Veteran's cause of death are moot because this decision reopens the Veteran's claim. VA has done everything reasonably possible to assist the Appellant with respect to her claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). The Veteran's service medical records have been associated with the claims file. Additionally, all identified and available medical treatment records have been secured. VA has a duty to obtain a medical opinion when an opinion is necessary to substantiate the claimant's claim for a benefit. DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). In November 2011, a VA examiner provided a medical opinion addressing the relationship between the Veteran's cause of death and his military service. The November 2011 opinion fully and competently addresses set forth regarding the relationship between the Veteran's military service and his cause of death. This examination report is based on an accurate factual basis, and it provides rationale for the opinions expressed. The Appellant and her son participated in a hearing before the undersigned in March 2014, and a transcript of this hearing has been associated with the record. Therefore, the Board finds that there is no further action to be undertaken to comply with the duties to notify and assist. 38 U.S.C.A. § 5103(a), § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). ORDER The appeal of the petition to reopen a claim for eligibility for DEA benefits under 38 U.S.C.A. Chapter 35 is dismissed. New and material evidence not having been submitted to reopen the claim for DIC benefits under 38 U.S.C.A. § 1318, the appeal is denied. New and material evidence having been submitted, the claim for service connection for the Veteran's cause of death is reopened, and the appeal is allowed to that extent only. Service connection for the Veteran's cause of death is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs