Citation Nr: 1443333 Decision Date: 09/26/14 Archive Date: 10/06/14 DOCKET NO. 13-27 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran had active military service from February 1946 to June 1966. The appellant is the Veteran's surviving spouse. The Veteran's cause of death was respiratory arrest and hepatocellular carcinoma. The Veteran died in September 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky which denied reopening the appellant's claim. In a March 2014 decision, the Board reopened the appellant's claim upon a showing of new and material and remanded it back to the RO for further development. That development having been completed, this claim is once again before the Board. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the electronic "Virtual VA" and "VBMS" system to insure a total review of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in September 1987. The death certificate shows that the immediate cause of death was respiratory arrest and hepatocellular carcinoma. 2. At the time of his death, service connection was in effect for residuals of right inguinal herniorraphies rated as noncompensable. The Veteran had no other service-connected disabilities. 3. The Veteran did not die as a result of his service-connected disability, nor did his service-connected disability cause or contribute substantially or materially to his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1310, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA notice requirements apply to all elements of a claim, including the degree and effective date of a disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper notice should be provided prior to the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In the context of a claim for dependency and indemnity compensation (DIC), to include service connection for cause of death, proper notice must include a statement of any conditions for which the veteran was service-connected at the time of death, an explanation of the evidence and information required to substantiate a claim based on a previously service-connected condition, and an explanation of the evidence and information required to substantiate a claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Here, the appellant was notified in August 2010 and September 2010, prior to the initial denial of her claim, of the evidence and information necessary to establish entitlement to DIC, death pension, and accrued benefits; as well as the responsibilities of VA and the appellant in obtaining or providing such information. She was specifically advised of the conditions for which the Veteran was service-connected at the time of death, and the evidence and information needed to establish that the Veteran's death was due to a service-connected condition, as required by Hupp. The Board notes that the letters also advised the appellant of the evidence and information necessary to establish a disability rating and effective date, as required by Dingess/Hartman. VA also has a duty to assist the appellant in the development of the claim. This duty includes assisting the appellant in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All relevant records identified by the appellant, including service treatment records, private treatment records, and VA treatment records, have been obtained. A VA medical opinion regarding the etiology of the Veteran's cause of death was obtained as well. A review of the claims file also shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal 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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability is one that was incurred in or aggravated during active service, or may be presumed to have been incurred during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as malignant tumor, 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) (2013). While the disease need not be diagnosed within the presumption 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. In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The law provides that, if a veteran was exposed to a herbicide agent during active service, presumptive service connection is warranted for certain disorders delineated under 38 C.F.R. § 3.309(e). Cancers are among the diseases listed in 38 C.F.R. § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Background The appellant contends that the Veteran's causes of death, noted as respiratory arrest and hepatocellular carcinoma, were related to the Veteran's military service, to include exposure to Agent Orange while serving in Vietnam. A review of the Veteran's service treatment records does not reveal any complaints, treatment, or diagnosis related to hepatocellular carcinoma, or any type of liver cancers. A review of the Veteran's post-service medical records does not reveal any complaints, treatment, or diagnosis related to hepatocellular carcinoma, or any type of liver cancers within one year of leaving military service. Rather, the record indicates that the Veteran was diagnosed with a rapidly progressing glomerulonephritis in November 1986 at the VA Medical Center. The report included a discussion of the Pathologist's observations and impressions and contained a confirmation that the Veteran had liver cancer. He was placed on medication to treat this condition at that time until he was hospitalized in March and April 1987 for continuing complications. The record shows that the Veteran was ultimately hospitalized in September 1987 and died at a VA facility. These records are absent for any discussion relating the Veteran's hepatocellular carcinoma to military service, his service-connected residuals of right inguinal herniorraphies, or Agent Orange exposure. The claims folder was referred to a VA physician in April 2014. Upon reviewing the Veteran's complete medical records and based upon medical knowledge and literature, the examiner provided an opinion that it was less likely than not that the Veteran's service connected residuals of right inguinal herniorraphies or Agent Orange exposure was the cause of the Veteran's death. In support, the examiner provided that there is no evidence in the medical record that residuals of right inguinal herniorraphies caused or created complications leading to the Veteran's death. Additionally, it was noted that hepatocellular carcinoma is not currently recognized as a condition that is caused by exposure to Agent Orange. Analysis The appellant does not assert, nor does the evidence otherwise show that the Veteran's already service-connected residuals of right inguinal herniorraphies caused or contributed to cause his death. Further, the Board notes that such condition did not involve active processes affecting vital organs, and there is no indication that there were resulting debilitating effects or general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of the other diseases or injury that primarily caused his death. See 38 C.F.R. § 3.312(c)(3). As such, it is not a contributory cause of death. Id. The evidence shows that the Veteran served in the Republic of Vietnam so as to avail himself of the presumptive provisions set forth under 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran's service records/DD Form 214 reflect that he served one year in Vietnam during the applicable presumptive period. However, although the Veteran served during the relevant time period, the evidence does not show that the Veteran developed or died of any of the conditions specifically detailed for consideration of presumption due to Agent Orange exposure in accordance with the regulations. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Although certain types of cancers, such as Hodgkin's disease, non-Hodgkin's lymphoma, multiple myeloma, prostate cancer, respiratory cancer, and soft tissue sarcoma, are noted by regulation as subject presumptive service connection for exposure to Agent Orange, there is no indication that hepatocellular carcinoma or any other cancers of the liver are for such consideration. The probative evidence of record, to include the opinions provided by the VA physician in April 2014, has not shown a connection between the Veteran's diagnosed hepatocellular carcinoma and Agent Orange exposure and the evidence does not show that such condition was related to or the result of any other presumptive condition. Moreover, while malignant tumors are considered to be a "chronic disease" under 38 C.F.R. § 3.309(a), the Veteran's hepatocellular carcinoma did not manifest until approximately November 1986 - over 20 years after separation from active duty service. See Treatment Records from the VA Medical Center. As such, service connection cannot be established for the cause of his death on a presumptive basis under the provisions of 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As for the provisions regarding continuity of symptomatology under 38 C.F.R. § 3.303(b), there were no allegations from the Veteran during his lifetime that he began experiencing symptoms of liver cancer during service which continued thereafter. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board has also considered whether service connection is warranted for the cause of the Veteran's death on direct incurrence basis. In this regard, there is no argument or indication that the listed immediate and contributory causes of the Veteran's death of respiratory arrest and hepatocellular carcinoma were related to any injury or disease during service. In particular, none of those conditions were noted in his service treatment records and there is no medical evidence or opinion linking such conditions directly to service. In fact, the medical evidence of record indicates that the aforementioned conditions manifested many years after the Veteran's separation service in 1966. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As such, service connection for the cause of death is not warranted on a direct basis. See 38 C.F.R. § 3.303. Further, there is no argument or indication that any other presumptive provisions would apply in this case. In sum, the evidence does not establish that the service-connected residuals of right inguinal herniorraphies, which was non symptomatic at the time, caused or contributed to his death, to include by impairing his health to such an extent that he was materially less capable of resisting the effects of his respiratory arrest and hepatocellular carcinoma. Further, the evidence does not show that service connection is warranted for those conditions named as the principal or contributory causes of death on either a direct or a presumptive basis. As such, service connection is not warranted for the cause of the Veteran's death. 38 C.F.R. § 3.312. Lastly, the Board notes that the appellant has not submitted any competent evidence (lay or medical) which provides a basis for the conclusion that the cause of the Veteran's death was caused or aggravated by his active service. It is not shown that the appellant has the medical expertise to provide a competent opinion regarding the possible relationship between the death of the Veteran and his period of military service. The Board is very sympathetic to the appellant for the loss of her husband. Unfortunately, for the reasons and bases set forth above, the Board must conclude that the preponderance of the evidence is against the claim, and service connection for the cause of the Veteran's death must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2013). ORDER Service connection for the Veteran's cause of death is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs