Citation Nr: 1605975 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 15-21 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1956 to June 1976. He died in January 2014 and the appellant is his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a May 2015 substantive appeal, the appellant requested a hearing before a Veterans Law Judge. In November 2015 the appellant was scheduled for a video conference hearing, but failed to appear. Neither she nor her representative have requested that the hearing be rescheduled, nor have they submitted good cause for the appellant's absence. Therefore, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died on January [redacted], 2014. 2. The cause of the Veteran's death, as shown on the death certificate, was metastatic adenocarcinoma of unknown primary; this was later identified to be stomach cancer. 3. At the time of the Veteran's death, service connection was in effect for diabetes mellitus. 4. Metastatic adenocarcinoma/stomach cancer did not manifest during service or within one year of separation from service, and it is not shown to be causally related to service or proximately due to or the result of a service-connected disease or injury, including due to herbicide exposure. 5. The preponderance of the evidence shows that a disability of service origin, to include the Veteran's service-connected diabetes mellitus, did not cause or hasten his death, or contribute substantially or materially to result in his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1310, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veteran's Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. The notice should inform the claimant about the information and evidence not of record that is necessary to substantiate the claim. It should also inform the claimant about the information and evidence that VA will seek to provide, and the information and evidence the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Certain additional notice requirements attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Generally, section 5103(a) notice for a DIC case 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 DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. Written notice was not provided in conjunction with the current claim. However, the appellant demonstrated awareness with the provisions of 38 U.S.C.A. § 5103(a) as reflected in the statement accompanying her application for benefits, and submitting medical records and a statement from the Veteran's physician in June 2014. Additionally, in a November 2014 letter the appellant was notified of the post decision review process. Although adequate VCAA notice was not provided, the appellant's actions reflect actual knowledge of what was needed to establish her claim for service connection for the cause of the Veteran's death. Accordingly, she is not prejudiced by the inadequate VCAA notice provided. See Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (notice error not prejudicial when claimant has actual knowledge of the evidence needed to substantiate claim). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. With respect to the duty to assist in this case, the Veteran's service treatment records, service personnel records, VA treatment records, and private treatment records have been obtained and associated with the claims file. A medical opinion has not been obtained since the evidence fails to include any indication from a competent source that the Veteran's terminal illness was related to service, or any incident therein, as contemplated by VA law and regulations. After a careful review of the file, 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). II. Analysis In order to establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. See 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.310, 3.312 (2015). 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. Id. 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and malignant tumors become manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2014). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Additionally, if a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain cancers, including all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if 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. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). Thus, a presumption of service connection arises for a veteran who is presumed exposed to Agent Orange and develops one of the identified conditions. The Veteran's death certificate shows that he died in January 2014 and that the immediate cause of death was metastatic adenocarcinoma. A February 2014 letter from the Veteran's physician, Dr. Lee, specifies that the Veteran died from metastatic stomach cancer. At the time of the Veteran's death, service connection was in effect for diabetes mellitus. Since the Veteran was not service connected for metastatic stomach cancer or any other cancer during his lifetime, the evidence would need to show that the Veteran should have been service connected during his lifetime for that disability for the appellant to prevail in the claim. The evidence does not show, and the appellant does not contend that the Veteran's metastatic stomach cancer manifested during service, or within one year of his discharge from service. The Veteran's private treatment records show that the symptoms associated with his metastatic stomach cancer (abdominal pain, decreased oral intake, nausea, and vomiting) began approximately one month prior to his death. The appellant contends that the Veteran's stomach cancer was caused by exposure to herbicide agents during service, including while in Vietnam. The Veteran's service personnel records show that he served in the Republic of Vietnam from August 1971 to April 1972. Therefore, he is presumed to have been exposed to herbicides during service. See 38 C.F.R. § 3.307(a)(6)(iii). As noted above, service connection is warranted for certain cancers that develop post-service in a veteran who is presumed exposed to herbicides during service. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The Veteran's treatment records show that his diagnosis was initially metastatic liver disease or metastatic gastrointestinal insufficiency, but his treating physician ultimately advised that the Veteran's death was from metastatic stomach cancer. There is no competent evidence of record indicating that he had a cancer presumptively related to herbicide exposure. Since the competent evidence indicates that the Veteran's metastatic stomach cancer is not a chronic B-cell leukemia, prostate cancer, respiratory cancer, or soft-tissue sarcoma, the Board finds that service connection is not warranted for this disability on a presumptive basis due to herbicide exposure. While the appellant argues to the contrary, matters concerning the classification and types of cancers are not within the province of a layperson and she is not shown to have the appropriate training and expertise to render an opinion on this medical matter. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). In addition to the presumption of service connection under 38 C.F.R. §§ 3.307 and 3.309, service connection for a disability claimed as due to herbicide exposure may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b), 1116, and 38 C.F.R. § 3.303. Here, the record contains no indication that there is any relationship between Veteran's metastatic stomach cancer and his military service, to include his presumed herbicide exposure therein. As discussed above, the service treatment records do not show any complaints, treatment or diagnoses related to stomach cancer, and there are no competent opinions of record indicating that there is any relationship between the Veteran's military service, to include herbicide exposure, and his metastatic stomach cancer. Furthermore, the Veteran's diagnosis of stomach cancer was over 35 years after his active military service, and there is no indication from the treatment records that it is related to military service, including exposure to herbicides. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (to the effect that service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). There is also no indication from the record that metastatic stomach cancer was present within a year of the Veteran's June 1976 discharge from service. The appellant has submitted a Board decision in the case of another veteran in which service connection was granted for gastrointestinal and liver cancer based on in-service exposure to herbicides. However, that decision was based on specific medical evidence that is not of record in the present case. Therefore, it is not of probative value. Although the Board is sympathetic to the appellant's claim, the criteria for an award of service connection for the cause of the Veteran's death has not been presented. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs