Citation Nr: 1753348	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO. 14-08 162	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to service connection for the cause of the Veteran's death.

2. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

P. Noh, Associate Counsel

INTRODUCTION

The Veteran had active military service from July 1967 to July 1970. The Veteran died in May 2012; the appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. 

In her appeal, the appellant requested a hearing but subsequently withdrew her request in a March 2015 letter. 


FINDINGS OF FACT

1. The Veteran died in May 2012. The immediate cause of death listed on his death certificate was esophageal cancer, with no other contributing or underlying conditions identified. 

2. At the time of the Veteran's death, service connection was in effect for post-traumatic stress disorder with depression, bilateral cataracts, Type II diabetes mellitus (diabetes mellitus), peripheral neuropathy of the bilateral upper and loer extremities, bilateral pes planus with degenerative joint disease, constant bilateral tinnitus, hypertension, bilateral hearing loss, and erectile dysfunction.

3. The Veteran's esophageal cancer did not manifest in-service, and is not shown to be causally or etiologically related to an in-service event, injury or disease, or to have been caused or aggravated by a service-connected disability. 

4. The Veteran was not in receipt of a total service-connected disability rating for 10 years at the time of his death, his death occurred 40 years after his separation from active duty service, and he was not a former prisoner of war (POW). 


CONCLUSIONS OF LAW

1. The Veteran's death was not caused, or substantially or materially contributed to, by a disability incurred in or aggravated by his active duty service. 38 U.S.C. §§ 1101, 1110, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017).

2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and to Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, and 5107; see also 38 C.F.R. §§ 3.102 and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. 

In this case, VA satisfied its duty to notify the appellant by way of a June 2010 letter. The VCAA letter notified the appellant of what information and evidence is needed to substantiate her claim, what information and evidence must be submitted by the appellant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. The appellant received all essential notice, had a meaningful opportunity to participate in the development of her claim, and was not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further, neither the appellant, nor her representative, alleged prejudice with regard to notice. Accordingly, the VA satisfied its duty to notify. 

In regard to the duty to assist, the Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records has been fulfilled with respect to the issues on appeal. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Board acknowledges that no VA opinion has been obtained with respect to the claim for Veteran's cause of death but finds no such opinion was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran's active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). There is no competent and credible evidence of an in-service event, injury or disease of esophageal cancer or throat-related condition. The service treatment records show that the Veteran had a normal throat with no complaints of throat or stomach issues except for a one-time complaint of cough and sore throat. The service treatment records do not note any diagnosis, symptoms or evidence of esophageal cancer. As such, the Board finds that a VA medical opinion is not needed and such requirement does not attach. 

In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and the duty to obtain a medical opinion did not attach. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the appellant.

II. Cause of Death

Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 C.F.R. § 3.5 (2017). 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 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 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).

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).

The appellant contends that the Veteran's death was the result of his service-connected diabetes mellitus. The cause of death identified on the Veteran's death certificate was esophageal cancer, with no other contributory causes listed. At the time of his death, the Veteran was service-connected for post-traumatic stress disorder with depression, bilateral cataracts, diabetes mellitus, peripheral neuropathy of the bilateral upper and loer extremities, bilateral pes planus with degenerative joint disease, constant bilateral tinnitus, hypertension, bilateral hearing loss, and erectile dysfunction.

The Board acknowledges that the appellant believes that the Veteran's service-connected disabilities, specifically diabetes mellitus, contributed to and were a direct cause of his death; however, the Board finds that the question at issue is inherently medical in nature. While lay persons, such as the appellant, are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), questions such as the etiology of the cause of death falls outside the realm of common knowledge of a lay person and requires specialized medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, while the appellant's assertions attributing the cause of the Veteran's death to his service-connected diabetes mellitus have been considered, this evidence is not competent to determine the cause of the Veteran's death.

Turning to the medical evidence, the records show that the Veteran's diabetes mellitus was well managed with medication. In an April 2011 VA examination, the examiner opined that diabetes mellitus did not cause any secondary complications in regards to the eyes, heart, skin, kidney, gastrointestinal system, impotency, amputation, peripheral edema, arteries or nervous system. Further, the examiner opined that the Veteran did not have any non-diabetic condition that was aggravated by diabetes mellitus. The VA examiner's opinion is supported by the death certificate which states that esophageal cancer was the only cause of death with no other contributing causes. Importantly, there is no medical evidence of record to support an etiological link between the Veteran's esophageal cancer and his diabetes mellitus. Accordingly, the Board finds the diabetes mellitus did not contribute to, and was not a direct cause of, the Veteran's death. 

As to whether service connection may be warranted on a direct basis for the esophageal cancer, the Board finds that it is not. It has not been argued, and the medical evidence does not show, that esophageal cancer manifested to any degree or was diagnosed during the Veteran's active duty service. Further, it is uncontroverted that the cause of death was not present until many years after service. In fact, the treatment records show that the Veteran was first diagnosed with esophageal cancer in 2010, about forty years after service. There is simply no competent evidence of an etiological link between the Veteran's service and the esophageal cancer that brought about his death. As there is no evidence of in-service injury or manifestation, service connection for esophageal cancer is not warranted in this case. 38 C.F.R. § 3.303.

Accordingly, 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).

III. DIC Benefits under 38 U.S.C. § 1318

A surviving spouse may establish entitlement to DIC in the same manner as if the Veteran's death were service connected where it is shown that the Veteran's death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). 

In this case, the Veteran had not been continuously rated totally disabled for 10 years immediately prior to his death, and he was not a former POW. Accordingly, the appellant does not qualify for DIC benefits under 38 U.S.C. § 1318. In essence, the facts of this case are not in dispute and the law is dispositive. Accordingly, the claim is denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to service connection for the cause of the Veteran's death is denied.

Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. 



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs