Citation Nr: 1802311	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  16-20 431	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania

THE ISSUES

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

2.  Entitlement to nonservice-connected death pension benefits.

3.  Entitlement to accrued benefits.


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

L. S. Kyle, Associate Counsel
INTRODUCTION

The Veteran served on active duty from July 1948 to October 1968.  He died in December 2011.  The Appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania.  This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The Board notes the Appellant submitted a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in October 2017 that was not signed by an official acting on behalf of the organization named on the form.  An official acting on behalf of the organization must sign the form for it to be effective.  Thus, there has not been an effective change of the power of attorney in this case, and the representative listed on the title page of this decision remains the appellant's representative for the purpose of this appeal.

The issue of entitlement to nonservice-connected death pension benefits is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran died in December 2011.

2.  The Veteran had no service-connected disabilities at the time of his death.

3.  The Veteran's death certificate lists esophageal cancer as the immediate cause of death with no other significant conditions listed as contributing to his death.

4.  The preponderance of evidence is against a finding that the Veteran's esophageal cancer was the result of an in-service injury or disease, to include his presumed exposure to herbicide agents in the Republic of Vietnam.

5.  The Veteran was not receiving and did not have a pending application for VA benefits at the time of his death.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for the Veteran's cause of death have not been met.  38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.312 (2017).

2.  The criteria for entitlement to accrued benefits have not been met.  38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection for the Veteran's Cause of Death

To warrant service connection for the Veteran's cause of death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.  A disability will be considered the principal (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 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 C.F.R. § 3.312 (c)(1).

Service connection for the cause of death is determined in accordance with the statutes referable to establishing service connection for compensation purposes under Chapter 11 of 38 U.S.C.A. (§ 1101 et. seq.).  38 U.S.C.A. § 1310 (a).  Service connection will be granted for a disability resulting from disease or injury that was incurred or aggravated in the line of duty during active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a).  Presumptive service connection may be granted under certain circumstances, which are discussed below as pertinent to this case.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Here, the Veteran died in December 2011 and did not have any service-connected disabilities at the time of his death.  The Veteran's death certificate lists esophageal cancer as the immediate cause of death with no other significant conditions listed as contributing to his death.  The Appellant has asserted the Veteran's esophageal cancer was the result of his presumed exposure to herbicide agents in the Republic of Vietnam.

The Board finds the preponderance of evidence is against a finding that the Veteran's esophageal cancer was the result of his presumed exposure to herbicide agents in the Republic of Vietnam.  Initially, the Board notes esophageal cancer is not a disease that is presumed to be associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e) and manifest more than forty years after the Veteran's separation from service.  See 38 C.F.R. § 3.309(a).  Nevertheless, this does not foreclose the theory of direct service connection, which is the primary basis of the appellant's claim.  Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed.Cir.1994) (stating that the inability to establish presumptive service connection "does not foreclose proof of direct service connection").

In June 2017, an oncologist with the Veterans Health Administration (VHA), N.V., M.D., provided an opinion indicating the Veteran's esophageal cancer was less likely than not the result of presumed exposure to herbicide agents in service.  N.V., M.D., concluded it is more likely the Veteran's esophageal cancer was the result of his well-documented tobacco use.  N.V., M.D., explained medical literature has established tobacco use with an increased risk of squamous cell carcinoma of the esophagus, the specific type of esophageal cancer present in the Veteran's case.  N.V., M.D., further explained medical literature has not sufficiently established a similar link between exposure to herbicide agents and squamous cell carcinoma of the esophagus.

The Board acknowledges the Appellant submitted an opinion in June 2016 from a private physician, H.S., M.D., to support her claim.  However, as noted in its VHA opinion request, the Board finds the probative value of the June 2016 private opinion to be limited due to the conclusory nature of the opinion in light of the literature cited.  H.S., M.D., acknowledged that tobacco use has been conclusively established a significant risk factor for developing esophageal cancer, but cited an article that concedes any potential link between exposure to 2, 3, 7, 8 - tetrachlorodibenzodioxin (TCDD) and esophageal cancer is inconclusive to establish that exposure to herbicide agents and tobacco use are equally significant risk factors in the Veteran's case.  The Board is simply unable to discern how one inconclusive study suggesting a link between exposure to 2, 3, 7, 8 - tetrachlorodibenzodioxin (TCDD) and esophageal cancer can equate to numerous studies that have conclusively established tobacco use as a significant risk factor for esophageal cancer.  N.V., M.D., outlined this field of research in more detail in her opinion, highlighting studies with particularly high confidence intervals to support her opinion that the Veteran's esophageal cancer was more likely the result of tobacco use.

In sum, the Board finds the most probative evidence in this case indicates the Veteran's esophageal cancer was less likely than not the result of his presumed exposure to herbicide agents in service.  There is no other evidence that suggests the Veteran's esophageal cancer was the result of disease or injury in service, and the Appellant has not put forth any alternate theories of entitlement.  As the preponderance of evidence is against a finding that the Veteran's esophageal cancer is the result of his presumed in-service exposure to herbicide agents, the benefit-of-the-doubt doctrine does not apply, and service connection for the Veteran's cause of death must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

II.  Accrued Benefits

An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which a payee was entitled at the time of his or her death under existing ratings or based on evidence in the file at the time of death.  38 U.S.C. § 5121; 38 C.F.R. § 3.1000.  Thus, payment of accrued benefits requires that the Veteran or other payee had a claim for the underlying benefit pending at the time of death or that benefits had been awarded and unpaid at the time of death.  38 U.S.C. §§ 5101 (a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998).

The Veteran's claims file does not reveal that there was a pending claim at the time of his death or that there were benefits that had been awarded and unpaid.  Accordingly, there is no basis under which accrued benefits may be granted.  The facts of this case are not in dispute, and the law is dispositive.  As such, the claim of entitlement to accrued benefits must be denied because of the absence of legal merit.  Sabonis v. Brown, 6 Vet. App. 426 (1994).



ORDER

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

Entitlement to accrued benefits is denied.


REMAND

The AOJ denied entitlement to nonservice-connected death pension benefits on the basis that the Appellant's income exceeds the Maximum Annual Pension Rate (MAPR).  In making this determination, the AOJ did not consider any unreimbursed medical expenses and used the MAPR for a surviving spouse without consideration of aid and attendance.  Since the issuance of an April 2016 statement of the case, VA has received additional evidence that indicates the Appellant has substantial unreimbursed medical expenses, as well as an application for aid and attendance.  Newly received September and October 2017 applications for nonservice-connected death pension benefits that also include a specific claim for aid and attendance list more than $43,000 in unreimbursed medical expenses per year.  The Appellant's initial application for nonservice-connected death pension benefits did not list any unreimbursed medical expenses.  The newly received evidence does not clearly establish when the Appellant's medical situation changed, and there is little to no evidence regarding unreimbursed medical expenses for the period between the initial application for nonservice-connected death pension benefits and the recently received application, a period of almost five years (August 2012 to September 2017).  In light of the newly received evidence, the Board finds further efforts should be made to quantify the Appellant's unreimbursed medical expenses for each annualization period during the pendency of this appeal.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Request a completed VA Form 21P-8416 (Medical Expense Report) from the Appellant for every year during the requisite appeal period (i.e., approximately August 2012 to the present), as well as any other documentation or records that may be necessary to make a complete accounting of her income and excludable expenses for each twelve-month annualization period during the appeal period.  The Appellant must be advised why this information is necessary and that failure to provide the requested information may result in the denial of her claim.

2.  Conduct a thorough accounting of the Appellant's countable income, to include the calculation of the deduction of unreimbursed medical expenses, for each twelve-month annualization period during the appeal period and readjudicate the issue of entitlement of nonservice-connected death pension benefits using the MAPR for a surviving spouse with aid and attendance.  A detailed summary of the accounting for each twelve-month annualization period during the appeal period must be associated with the claims file.

3.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case.  Then, return the case to the Board, if otherwise in order.

The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs