Citation Nr: 18146342 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-19 697 DATE: October 31, 2018 ORDER Entitlement to service connection for prostate cancer, for accrued benefits purposes, is granted. Entitlement to service connection for a traumatic brain injury (TBI) for is denied. Entitlement to an increased disability evaluation for residuals of a right zygomatic complex fracture with a Le Fort fracture, type I is denied. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied. Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran had service on the U.S.S. Shangri-La while it was in the Gulf of Tonkin in Vietnam, and was transferred to Da Nang, Vietnam for a period of 3 weeks in April to May 1970; the Veteran is presumed to have been exposed to herbicides, including Agent Orange. 2. The Veteran had prostate cancer. 3. At the time of the Veteran’s death, he was service connected for lumbosacral strain, left ear hearing loss, residuals of an appendectomy, right ankle sprain, and right zygomatic complex fracture, left Le Fort’s I fracture; a combined disability evaluation of 10 percent was in effect. 4. The Veteran died in September 2010; the immediate cause of death was prostate cancer. 5. The Veteran’s prostate cancer contributed substantially and materially to the Veteran’s cause of death. 6. The Veteran had a closed head injury in service. The Veteran’s blurred vision, migraines, memory loss, and numbness of arm, hands and fingers, claimed as residuals of a TBI, are not attributable to service. 7. The Veteran’s service-connected residuals a right zygomatic complex fracture with a Le Fort fracture, type I, were asymptomatic. 8. During his lifetime, the Veteran was not a former prisoner of war (POW) and he was not in receipt of or entitled to receive compensation at the 100 percent rate due to service-connected disability for a period of at least five years immediately after his discharge from active service or for 10 or more years prior to his death. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. A disability incurred in service contributed substantially and materially to the cause of the Veteran’s death. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2018). 3. The criteria for service connection for TBI have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 4. The criteria for a compensable disability evaluation for residuals of a right zygomatic complex fracture with a Le Fort fracture, type I have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Code 7800 (2018). 5. The criteria for entitlement to benefits pursuant to 38 U.S.C. § 1318 are not met. 38 U.S.C. §§ 1318, 5107; 38 C.F.R. §§ 3.102, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1967 to March 1971, June 1974 to June 1978, and from March 1979 to September 1992. He died on September [redacted], 2010. The appellant claims as his surviving spouse. Initially, the Board would like to express its sympathy to the appellant for her loss and recognize the Veteran’s years of excellent service to this country in the United States Navy. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The appellant’s claims were remanded in December 2015 for additional development and due process considerations. A supplemental statement of the case was most recently issued in April 2017. The case was returned to the Board for appellate consideration. As an initial matter, the Board finds that the appellant, as the Veteran’s surviving spouse, has been substituted for the Veteran regarding the claims of entitlement to service connection for prostate cancer and TBI, and the claim for an increased disability evaluation for residuals of a right zygomatic complex fracture. The RO’s adjudication of accrued benefits claims implicitly recognized the appellant’s substitution. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(c)(2) (2018). Consequently, remand is not required for the RO to adjudicate this question in the first instance. Service Connection Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued a notice letter to the Veteran. These letters explained the evidence necessary to substantiate the Veteran’s initial claim of entitlement to service connection and the legal criteria for entitlement to such benefits; the Veteran’s claim for an increased disability rating is downstream from his claim for service connection. The letter also informed him of his and VA’s respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be “necessary” to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran’s available service treatment records, reports of post-service treatment, and the Veteran’s own statements in support of his claims. A VA medical opinion was obtained in response to the claim of entitlement to service connection for a traumatic brain injury. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinion was conducted by a medical professional, following thorough review of the Veteran’s history, including a review of the claims file. The Board has reviewed the Veteran’s statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran’s claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, such as cardiovascular diseases and diabetes mellitus, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin’s disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). As an initial matter, the Board notes that the Veteran’s service personnel records reflect that the Veteran served aboard the U.S.S. Shangri-La from 1967 to 1970. According to records from the National Archives and Records Administration (NARA) and the National Personnel Records Center (NPRC), during this period, the U.S.S. Shangri-La had service in the Gulf of Tonkin, Vietnam and assisted in combat operations at Yankee Station in Vietnam. The Veteran’s service personnel records, namely his Transfers and Receipts records, indicate that the Veteran was transferred to Da Nang, Vietnam for approximately 3 weeks in April and May 1970. Based on the above, the Board finds that it is reasonable to assume that the Veteran had service on the shores or inland waterways of Vietnam, as asserted by the Veteran and the appellant. The Veteran, and in his absence, the appellant, credibly reported that he went ashore in Vietnam in conjunction with other crew members aboard the U.S.S. Shangri-La. The Board finds the Veteran’s statements were credible as they are consistent with the circumstances of his service. See 38 U.S.C. § 1154(a). See also Caluza v. Brown, 7 Vet. App. 498 (1995). The probative, credible evidence demonstrates that the Veteran was exposed to Agent Orange during active duty, and the presumptions outlined in 38 C.F.R. § 3.309(e) are applicable. 38 C.F.R. § 3.307(a)(6)(iv). At the outset, the Board notes that the Veteran did not claim, and the evidence does not reflect, that the Veteran’s prostate cancer and TBI were incurred during combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 are not applicable. 1. Entitlement to service connection for prostate cancer. The medical evidence of record confirms that the Veteran was diagnosed with and treated for prostate cancer; this disease is presumptively associated with exposure to certain herbicide agents. 38 C.F.R. §§ 3.307(a), 3.309(e). See private medical records from Brookwood Medical Center and Dr. T. As there is probative, credible evidence that the Veteran was exposed to herbicides during active duty, service connection for prostate cancer can be awarded on a presumptive basis. 2. Entitlement to service connection for a traumatic brain injury (TBI) Based on the evidence of record, the Board finds that the Veteran’s claim of entitlement to service connection for a traumatic brain injury is denied. The Board acknowledges that the Veteran had a closed head injury in service, and notes that, at the time of his death, the Veteran was service connected for residuals of a right zygomatic complex fracture with a Le Fort fracture, type I. The Board also notes that the Veteran was asymptomatic at separation from service. In claiming service connection for a traumatic brain injury related to the July 1977 closed head injury, the Veteran alleged that he experienced blurred vision, migraines, memory loss, transient ischemic strokes, and numbness of arm, hands and fingers as a result of the in-service closed head injury. Nonetheless, there is no competent evidence of a relationship between the Veteran’s blurred vision, migraines, memory loss, transient ischemic strokes, and numbness of arm, hands and fingers and his active service or his service-connected residuals of a right zygomatic complex fracture with a Le Fort fracture, type I. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran’s service and the disability). Review of the record shows that neither the Veteran’s treating providers, nor the May 2016 VA examiner, have related the Veteran’s blurred vision, migraines, memory loss, transient ischemic strokes, and numbness of arm, hands and fingers to his service or his service-connected residuals of a right zygomatic complex fracture with a Le Fort fracture, type I. In this regard, the Board points out that the Veteran and the appellant did not demonstrate continuous treatment for these symptoms since the Veteran’s service, and none of the symptoms were noted in service; the Board points out that the Veteran was discharged approximately 15 years after the closed head injury. Continuity of symptomatology during service, let alone after service, has not been demonstrated. Moreover, the Board observes that the medical evidence of record clearly indicated that the Veteran’s blurred vision, migraines, memory loss, transient ischemic strokes, and numbness of arm, hands and fingers were attributable to other etiologies. To this point, the Board observes that the Veteran had a second closed head injury in 2005, and that the Veteran’s transient ischemic strokes were attributed to the Veteran’s hypertension; the May 2016 VA examiner noted that the Veteran’s complaints of numbness were related to the transient ischemic strokes. The VA examiner also noted that the Veteran’s tension headaches did not begin until 2004, and contemporaneous treatment records reflect that his headaches were not attributed to the Veteran’s service or service-connected residuals of a right zygomatic complex fracture with a Le Fort fracture, type I. In short, the VA examiner and the Veteran's treatment records indicate that the Veteran’s complaints were associated with the intercurrent injuries and diseases many years following service. See 38 C.F.R. § 3.303(b) (subsequent, isolated manifestations of a chronic disorder are not service connected where they are clearly attributable to intercurrent causes). In addition, the May 2016 VA medical opinion, supported by the contemporaneous treatment records reflect that, although the Veteran had a closed head injury in service, he did not meet the criteria for a diagnosis of traumatic brain injury. The May 2016 VA examiner noted that the Veteran’s alleged symptoms of blurred vision, migraines, memory loss, and numbness of arm, hands and fingers, are symptoms that would have occurred at the time of the initial injury, and none were shown in the Veteran’s available service treatment records; the time lapse between the Veteran’s in-service injury and the onset of his symptoms, and the onset of hypertension and headaches in the interim, indicate the Veteran’s complaints of blurred vision, migraines, memory loss, and numbness of arm, hands and fingers were not related to the head injury or residual facial fractures which occurred in 1977. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). To the extent that there are lay statements, including those of the Veteran and the appellant, asserting a connection between the Veteran’s blurred vision, migraines, memory loss, and numbness of arm, hands and fingers and either his active service or his service-connected residuals of a right zygomatic complex fracture with a Le Fort fracture, type I, the Board finds that the determining the etiology of the Veteran’s blurred vision, migraines, memory loss, and numbness of arm, hands and fingers is beyond the competence of a lay person. While the Veteran, and other lay persons, are competent to report numbness, blurred vision, and other observable symptoms, the cause of those symptoms and whether those symptoms are aggravated by another disability, are medical questions that require medical training, knowledge and expertise. Thus, these opinions are not competent. Further, even if the statements were to be found competent, the Board finds that the probative value of the general lay assertions is outweighed by the specific, well-reasoned opinion of the May 2016 VA examiner and the clinical evidence of record. The VA examiner explained the reasons for the conclusions reached and based the findings on an accurate characterization of the evidence of record. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for TBI and the claim is denied. Increased Disability Evaluation 3. Entitlement to an increased disability evaluation for residuals of a right zygomatic complex fracture with a Le Fort fracture, type I, for accrued benefits purposes, The Veteran’s service-connected residuals of a right zygomatic complex fracture with a Le Fort fracture, type I, was rated as noncompensable pursuant to Diagnostic Code 7800. See 38 C.F.R. § 4.20. Diagnostic Code 7800 provides ratings for scars or other disfigurement of the head, face, or neck. A 10 percent disability evaluation is for assignment where there is one characteristic of disfigurement. A 30 percent disability evaluation is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or three characteristics of disfigurement. For the next higher, 50 percent disability evaluation, there must be visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or four or five characteristics of disfigurement. For an 80 percent disability rating there must be visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or at least six characteristics of disfigurement. See 38 C.F.R. § 4.118, Diagnostic Code 7800. Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are the following: scar is 5 or more inches (13 or more centimeters) in length; scar is at least one-quarter inch (0.6 cm.) wide at the widest part; surface contour of scar is elevated or depressed on palpation; scar is adherent to underlying tissue; skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Diagnostic Code 7804 pertains to unstable or painful scars. One or two scars that are unstable or painful are 10 percent disabling, and three or four scars that are unstable or painful are 20 percent disabling. Five or more scars that are unstable or painful are 30 percent disabling. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804. After a review of all the evidence, the Board finds that the Veteran’s residuals of a right zygomatic complex fracture with a Le Fort fracture, type I, did not approximate the criteria for a higher, compensable disability evaluation for the entire rating period under Diagnostic Codes 7800 or 7804. At the time of the Veteran’s death, there was no evidence that the Veteran’s residuals of a right zygomatic complex fracture with a Le Fort fracture, type I, were symptomatic. A review of the Veteran’s claims file reflects that, at the time service connection was granted, in August 1993, the Veteran failed to report for a VA examination so that the Veteran’s scar or other residuals could be evaluated. As such, the Board must assume that the Veteran did not have any symptoms, including any characteristics of disfigurement. Therefore, a higher, compensable rating is not warranted for his forehead scar, residual of skin cancer, under Diagnostic Code 7800. See 38 C.F.R. §§ 4.118, Diagnostic Codes 7800, 7804. Dependency and Indemnity Compensation 4. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. 1318 VA law provides benefits to the surviving spouse and to the children of a deceased veteran in the same manner as if the veteran’s death were service connected when the death is not the result of the veteran’s own willful misconduct and the Veteran was in receipt of or entitled to receive (or but for the receipt of retired or retirement pay was entitled to receive) compensation at the time of death for a service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran’s discharge or other release from active duty; or (3) the veteran was a former POW 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. The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). Regulations provide that the term “entitled to receive” means that the veteran filed a claim for disability compensation during his or her 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 period specified 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. See 38 C.F.R. § 3.22(b); see also Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009). As noted above, the Veteran was discharged from service in September 1992 and died in September 2010. In June 1993 and August 1993 rating decisions, service connection was granted for a lumbosacral strain, left ear hearing loss, residuals of an appendectomy, right ankle sprain, and right zygomatic complex fracture, left Le Fort’s I fracture. Noncompensable disability evaluations were assigned, except for a 10 percent disability evaluation for lumbosacral strain. The effective date was October 1, 1992. As previously discussed, service connection for prostate cancer has been granted. The Board observes that the Veteran filed his claim for service connection of prostate cancer in August 2010. After a full review of the record, and taking into account the Board’s grant of service connection for prostate cancer, the Board finds that the Veteran was not continuously rated totally disabled (either schedular or based on unemployability) for a period of at least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for a period of not less than five years immediately preceding his death. Because the durational requirements for a total disability rating under 38 U.S.C. § 1318 have not been met, nor has the evidentiary record shown the Veteran was former prisoner of war, entitlement to DIC benefits under 38 U.S.C. § 1318 is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). 5. Entitlement to service connection for the cause of the Veteran's death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5 (2018). A veteran’s death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected 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) (2018). The service-connected disability will be considered as 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 contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a veteran’s death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; 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). Given that the death certificate finds that the Veteran died of prostate cancer, service connection for the cause of the Veteran’s death is warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel