Citation Nr: 21007328 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-13 733 DATE: February 9, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death for purposes of service-connected burial benefits is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in November 2012. The death certificate lists the immediate cause of death as esophageal cancer. 2. At the time of death, the Veteran he had not been granted service connection for any disability. 3. The weight of the probative evidence of record does not show that the Veteran’s esophageal cancer manifested in service or is otherwise attributable to his military service, to include Agent Orange exposure. 4. The Veteran’s death was not due to a service-connected disability and/or otherwise attributable to his military service. 5. The Appellant’s application for accrued benefits was received in January 2014, more than one year following the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.312. 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1964 to September 1967. Unfortunately, he died in November 2012. The Appellant is his surviving son. As a threshold matter, the Board notes that the appellant is only seeking service-connection for the cause of the Veteran’s death for purposes of burial benefits under 38 C.F.R. § 3.1704. Further, as the evidence demonstrates that he was the Veteran’s son, he is a proper claimant in this matter. See 38 C.F.R. § 3.1702. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 and March 2014 decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant requested a Board hearing in his February 2017 substantive appeal to the Board, via VA Form 9. A hearing was scheduled in March 2020, but he was listed as a “no show.” To date, the Appellant has not requested that the hearing be rescheduled. As such, the Board finds that the request for a hearing has been withdrawn. 38 C.F.R. § 20.704(d). 1. Entitlement to service connection for the cause of the Veteran's death for purposes of service-connected burial benefits The cause of a veteran’s death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). This question will be resolved by the use 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). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, 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). Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For certain diseases with a relationship to herbicide agent exposure, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962, to May 7, 1975, or following service in a unit that operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied at any time during the period from April 1, 1968, to August 31, 1971. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The diseases for which the presumption applies are as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction); atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease early-onset 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). The Veteran died in November 2012, at the age of 66. His death certificate lists the immediate cause of death as metastatic esophageal cancer. An autopsy was not performed. The probable manner of death was natural. Given, that the death certificate lists the immediate cause of death as esophageal cancer, the first element of service connection, a current disability, has been established. Because esophageal cancer is not on the presumptive list for herbicide exposure, the Board will not engage in an analysis of entitlement to service connection on a presumptive basis and will instead review the claim only on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1042 (1994); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). At the time of the Veteran’s death, service connection had not been established for any disability. Although the Veteran filed an application in April 2012 requesting service connection for diabetes mellitus and cancer, he died prior to adjudication of the claims. See VA Form 21-526, Veterans Application for Compensation or Pension. The Board has addressed the question of whether the Appellant is entitled to accrued benefits in detail below. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The Appellant asserts that the Veteran’s death was due to lung cancer. See February 2017 VA Form 9. Initially, the Board will consider whether the Veteran’s esophageal cancer, listed as the cause of death, was related to his military service. See Death Certificate. Service treatment records (STRs) contain no complaints of or treatment for esophageal cancer. The Appellant has not identified, and the claims file does not suggest that there are, any outstanding records. The DD Form 214 shows that the Veteran was a recipient of the Vietnam Service Medal, Vietnam Campaign Medal, and Bronze Star Medal. Military personnel records show service in the Republic of Vietnam from September 1966 to September 1967. Thus, exposure to herbicides (Agent Orange) is presumed. On November 12, 2012 the Veteran was admitted to a VA facility to treat pneumonia. A past medical history of stage IV esophageal cancer metastatic to brain with lymphangitic carcinoma, hypertension, coronary artery disease (CAD), and diabetes mellitus were provided. During the hospital course, he was treated for pneumonia for five days, but there was no evidence of pneumonia, so treatment stopped. Medical records note, “Pt’s symptoms were suspected to be all related to progression of his cancer.” Due to his health status, chemotherapy was not an option. From November 18, 2012 to November 20, 2012, the Veteran experienced an increase in oxygen requirement given the worsening of his respiratory status. Unfortunately, the Veteran died on November [REDACTED], 2012. Discharge diagnoses of stage IV esophageal cancer metastatic to brain with lymphangitic carcinomatosis not amenable to palliative chemotherapy, and respiratory distress due to extensive carcinoma, were provided. His death certificate solely lists the immediate cause of death as esophageal cancer. Turning to the third element, the Appellant has not met his burden of proof. The Appellant has argued that the Veteran’s esophageal cancer is attributable to his Agent Orange exposure in service. There is no opinion from any competent medical professional adopting a similar view. The Board notes that cancer is not a simple ailment; rather, it is medically complex, capable of multiple etiologies, does not lend itself to lay observation, and has a myriad of risk factors. As such, the Appellant is not competent to render an opinion that the Veteran’s esophageal cancer was due to exposure to herbicides. See Jandreau v. Nicholson, 492 F.3d 1372, 137677 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnosis cancer); Rucker v. Brown, 10 Vet. App. 67, 74 (1999) (holding that a veteran is not competent to diagnose or render a nexus opinion about a disorder as complex as carcinoma). To the extent the Appellant contends that the Veteran died from lung cancer, he is not competent to provide an opinion on the cause of the Veteran’s death. See Jandreau, 492 F.3d, 137677 n.4 (Fed. Cir. 2007). Here, the death certificate solely lists esophageal cancer as the cause of death. The Board concedes that the Veteran had respiratory problems during his November 2012 hospitalization leading up to his death, however, medical records show that respiratory distress originated from esophageal cancer. November 2012 VA records list discharge diagnoses of stage IV esophageal cancer metastatic to brain with lymphangitic carcinomatosis not amenable to palliative chemotherapy, and respiratory distress due to extensive carcinoma. Further, during the hospitalization, medical records explicitly state that the Veteran’s symptoms, including respiratory distress, were due to the progression of his esophageal cancer. The Board acknowledges that no VA opinion pertinent to esophageal cancer has been obtained in this case. However, there is no competent evidence suggesting a link between the Veteran’s esophageal cancer and his in-service exposure to herbicide agents or any other in-service disease or injury. Thus, VA has no duty to obtain a medical opinion on esophageal cancer in this case. Mclendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board reiterates that at the time of the Veteran’s death service connection had not been established for any disability. Despite the Veteran not having any service-connected disabilities at the time of death, the AOJ requested a VA opinion on whether the Veteran’s nonservice-connected diabetes mellitus and coronary artery disease (CAD), including medication, caused or contributed to the Veteran’s death. In December 2016, a VA examiner opined that it is not at least as likely as not that the Veteran’s diabetes mellitus, CAD, and associated medication caused or substantially contributed to the Veteran’s death. As rationale, the examiner referenced 2011 VA medical records showing that diabetes mellitus and CAD were stable at the time of the Veteran’s death, and the certificate of death solely listing esophageal cancer as the cause of death. The examiner stated that diabetes mellitus and CAD medication would not have any effect on esophageal cancer. Further, the examiner opined that service treatment records did not reveal any diagnosis that would have contributed to the Veteran’s death. Based on the foregoing, there is no evidence to support that the Veteran’s death is directly related to his military service. As the condition which caused or contributed to the Veteran’s death, was not shown in service, and the record contains no indication of a possible link between death and service, the Board finds that the preponderance of the evidence is against the Appellant’s claim for service connection for the cause of the Veteran’s death. Because the preponderance of the evidence weighs against the claim for service connection for the Veteran’s cause of death, the appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Appellant a favorable decision. See 38 U.S.C. §§ 1310, 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a), 3.312. 2. Entitlement to accrued benefits Accrued benefits are defined as “periodic monetary benefits... authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid....” 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). An application for accrued benefits is required to be filed within one year after the date of death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). See Shields v. Brown, 8 Vet. App. 346, 348-49 (1995). Here, the Veteran died in November 2012. VA received a claim from the Appellant for accrued benefits in January 2014. See January 2014 VA Form 21-601, Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary. As the Veteran died in November 2012, the January 2014 claim for accrued benefits was untimely filed. The Board acknowledges that the Appellant also filed a VA Form 21-0847 Request for Substitution of Claimant Upon Death of Claimant, in December 2013; and a VA Form 21-534, Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child (including Accrued Benefits and Death Compensation, where Applicable), in January 2014. However, because VA received both applications more than one year after the Veteran’s November 2012 death, these forms were also untimely. Therefore, as a review of the record illustrates that no timely informal or formal claim was filed within one year of the Veteran’s death, the Appellant’s claim for accrued benefits must be denied. (Continued on the next page)   The Board is sympathetic to the Appellant’s loss; however, the law pertaining to eligibility for accrued benefits is dispositive of this issue, and the Appellant’s claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.