Citation Nr: 0605501
Decision Date: 02/24/06 Archive Date: 06/16/06
DOCKET NO. 03-02 983 DATE FEB 24 2006
On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico
THE ISSUE
Entitlement to service connection for the cause of the veteran's death.
WITNESSES AT HEARING ON APPEAL
Appellant and her sister-in-law
ATTORNEY FOR THE BOARD
L. Cryan, Counsel
INTRODUCTION
The veteran served on active duty from June 1955 to June 1981, to include a period of service in the Republic of Vietnam. The veteran died in October 2001, and the appellant is his surviving spouse.
This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in Albuquerque, New Mexico.
In March 2003, the appellant and her sister-in-law testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of the testimony is associated with the claims file.
In September 2003, the Board remanded the case back to the RO/AMC for additional development and adjudicative action. Additional development was undertaken and the case was subsequently returned to the Board.
FINDINGS OF FACT
1. The veteran's certificate of death reveals that the veteran died in October 2001 as a result of respiratory failure, due to (or as a consequence of) fungemia/sepsis, neutropenia, and stage IV head and neck cancer. Renal failure was listed as a significant condition contributing to death, but not resulting in the underlying cause.
2. At the time of the veteran's death, service connection was not established for any disability.
3. The veteran's active service included a period of service in Vietnam; he is presumed exposed to herbicides while serving in Vietnam.
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4. The veteran's head and neck cancer, (squamous cell carcinoma of the left tonsil), was first shown in 2001, almost 20 years after the veteran's separation from service, and no competent information or evidence of record indicates that the veteran's
cancer(s), including a history of skin cancer, may be associated with any event, injury, or disease in service, including exposure to herbicide agents during service in Vietnam.
CONCLUSION OF LAW
The cause of the veteran's death was not incurred in active service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 1137, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant, the veteran's widow in this case, asserts that the veteran's exposure to herbicides during service in Vietnam contributed substantially to cause the veteran's cancer, which ultimately led to his demise in October 2001. More specifically, the
appellant asserts that the veteran developed skin cancers on his face during service, including basal cell carcinoma, which she believes led to his stage IV cancer of the head and neck (squamous cell carcinoma of the left tonsil), which ultimately led to the veteran's death.
I. Duties to Notify and Assist
As required by 38 U.S.C.A. § 5103(a), prior to the initial unfavorable agency of original jurisdiction (AOJ) decision, the claimant must be provided notice
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consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claims, or something to the effect that the claimant should give us everything you've got pertaining to your claims.
In this case, the appellant was provided with a duty-to-assist notice letter in December 2001, prior to the unfavorable April 2002 rating decision. As such, the Board finds no defect with the timing of the notice letter. That notice, along with subsequent notice letters sent to the appellant in April 2004, October 2004 and November 2004 included the type of evidence needed to substantiate the claim for service connection for the cause of the veteran's death. In addition, the RO informed the appellant about the information and evidence that VA will seek to provide including the veteran's service medical records and other relevant medical records which the appellant informed VA about. The notice letters also informed the appellant about the information and evidence she was expected to provide. Those letters also informed the appellant that she should tell the RO about any additional information or evidence that she wanted the RO to obtain, and that she should submit all evidence in her possession that pertained to her claim.
Moreover, the April 2002 rating decision and the November 2002 statement of the case (SOC) explained, in detail, the reason for the denial of the appellant's claim. The appellant also offered testimony in support of her claim at a personal hearing. The Board finds that the appellant was provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. The duty to notify the appellant was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103 (West 2002).
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VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5l03A (West 2002); 38 C.F.R. § 3.159 (2005). In the present case, the evidence includes the service medical records, VA medical records, Army hospital records, private medical records, and written statements and testimony from the appellant. The Board is mindful that there are medical records identified by the appellant which are not associated with the claims file. Unfortunately, the appellant and VA have been unsuccessful in obtaining those records, and it does not appear that there are any other additional available records that are necessary to obtain before proceeding to a decision in this case.
In addition, the Board is aware that a medical nexus opinion was not obtained by VA for the purpose of determining the likely etiology of the veteran's cancer(s). However, the Board finds that any opinion obtained for that purpose would amount to speculation given the record in this case. In so concluding, the Board notes that VA regulations provide that VA will assist the appellant by providing a medical examination or obtaining a medical opinion based upon review of the evidence of record if VA determines that it is necessary to decide the claim. 38 C.F.R. §
3. 1 59(c)(4)(i) (2005). The regulations further provide, in pertinent part, that a medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but:
(A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the veteran suffered an event, injury, or disease in service; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3. 159(c)(4)(i) (2005). Because the record contains absolutely no competent evidence showing even a possibility of a causal connection between the veteran's cancer(s) and any disease, injury or event in service, it is not
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necessary to obtain a medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i) (2005); Duenas v. Principi, 18 Vet. App. 512, 517 (2004),
citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease).
In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist under the VCAA. 38 U.S.C.A. §§ 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2005).
II Cause of Death
The law provides dependency and indemnity compensation (DIC) for the spouse of a veteran who dies from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002). Service connection may be established for the cause of a veteran's death when a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2005). A service-connected disability is the principal cause of death when that 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) (2005). A contributory cause of death must be causally connected to the death and must have 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)(I) (2005). Issues involved in a survivor's claim for DIC based on the cause of the veteran's death under section 1310 of the statute is decided without regard to any prior disposition of those issues during the veteran's lifetime.
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Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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) (2005). 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) (2005).
Service connection for certain chronic diseases, including malignant tumors, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2005). In addition, the law provides a presumption of service connection for certain diseases that become manifest after separation from service for veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2005). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2005).
A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (2005).
If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, even though there is no
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record of such disease during service: chloracne or other acnefonn diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea) and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (2005).
In this case, the death certificate shows that the immediate cause of the veteran's death was a result of respiratory failure, due to (or as a consequence of) fungemia/sepsis, neutropenia, and Stage IV head and neck cancer. Renal failure was listed as a significant condition contributing to death, but not resulting in the underlying cause.
At the time of the veteran's death, service connection was not established for any disability.
The evidence does not demonstrate that the veteran's cancer began during his period of active service or within one year after his discharge from service. The veteran's service medical records do not reflect treatment for cancer of the tonsil, head, neck, or basal cell carcinoma, and no such disorders were noted on service medical examination reports. The service medical records do reveal that the veteran was treated for skin irritations during service. For example, in October 1966, the veteran was diagnosed with atopic dermatitis. In December 1966, the veteran was noted to have pyoderma on the face. In September 1967, the veteran reported a skin lesion on his right groin of six weeks duration. No cancer of any kind was diagnosed or suspected during service and the medical evidence of record does not suggest that cancer of any kind was diagnosed within a year after separation from service.
Nonetheless, because the veteran was exposed to Agent Orange during service in Vietnam, VA must consider whether the veteran's death was caused by a disease for
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which service connection is granted on a presumptive basis due to in-service herbicide exposure. These specific diseases are listed under 38 C.F.R. § 3.309(e) (2005), as noted hereinabove. Neither cancer of the head and/or neck, squamous cell carcinoma of the tonsil, nor basal cell carcinoma are diseases that the Secretary has deemed to have a positive association between exposure to herbicides and occurrence of a disease, based on sound medical and scientific evidence. See 38 U.S.C.A. § 1116 (West 2002). As such, service connection for the cause of the veteran's death on a presumptive basis is not warranted.
That notwithstanding, the Board must still consider whether service connection for the cause of the veteran's death is warranted on a direct basis. For the reasons set forth hereinbelow, the Board finds that service connection for the cause of the veteran's death is not warranted.
Post-service medical records from the William Beaumont US Army Medical Center reveal that the veteran discovered a left neck mass in December 2000. In February 2001, the veteran was diagnosed with squamous cell carcinoma of the left tonsil. A past history significant for melanoma/skin cancer of the face and neck is noted on various medical records associated with the treatment and diagnosis of the carcinoma of the left tonsil, although none of the aforementioned medical records note a link between the veteran's history of melanoma and the squamous cell carcinoma of the left tonsil.
Records from 1993 through 1997 reveal that the veteran had multiple lesions removed from his face, with diagnoses of basal cell carcinoma in 1993 and 1997. A 1993 consultation note indicates that the veteran had a history of melanoma 7 or 8 years prior; however, once again, there is no medical evidence which links the basal cell carcinoma or the history of melanoma to service, or to the squamous cell carcinoma of the left tonsil which ultimately resulted in the veteran's demise. Even if a link was ultimately established between the veteran's history of melanoma and/or basal cell carcinoma, and the veteran's squamous cell carcinoma of the left
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tonsil, neither the history of melanoma, nor the basal cell carcinoma are shown during service, or within a year after discharge from service. Although the appellant testified that the veteran developed a mole on his face during service in 1981, which later developed into cancer, the medical evidence of record does not support the appellant's assertions. The Board may consider only independent medical evidence to support the findings, and must cite to competent evidence of record to support its conclusions. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991)
The Board once again notes that attempts to obtain records prior to 1993, from the William Beaumont US Army Medical Center and other facilities identified by the appellant, have been unsuccessful.
Nevertheless, as noted hereinabove, the veteran's squamous cell carcinoma of the left tonsil was not diagnosed until February 2001, nearly twenty years after separation from service, and the evidence of record in this case does not contain a medical opinion which links, in any way, the veteran's squamous cell carcinoma of the left tonsil to any in-service disease or injury, or in-service exposure to herbicides. Additionally, none of the medical evidence suggests that the veteran's immediate or contributing causes of death are causally related to service.
Furthermore, a diagnosis of basal cell carcinoma and/or skin cancer on the face is not shown until 1993, with a history of melanoma noted 7 or 8 years prior. Thus, even if a link was found between the veteran's skin cancer and the squamous cell
carcinoma of the left tonsil, the medical evidence of record does not show that the skin cancer was incurred in or aggravated by service, or that it was first manifest within a year after separation from service.
In brief, the medical evidence does not demonstrate the presence of any cancer during service, and, in fact, shows that the squamous cell carcinoma of the left tonsil, which ultimately led to the veteran's demise, was initially manifested at a
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period considerably removed from the veteran's separation from his last period of service. Moreover, there is no evidence of record, other than the appellant's contentions, that the veteran's cause of death from cancer was due to in-service herbicide exposure. As the appellant is not a medical expert, she is not competent to express an authoritative opinion on this issue. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993). The record contains no evidence or opinion to support the appellant's contentions.
In addition, since neither the squamous cell carcinoma of the tonsil, nor any other cancer was manifested to a compensable degree within one year following the veteran's separation from service, and the diseases are not ones for which a positive association to herbicide exposure has been found, the laws and regulations governing presumptive service connection are not for application. 38 C.F.R. §§ 3.307(a)(3), 3.307(a)(6), 3.309(a), 3.309(e) (2005).
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.").
Although the appellant is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as
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here, the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the veteran's death. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
In view of the foregoing, the Board must conclude that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the veteran's death. Her claim, accordingly, must be denied.
ORDER
Service connection for the cause of the veteran's death is denied.
M. Sabulsky
Veterans Law Judge, Board of Veterans' Appeals
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