Citation Nr: 1316725 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-13 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from March 1946 to December 1966. He died on March [redacted], 2009, and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in October 2009, a statement of the case was issued in March 2010, and a substantive appeal was received in March 2010. In her substantive appeal, the appellant requested a videoconference Board hearing; however, she withdrew this request in an August 2010 submission. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's death certificate shows that he died in March 2009; the immediate cause of death was myelodysplastic syndrome; and, significant conditions contributing to death but not resulting in the underlying cause were congestive heart failure and peripheral vascular disease. 2. The Veteran did not service in the Republic of Vietnam, and he is not shown to have been exposed to an herbicide agent during service. 3. There is no probative evidence that the Veteran was exposed to radiation during active service. 4. Myelodysplastic syndrome, congestive heart failure, and peripheral vascular disease are not diseases subject to radiation-exposed veterans, and are not radiogenic diseases. 5. Myelodysplastic syndrome, congestive heart failure, and peripheral vascular disease were not manifested during the Veteran's active duty service or for many years thereafter, nor are such disorders otherwise related to active duty service. 6. At the time of the Veteran's death, service connection was in effect for fusion, cervical spine, rated 30 percent disabling, effective January 1, 1967; prostatitis, rated 10 percent disabling effective January 1, 1967 and noncompensably disabling, effective July 1, 1970; hemorrhoidectomy, rated noncompensably disabling, effective January 1, 1967; tonsillectomy, rated noncompensably disabling, effective January 1, 1967; duodenal ulcer, rated noncompensably disabling, effective January 1, 1967; left varicocele, rated noncompensably disabling, effective January 1, 1967; and, hearing loss, rated noncompensably disabling, effective October 1, 1967. 7. A service-connected disability was not the immediate or underlying cause of the Veteran's death, nor was a service-connected disability etiologically related to the cause of the Veteran's death. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed to by, a disability incurred in or aggravated by his active duty service. 38 U.S.C.A. §§ 1116, 1310, 5107 (West 2002); 38 C.F.R. § 3.307, 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the context of a claim for DIC benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. Here, the appellant was sent a letters in July and September 2009 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish an effective date. Such letter complied with Hupp. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the appellant in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and obtaining an opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment and personnel records, as well as the Veteran's death certificate, post-service reports of private treatment, and lay statements and treatise information from the appellant. The Board has carefully reviewed the statements of the appellant and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. As will be discussed in detail below, the Board has determined that a VA opinion is unnecessary in this case with regard to etiology of the Veteran's cause of death. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease 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.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, 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 service. 38 U.S.C.A. § 1116(f). The evidence of record does not reflect that the Veteran had active service in the Republic of Vietnam during the applicable period. The Veteran's service personnel records reflect that during the Veteran's 20 plus years of service he served stateside at multiple Air Force Bases. He also served at Ramey Air Force Base (AFB), Puerto Rico; at Shemya AFB, Aleutian Islands; in Kindley, Bermuda; at Nouasseur AFB, Morocco; and, in Lakenheath, England. There is no evidence to support the appellant's assertions that the Veteran served in the Republic of Vietnam. Thus, the Veteran did not have the requisite type of service in the Republic of Vietnam as defined by 38 C.F.R. §§ 3.313(a) and 3.307(a)(6)(iii), and the presumption of exposure to a herbicide agent under 38 C.F.R. § 3.307 does not apply herein. The appellant asserts that the Veteran was exposed to herbicides while stationed at Carswell AFB, Fort Worth, Texas and while stationed in Guam. His service personnel records do not reflect that he was stationed at Andersen AFB in Guam. In any event, there is no support for the appellant's assertions that the Veteran was exposed to herbicides at Carswell or at any AFB at which he had active service. Review has been made of the Department of Defense listing of herbicide spray areas and test sites outside the Republic of Vietnam and none of his duty stations are listed as locations. The appellant has not otherwise submitted any support for her assertion that the Veteran was exposed to herbicides during his active service. Notwithstanding this, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is not for application as he does not have a presumptive disability. It is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson' disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42,600 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21,258-21260 (May 7, 2009); see also Notice, 75 Fed. Reg. 32540 (June 8, 2010); see also Notice, 77 Fed. Reg. 47924-28 (August 10, 2012). There is no other medical evidence of record to rebut the conclusion that there is no positive association between exposure to Agent Orange and the development of myelodysplastic syndrome, congestive heart failure, and peripheral vascular disease. The Board acknowledges that myelodysplastic syndrome is a blood disorder that may progress to acute myelogenous leukemia, but it does not constitute leukemia for presumptive purposes. http://www.merriam-webster.com/medlineplus/myelodysplastic%20syndrome. For the above reasons, the Board finds that the presumptive regulations regarding exposure to Agent Orange are not applicable in this case. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Thus, presumptive service connection for myelodysplastic syndrome, congestive heart failure, and peripheral vascular disease due to Agent Orange exposure is not warranted. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. The appellant has also asserted that the Veteran was exposed to ionizing radiation during service. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by several different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected, specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, when a "radiogenic disease" first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation. 38 C.F.R. § 3.311(a)(1). Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309(d) or as a radiogenic disease under 38 C.F.R. § 3.311, service connection must still be considered under 38 C.F.R. § 3.303(d) in order to determine whether the disease diagnosed after discharge was incurred during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A "radiation-exposed veteran" is defined as either a veteran who while serving on active duty, or an individual who while serving on active duty for training or inactive duty training, participated in a radiation-risk activity. 38 C.F.R. § 3.309(d)(3)(i). "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan, or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945, through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(ii). The evidence of record, specifically the Veteran's service personnel records, do not reflect that the Veteran participated in a "radiation-risk activity" nor does the evidence reflect that the Veteran served in the vicinity of a "radiation-risk activity." Thus, the Board does not find that the Veteran was exposed to radiation during his period of service. Notwithstanding the above, the Veteran's myelodysplastic syndrome, congestive heart failure, and peripheral vascular disease are not identified as diseases for which the presumption of service connection applies, and section 3.309(d) is not for application in this case. Diseases specific to radiation-exposed veterans for the purpose of presumptive service connection are the following: (i) leukemia (other than chronic lymphocytic leukemia); (ii) cancer of the thyroid; (iii) cancer of the breast; (iv) cancer of the pharynx; (v) cancer of the esophagus; (vi) cancer of the stomach; (vii) cancer of the small intestine; (viii) cancer of the pancreas; (ix) multiple myeloma; (x) lymphomas (except Hodgkin's disease); (xi) cancer of the bile ducts; (xii) cancer of the gall bladder; (xiii) primary liver cancer (except if cirrhosis or hepatitis B is indicated); (xiv) cancer of the salivary gland; (xv) cancer of the urinary tract; (xvii) cancer of the bone; (xviii) cancer of the brain; (xix) cancer of the colon; (xx) cancer of the lung; and (xxi) cancer of the ovary. 38 C.F.R. § 3.309(d)(2). Regarding the second method for establishing service connection, the provisions of 38 C.F.R. § 3.311 provide for development of claims based upon a contention of radiation exposure during active service and post-service development of a radiogenic disease. The purpose of these provisions is to relieve claimants of the burden of having to submit evidence to show that their disease may have been induced by radiation. These provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans or their survivors. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). The governing regulation essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a dose assessment will be made. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. For purposes of 38 C.F.R. § 3.311, a "radiogenic disease" is defined as a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv), (b)(5)(iv). Myelodysplastic syndrome, congestive heart failure, and peripheral vascular disease are not radiogenic diseases, thus these provision are inapplicable. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv). The appellant asserts that the Veteran's death was due to herbicide exposure and/or radiation exposure. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). In other words, the fact that the Veteran may not meet the requirements of a presumptive regulation would not in and of itself preclude establishing service connection, because alternatively service connection can be established by way of proof of actual direct causation. Accordingly, the Board has reviewed the evidence of record to determine if service connection on a direct basis is warranted. In this regard, the Veteran's service treatment records are completely void of any complaints or diagnoses related to myelodysplastic syndrome, congestive heart failure, and peripheral vascular disease. Myelodysplastic syndrome, congestive heart failure, and peripheral vascular disease were diagnosed many years after the Veteran's separation from service. Based on service treatment records being void of myelodysplastic syndrome, congestive heart failure, and peripheral vascular disease, and initial diagnoses of such disabilities many years after separation from service, there is no evidence to support a finding that myelodysplastic syndrome, congestive heart failure, and peripheral vascular disease manifested in service or are otherwise due to service. The Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board also notes none of the Veteran's service-connected disabilities - fusion of the cervical spine, prostatitis, hemorrhoidectomy, tonsillectomy, duodenal ulcer, left varicocele or hearing loss- caused or contributed to his death. Again, the appellant asserts that the Veteran's death was due to herbicide and radiation exposure during service. As detailed above, however, the evidence of record does not support a finding that the Veteran was exposed to herbicides or that he participated in a radiation-risk activity or that he was exposed to radiation during service. Likewise, his cause of death and contributory conditions do not trigger the regulatory provisions for presumptive service connection due to exposure to Agent Orange (38 C.F.R. § 3.309(e)) nor does he have a radiogenic disease. The appellant has not otherwise submitted any evidence in support of her assertion that the Veteran's death is due to herbicide or radiation exposure. The Board has considered the appellant's contention that a relationship exists between the Veteran's death and his service, to include her belief that his death is due to exposure to herbicides or radiation in service. The appellant, however, is not competent to offer an opinion as to the etiology of the Veteran's cause of death as she does not have the requisite medical expertise. Indeed, an appellant's ability to render an opinion of etiology is limited to observable, immediate cause-and-effect relationships, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the Veteran's cause of death and contributory causes to death were not shown in service, and the records contain no suggestion of a causal link between his cause of death and active service, to include herbicide and radiation exposure, the Board finds that the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death. The Board declines to obtain a medical nexus opinion with respect to the issue of entitlement to service connection for the cause of the Veteran's death, because there is no evidence of pertinent disability in service, and no evidence suggesting a relationship between his service and cause of death. The conditions that caused his death were diagnosed many years after separation from service, and there is no true indication that his conditions are associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Charles v. Principi, 16 Vet. App. 370 (2002). Indeed, in view of negative service treatment records, and the lack of diagnosis of the conditions which caused his death for many year post-service, any opinion relating pertinent disability to service would certainly be speculative. Moreover, the evidence of record does not suggest that the Veteran's myelodysplastic syndrome, congestive heart failure, and peripheral vascular disease are due to herbicide or radiation exposure. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked, even under McLendon or Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. 5103A(a)(2). The Board acknowledges the medical treatise evidence submitted by the appellant. Such reports can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, both Federal regulation and caselaw preclude granting service connection predicated on a result of speculation or mere possibility. 38 C.F.R. § 3.102; see Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991) (a medical treatise submitted by an appellant that only raises the possibility that there may be some relationship between sickle cell anemia and the veteran's fatal coronary artery disease does not show a direct causal relationship between the two disorders such as to entitle the appellant to service connection for the cause of the veteran's death). Further, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated medical opinion. Sack v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus), and Mattern v. West, 12 Vet. App. 222, 228 (1999). In this case, however, the appellant has not submitted an opinion from a medical professional to accompany the treatise evidence. Moreover, the evidence pertains to herbicide and radiation exposure and associated diseases; however, it has not been established that the Veteran was exposed to herbicides and radiation. The medical articles submitted by the appellant are insufficient to establish a nexus between the cause of the Veteran's death and his active service. The appellant has not otherwise submitted any evidence in support of her assertion that the Veteran's cause of death was due to his active service. The Board also notes that the Veteran has filed a copy of prior Board decision wherein the claimant was granted service connection for myelodysplastic syndrome. The decision is based on a different facts and evidence than in the present case. Moreover, Board decisions are nonprecedential in nature. See 38 C.F.R. § 20.1303 (2012). In sum, the Board is compelled to conclude that the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death. It follows that the Board is unable to find such a state of approximate balance of the positive evidence to otherwise warrant a favorable decision. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs