Citation Nr: 0716355
Decision Date: 06/01/07 Archive Date: 06/18/07
DOCKET NO.  00-01 292 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1.  Entitlement to service connection for emphysema for
accrued benefit purposes. 
2.  Entitlement to service connection for papillary
adenocarcinoma of the gastroesophageal junction (throat
cancer) for accrued benefit purposes. 
3.  Entitlement to service connection for the cause of the
veteran's death on a direct basis. 
4.  Entitlement to dependency and indemnity compensation
(DIC) for the cause of the veteran's death, under the
provisions of 38 U.S.C.A. § 1151 (West 2002 and Supp.  2006). 
REPRESENTATION
Appellant represented by: Thomas Prindiville Higgins,
Attorney
ATTORNEY FOR THE BOARD
W. Preston, Associate Counsel
INTRODUCTION
The veteran had active duty service from February 1944 to
November 1945.  He died in November 1997.  The appellant is
his widow. 
This appeal was initially before the Board of Veterans'
Appeals (Board) from a July 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Buffalo, New York. 
In July 2003, the Board denied entitlement to DIC under 38
USCA § 1151 for the cause of the veteran's death.  Pursuant
to a Joint Motion for Remand (Motion), the United States
Court of Appeals for Veterans Claims (Court), in a July 2004
Order, vacated and remanded the Board's decision for
compliance with the instructions in the Motion.  The Board
remanded the appellant's case in September 2004. 
The Board's remand noted that on appeal the appellant had
raised claims of entitlement to accrued benefits based on
claims of entitlement to service connection for throat
cancer, emphysema, cataracts, and a heart disorder.  She also
had raised the issue of entitlement to service connection for
the cause of the veteran's death.  At the time of the
September 2004 Board remand, however, those issues were not
currently developed or certified for appellate review. 
Accordingly, they were referred to the RO for appropriate
action.  In its remand, the Board emphasized that it would
not exercise jurisdiction over any issue without an appeal
being perfected in accordance with the provisions of
38 U.S.C.A. § 7105 (2006). 
Subsequently, a January 2006 rating decision denied
entitlement to accrued benefits based on claims of
entitlement to service connection for throat cancer,
emphysema, cataracts, and a heart disorder.  An appeal was
timely perfected as to the issues of emphysema and throat
cancer; thus, Board adjudication will now proceed.  As to the
issues of cataracts and a heart disorder, the appellant did
not perfect an appeal to the Board; hence, jurisdiction is
lacking and therefore may not be exercised.  Id.
A March 2006 rating decision denied entitlement to service
connection for the cause of the veteran's death. 
In a March 2006 supplemental statement of the case the RO
readjudicated the issue of entitlement to compensation (DIC)
pursuant to the provisions of 38 U.S.C.A. § 1151.  The Board
finds that development of the appellant's claim of
entitlement to DIC under 38 U.S.C.A. § 1151 is complete and
that adjudication of this matter can now proceed. 
For the reason outlined below, the appeal is REMANDED, in
part, to the RO via the Appeals Management Center (AMC), in
Washington, DC.  Consistent with the instructions below, VA
will notify you of the further action that is required on
your part. 
FINDINGS OF FACT
1.  At the time of the veteran's death, the preponderance of
the competent evidence of record was against finding that
emphysema was demonstrated in service, or that it was
otherwise related to service. 
2.  At the time of the veteran's death, the preponderance of
the competent evidence of record was against finding that
throat cancer was demonstrated in service, that it was
compensably disabling within a year postservice, or that it
was otherwise related to service. 
3.  The veteran's death was not caused by VA medical
treatment. 
CONCLUSIONS OF LAW
1.  The criteria for entitlement to service connection for
emphysema for the purpose of accrued benefits have not been
met.  38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107, 5121
(West 2002 and Supp.  2006); 38 C.F.R. §§ 3.159, 3.303, 3.1000
(2006). 
2.  The criteria for entitlement to service connection for
throat cancer for the purpose of accrued benefits have not
been met.  38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107,
5121; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.1000. 
3.  The criteria for entitlement to DIC under 38 U.S.C.A. §
1151 have not been met.  38 U.S.C.A. §§ 1151, 5102, 5103,
5103A, 5107 (West 2002 and Supp.  2006); 38 C.F.R. §§ 3.102,
3.159, 3.326, 3.358 (2006). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA)
Under 38 U.S.C.A. § 5102, VA first has a duty to provide an
appropriate claim form, instructions for completing it, and
notice of information necessary to complete the claim if it
is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a
duty to notify the claimant of the information and evidence
needed to substantiate and complete a claim, i.e., evidence
of veteran status; evidence of a nexus between service and
death, and between active military duty and the disorders for
which accrued benefit claims are made; and the effective date
of any benefits.  The appellant must also be notified to
submit all evidence in her possession, what specific evidence
she is to provide, and what evidence VA will attempt to
obtain. 
VA thirdly has a duty to assist claimants in obtaining
evidence needed to substantiate a claim.  This includes
obtaining all relevant evidence adequately identified in the
record, and, in some cases, securing expert opinions.  38
U.S.C.A. § 5103A.
The Board acknowledges that complete notice did not occur
prior to the rating decisions on appeal here being
adjudicated.  Outweighing this deficiency, however, is the
fact that the appellant was provided appropriate notice,
including the applicable regulations, in May 2001, January
and June 2002, November 2004, and April and October 2005
correspondence, as well as a December 2002 supplemental
statement of the case (SSOC).  The claims were readjudicated
in the March 2006 SSOC (the DIC claim) and the August 2006
SOC (the accrued benefit claims). 
To the extent that there was any deficiency in the timing of
the notice to the appellant, the Court has held that an SSOC
that complies with applicable due process and notification
requirements constitutes readjudication.  Mayfield v.
Nicholson, 20 Vet.  App.  537, 541-42 (2006); see also Prickett
v. Nicholson, 20 Vet.  App.  370 (2006) (holding that a
Statement of the Case that complies with all applicable due
process and notification requirements constitutes a
readjudication decision).  Significantly, Mayfield also holds
that VCAA notification does not require an analysis of the
evidence already contained in the record and any inadequacies
of such evidence, as that would constitute a preadjudication
inconsistent with applicable law.  Id. at 541. 
For the aforementioned reasons, therefore, no additional VA
development is required to satisfy the statutory duty to
assist the appellant and provide her appropriate notice.  38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  See also Soyini v.
Derwinski, 1 Vet.  App.  540, 546 (1991) (adhering strictly to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the appellant); Sabonis
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
appellant are to be avoided). 
Further, there is no issue as to providing an appropriate
application form or completeness of the application.  Written
notice provided in May 2001, January and June 2002, November
2004, and April and October 2005 correspondence, as well as a
December 2002 SSOC, fulfills the provisions of 38 U.S.C.A. §
5103(a), save for a failure to provide notice of the type of
evidence necessary to establish effective dates for the
benefits sought on appeal.  The failure to provide notice of
the type of evidence necessary to establish effective dates
for the benefits sought on appeal is harmless because the
preponderance of the evidence is against the appellant's
claims, and any questions as to the appropriate effective
dates to be assigned are moot.  Simply put, there is no
evidence of any VA error in notifying the appellant that
reasonably affects the fairness of this adjudication.  ATD
Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.  Cir.  1998). 
Finally, VA has secured all available pertinent evidence and
conducted all appropriate development.  Pertinent post-
service medical records have been obtained and associated
with the record, and there is no pertinent evidence which is
not currently part of the claims file. 
The service medical records, however, are not available, and
attempts to reconstruct them have been unsuccessful.  One
sick call record has been secured, but it does not reveal any
pertinent evidence. 
Where, as here, the service medical records are not available
the Board's obligation to explain its findings and
conclusions and to consider carefully the benefit-of-the-
doubt is heightened.  O'Hare v. Derwinski, 1 Vet.  App.  365,
367 (1991).  The cases, however, do not establish a
heightened "benefit of the doubt," but rather only a
heightened duty of the Board to consider the applicability of
the benefit of the doubt, to assist the claimant in
developing the claim, and to explain its decision when the
veteran's medical records are not available.  The case law
does not lower the legal standard for proving a claim but
rather increases the Board's obligation to evaluate and
discuss in its decision all of the evidence that may be
favorable to the appellant.  Russo v. Brown, 9 Vet.  App.  46,
51 (1996). 
Hence, VA has fulfilled its duty to assist the appellant in
the prosecution of her claims.  Therefore, the Board finds
that VA has fulfilled its VCAA obligations to the appellant. 
Accrued Benefits Claims for Emphysema and Throat Cancer
The appellant asserts that she is entitled to accrued
benefits because the veteran had appeals pending at the time
of his death for entitlement to service connection for
emphysema and throat cancer. 
The law governing claims for accrued benefits provides that,
upon the death of a veteran, his lawful surviving spouse may
be paid periodic monetary benefits to which he was entitled
at the time of his death, and which were due and unpaid for a
period not to exceed two years, based on existing rating
decisions or other evidence that was on file when he died. 
38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. 
Although the appellant's claims for accrued benefits are
separate from the claims the veteran filed prior to his
death, accrued benefit claims are "derivative of" those
claims.  By statute, the appellant takes the veteran's claims
as they stood on the date of his death.  Zevalkink v. Brown,
102 F.3d 1236, 1242 (Fed.  Cir.  1996). 
For a claimant to prevail in her accrued benefits claim, the
record must show the following: (1) the appellant has
standing to file a claim for accrued benefits (see 38
U.S.C.A. § 5121; 38 C.F.R. § 3.1000); (2) the veteran had a
claim pending at the time of his death (see 38 U.S.C.A. §§
5101(a), 5121(a) (West Supp.  2006); Jones v. West, 136 F.3d
1299 (Fed.  Cir.  1998)); (3) the veteran would have prevailed
on his claim if he had not died (Id.); and (4) the claim for
accrued benefits was filed within one year of the veteran's
death (see 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c)). 
An accrued benefits claim is, under the law, derivative of,
and separate from, the veteran's claims.  Jones, 136 F.3d at
1300 (holding that a survivor 's accrued benefits claim
derives from the fact that the veteran had a claim pending at
date of death).  Hence, in connection with its consideration
of this appeal, the Board will adjudicate the claims of
entitlement to service connection for emphysema and throat
cancer for accrued benefit purposes on the basis of the
evidence that was actually or constructively of record at the
time of the veteran's death in November 1997. 
From the outset, it is again noted that the veteran's service
medical records are not on file.  Those may have been
destroyed in a fire at the National Personnel Records Center
in 1973.  In cases where service medical records are
unavailable through no fault of the claimant, there is a
heightened obligation to explain findings and conclusions and
to carefully consider the benefit-of-the-doubt rule.  O'Hare. 
Post-service, the earliest evidence of record of emphysema is
a July 1993 VA treatment record noting that emphysematous
changes were found on a computerized tomography (CT) of the
thorax.  A VA hospital discharge summary dated in May 1993
noted that the veteran had been diagnosed with chronic
obstructive pulmonary disorder (COPD) for ten years at that
time (i.e., since 1983).  The May 1993 VA hospital record
also reported that the veteran had smoked two packs of
cigarettes per day for 45 years before quitting 15 years
earlier.  As to throat cancer, the earliest evidence of
record is a January 1993 VA endoscopy report that diagnosed
the veteran's papillary adenocarcinoma. 
In addition to the foregoing records, the file at the time of
the veteran's death included treatment records pertaining to
care he received prior to his demise in November 1997 These
records do not include a nexus opinion addressing the
etiology of either the veteran's emphysema or throat cancer. 
The appellant has raised a theory of the case the assertion
that both diseases were due to in-service use of tobacco
(i.e., cigarette smoking).  The absence of service medical
records notwithstanding, at the time of the veteran's death
there was no competent medical evidence to suggest such a
link, or, indeed, any relationship between the claimed
conditions and service. 
The standards for granting accrued benefits are stated above. 
The standard for granting service connection for emphysema or
throat cancer provides that service connection may be granted
if the disorder was incurred or aggravated while on active
duty.  38 U.S.C.A. § 1110. 
That an injury 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). 
Service connection for throat cancer may also be granted if
it was compensably disabling within one year of the veteran's
separation from active duty.  38 C.F.R. §§ 3.307, 3.309. 
Based on the evidence of record at the time of the veteran's
death, the Board finds that service connection for emphysema
and throat cancer on an accrued basis is not warranted.  In
this regard, there was no evidence of record at the time of
his death that the veteran had emphysema or throat cancer in
service, or that he compensably disabling throat cancer
within a year of separation from active duty.  More
importantly, there was no positive nexus evidence and the
fact that well over 45 years separates the veteran's service
discharge in 1945 from the earliest pertinent medical
evidence of record documenting the veteran's claimed
disorders. 
Accordingly, the Board finds that the preponderance of the
competent medical evidence of record at the time of the
veteran's death was against the claims, and as such the
claims of entitlement to accrued benefits for emphysema and
throat cancer must be denied. 
Claim for DIC Benefits Under 38 U.S.C.A. § 1151
The appellant contends that as a result of a blood
transfusion received at a VA medical facility, the veteran
developed Creutzfeldt - Jakob disease (CJD), which ultimately
led to his death.  In support of her contention, she has
submitted an October 1995 letter from the Medical Director of
the Syracuse, New York, VA Medical Center (VAMC), which
indicates that a blood transfusion that was administered to
the veteran at the VAMC may have presented a "small,
theoretical risk" of transmitting CJD.  In addition to this,
the appellant also submitted an August 1998 handwritten
medical note from a private physician, Niles F. Greenhouse,
M.D., which stated that the veteran died in November 1997,
and that based on the medical records, he suffered from CJD
prior to his demise. 
The veteran's death certificate indicates that in November
1997, he died as a result of right pneumonia, which was due
to or a consequence of COPD, which was due to or a
consequence of congestive heart failure.  There is no
indication in the medical evidence of record, other than the
notation from Dr. Greenhouse, that the veteran ever
contracted CJD. 
VA made numerous attempts to contact Dr. Greenhouse to obtain
any treatment records pertaining to the veteran, and to
request that Dr. Greenhouse provide a basis for the August
1998 medical opinion.  VA, however, was not successful in its
attempts to contact Dr. Greenhouse.  The appellant was
informed of this situation, and in a July 2002 statement, she
indicated, through her representative, that she had no way of
locating Dr. Greenhouse, and that she had no other medical
evidence to submit in support of her claim. 
A November 2002 VA medical opinion noted the findings shown
on the veteran's medical records, to include his medical
history, his cause of death, and the terminal hospital
report, and determined that there was no evidence that the
veteran suffered from CJD.  It was specifically noted that
"review of [the veteran's] chart and also the status that he
[the veteran] was in immediately prior to his death [did] not
show any findings or symptoms consistent with Creutzfeldt -
Jakob disease . . ."  It was also noted that the veteran's
immediate cause of death was related to his COPD/marked
pneumonia and pulmonary failure.  The medical opinion
indicated that the examiner did not see any evidence that
there was any misdiagnosis or mistreatment made on the part
of the VA.  In addition, the examiner did not see any
evidence that the veteran ever had clinically active CJD. 
Under the law in effect at the time of the filing of the
appellant's claim, entitlement to benefits under 38 U.S.C.A.
§ 1151 may be established for the death of a veteran when it
is shown that death was caused by hospital care, medical or
surgical treatment, or examination furnished the veteran in a
VA facility, and the proximate cause of death was: (A)
carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on the part of VA in
furnishing the hospital care, medical or surgical treatment,
or examination; or (B) an event not reasonably foreseeable. 
Based on the above-mentioned VA medical opinion, the Board
must conclude that service connection for the cause of the
veteran's death under the provisions of 38 U.S.C.A. § 1151 is
not warranted.  The Board notes Dr. Greenhouse's August 1998
statement; however, without any explanation for that finding
or any other evidence showing that the veteran had CJD, the
Board finds the 2002 VA medical opinion, which was based on a
review of all of the evidence, to be more probative. 
Accordingly, the claim is denied. 
Conclusion
In reaching these decisions to deny the appellant's claims,
the Board considered the doctrine of reasonable doubt;
however, as the preponderance of the evidence is against the
appellant's claims, the doctrine is not for application. 
Gilbert v. Derwinski, 1 Vet.  App.  49 (1990). 
ORDER
Entitlement to service connection for emphysema for accrued
benefit purposes is denied. 
Entitlement to service connection for throat cancer for
accrued benefit purposes is denied. 
Entitlement to DIC benefits under 38 U.S.C.A. § 1151 for the
cause of the veteran's death is denied. 
REMAND
The Board's prior September 2004 remand, directed the RO to
adjudicate de novo the issue of entitlement to service
connection for the cause of the veteran's death on a direct
basis.  This the RO did in March 2006.  The record,
unfortunately, does not show that the appellant received
specific notice of this rating decision, to include a
statement of her appellate rights.  The claims file instead
shows that, subsequent to the March 2006 rating decision on
the issue of cause of death, she mistakenly received notice
of the right to appeal within a year as to the DIC claim,
which had recently, and properly, been readjudicated by SSOC. 
In sum, the RO has failed to issue the appellant due notice
as to the March 2006 rating decision which denied entitlement
to service connection for the cause of the veteran's death. 
Hence, the one year period during which she may file a Notice
of Disagreement to that rating decision has yet to begin. 
38 C.F.R. § 20.302 (2006).  On remand, the RO must issue a
notice letter that apprises her of her appellate rights. 
The purpose of this remand is to comply with governing
adjudicative procedures. 
Accordingly, the case is REMANDED for the following action:
The RO is to issue the appellant proper
notice of the March 2006 rating decision
denying entitlement to service connection
for the cause of the veteran's death on a
direct basis.  The notice letter must
include a statement of appellate rights
that apprises the appellant that she has
one year from the date of the letter to
appeal the March 2006 rating decision,
and it must enclose a copy of VA Form
4107.  Thereafter, if and only if the
appellant timely perfects an appeal
should this issue be returned to the
Board for appellate consideration. 
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO. 
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 or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner.  See 38
U.S.C.A. §§ 5109B, 7112 (West Supp.  2006). 
______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 
38 C.F.R. § 20.1100(b)(2006). 
Department of Veterans Affairs