Citation Nr: 0005407 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-10 035 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for colon cancer due to herbicide exposure, for purposes of accrued benefits. 2. Entitlement to service connection for the cause of the veteran's death. 3. Eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from May 1968 to May 1974. The veteran died on March [redacted], 1998. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in April 1998 that denied the benefits sought on appeal. The appellant timely appealed the determinations to the Board. In connection with her claim, the appellant had a hearing before an RO hearing officer in September 1998. Although the appellant was also scheduled to have a Board hearing in August 1999, she canceled that hearing and did not request that it be rescheduled. The Board's decision on the claim for service connection for colon cancer is set forth below. However, the issues of entitlement to service connection for the cause of the veteran's death and eligibility for Chapter 35 benefits will be addressed in the REMAND following the decision. FINDINGS OF FACT 1. The veteran had active service in the Republic of Vietnam during the Vietnam era; however, no competent evidence has been submitted to establish that he was exposed to herbicide agents during service. 2. Prior to his death, the veteran was not diagnosed with any disability recognized by VA as etiologically related to exposure to herbicide agents used in Vietnam. 3. No competent medical evidence has been submitted to show that the veteran developed colon cancer as a result of exposure to Agent Orange or that such disease was otherwise incurred in or aggravated by service. CONCLUSION OF LAW A well-grounded claim of service connection for colon cancer due to exposure to Agent Orange, for purposes of accrued benefits, has not been presented. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The death certificate reveals that the cause of the veteran's death was exsanguination from a hepatic laceration as a result of a motor vehicle accident. During the veteran's lifetime and at the time of his death, service connection was not in effect for any disorder. For the purposes of a claim for accrued benefits, the Board notes that upon the death of a veteran, periodic monetary benefits to which he was entitled at the time of his death under existing ratings or decisions, or those based on evidence in the file at the date of his death and due and unpaid for a period not to exceed two years, shall, upon the death of the veteran, be paid to the veteran's spouse, the veteran's children or to the veteran's dependent parents. 38 U.S.C.A. § 5121 (a). The threshold question to be answered in the appellant's appeal is whether she has presented evidence of a well- grounded claim of entitlement to service connection for colon cancer due to exposure to herbicides, for purposes of accrued benefits. If not, her application for benefits must fail, and there is no further duty to assist her in the development of her claim. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Although a claim need not be conclusive, it must be accompanied by supporting evidence in order to be considered well grounded; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Generally, a well- grounded claim requires (1) medical evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995). Alternatively, a claim may be well grounded if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period. 38 C.F.R. § 3.303(b) (1999); Savage v. Gober, 10 Vet. App. 488 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495. If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. at 496-497. The evidentiary assertions by the appellant must be accepted as true for purposes of determining whether the claim is well grounded, except where the claim is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19 (1993). When the issue involves a medical question of diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). Statements and testimony from lay witnesses or the appellant in this regard are not sufficient to establish a plausible claim as they are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). According to the veteran's service personnel records, he had active service in the Republic of Vietnam during the Vietnam era. A careful review of the service medical records reveals that the veteran was treated for gastroenteritis in 1974. There is no other evidence of complaints or treatment for that disorder and discharge examination was negative for any disability of the colon or gastrointestinal system. Post-service medical records reflect that the veteran was diagnosed with colon cancer in December 1997 following a CT scan and liver biopsy. Thereafter, he was followed by Phillip E. Baldwin, M.D., an oncologist, for treatment of colon cancer prior to his death in an automobile accident in March 1998. By letter dated in July 1998, Dr. Baldwin indicated that the veteran had metastatic adenocarcinoma of the colon and subsequently died from an unrelated cause. During the course of his treatment the issue of etiology of his cancer had been raised by the veteran and his family. Dr. Baldwin indicated that a number of etiologic agents are believed to contribute to the development of colon carcinoma; a number of industrial/chemical toxic exposures are believed the enhance the risk of development of colorectal carcinoma. He further commented as follows: "Although I have no specific information as to the exposures of [the veteran] to such agents, it is possible that such exposure could have played a role in his developing his cancer at such an early age. If such a link is suspected, additional investigation would be required." Dr. Baldwin included a copy of an article concerning potential risk factors associated with industrial exposure. During her September 1998 RO hearing, the appellant testified that from the time the veteran got out of the service, he complained of stomach pains. He went to several doctors and had a sore stomach. With respect to the medical statement from Dr. Baldwin, the appellant indicated that Dr. Baldwin could not say for sure that the veteran's colon cancer was related to some chemical exposure in service, but that he believed the veteran was exposed to a chemical that caused his cancer. The requirement that there be some nexus shown between current disability and military service may be satisfied through the application of certain legal presumptions. Pursuant to 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309(e), in the case of a Vietnam-era veteran, no direct evidence as to the in-service incurrence and medical nexus requirements is necessary when the provisions of those sections are satisfied. Brock v. Brown, 10 Vet. App. 155 (1997). However, in view of the plain language of 38 U.S.C.A. § 1116 (West 1991 & Supp. 1999) and 38 C.F.R. § 3.307(a)(6)(iii) (1999), neither the statutory nor the regulatory presumption will satisfy the incurrence element of a well-grounded claim where the veteran has not developed a condition enumerated in either 38 U.S.C.A. § 1116 or 38 C.F.R. § 3.309(e). McCartt v. West, 12 Vet. App. 164 (1999). In other words, both service in the Republic of Vietnam during the designated time period and the establishment of one of the listed diseases is required to establish entitlement to the in-service presumption of exposure to an herbicide agent. If a veteran was exposed to a herbicide agent during active military service, the following diseases shall be service- connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers and soft- tissue sarcomas. 38 C.F.R. § 3.309(e). The Secretary of the Department 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 Diseases Not Associated with Exposure to Certain Herbicide Agents, 59 Fed. Reg. 341 (1994). The appellant (and prior to his death, the veteran) has contended that the veteran developed colon cancer as a result of exposure to Agent Orange. However, colon cancer is not among the conditions that may be presumptively service connected under the applicable provisions. There is no evidence of record that the veteran developed a condition that would be presumptively service connected under 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307(a) and 3.309(e). Thus, the Board concludes that the appellant has not submitted well-grounded claim for presumptive service connection for colon cancer, for purposes of accrued benefits. See Brock, McCartt, supra. As the claimed condition is not among those listed, the veteran must establish that he was exposed to Agent Orange in order to be entitled to the presumption of service incurrence. There is no affirmative evidence of record that the veteran was exposed to Agent Orange during service. Notwithstanding the foregoing, the United States Court of Appeals for the 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 a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, where the issue involves such a question of medical causation, competent evidence which indicates that the claim is plausible is required to support a well-grounded claim. See Grottveit, supra. While the medical evidence of record includes a diagnosis of colon cancer prior to the veteran's death, the evidence does not include any competent evidence to support the appellant's assertions that the colon cancer was related to the veteran's military service, to include the claimed exposure to Agent Orange. The general assertions contained in the July 1998 medical statement from Dr. Baldwin are speculative and cannot be specifically applied to the veteran; indeed, his statements related to colon cancer and chemical exposure were accompanied by commentary that further investigation was needed. Furthermore, no medical evidence has been submitted to show that, prior to his death, the veteran had colon cancer that was otherwise related to some incident of his military service. After a review of the entire record, the Board finds that there is no medical evidence to establish that the veteran had colon cancer that was due to Agent Orange exposure or other disease or injury that was incurred in or aggravated by service. The statements from the veteran and the appellant in this regard cannot constitute competent evidence. See Espiritu, supra. As indicated hereinabove, the veteran is not shown to suffer from one of the disorders for which presumptive service connection is extended in cases where the veteran has had inservice exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In claims that are not well grounded, the VA does not have a statutory duty to assist a claimant in developing facts pertinent to her claim. Furthermore, the appellant has not put VA on notice that competent evidence exists that supports her assertions that the veteran's colon cancer was related to service. However, the VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete her application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, while the RO has not specifically denied the claim as not well grounded, it has clearly explained the basis for the denial of the claim and indicated the evidence that is lacking; hence, the duty to inform has been met. Finally, the Board has considered the "benefit of the doubt" doctrine; however, as the appellant's claim of service connection for colon cancer due to exposure to Agent Orange, for purposes of accrued benefits, does not meet the threshold of being well grounded, a weighing of the merits of the claims is not warranted and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for colon cancer based due to herbicide exposure, for purposes of accrued benefits, is denied. REMAND The appellant and her representative contend, in essence, that service connection should be granted for the cause of the veteran's death. Following a complete review of the claims folder, the Board finds that further development of this issue is warranted. As noted above, the veteran died in a motor vehicle accident on March [redacted], 1998. Several copies of the death certificate have been associated with the claims folder. The cause of death is listed as exsanguination due to hepatic laceration as a result of a motor vehicle accident. The veteran was transported from the scene of the accident to a Columbia, South Carolina; the death certificate indicates that the veteran was dead on arrival at that facility. An autopsy was performed. The autopsy report has not been obtained for association with the claims folder. Without having the opportunity to review the autopsy report, the Board is unable to fairly consider the appellant's claim of entitlement to service connection for the veteran's death. As such, the case must be remanded for procurement and consideration of this necessary information. Furthermore, because the issue of the eligibility for Chapter 35 benefits hinges on resolution of the cause of death issue, a remand of that issue is also warranted so that the RO can reconsider it after further developing the record and adjudicating the cause of death issue. Accordingly, these matters are hereby REMANDED to the RO for the following action: 1. The RO should obtain a copy of the complete autopsy report from the coroner who completed the death certificate. The autopsy report should be associated with the claims folder. 2. After completion of the above development (and any other development deemed warranted by the record), the RO should again adjudicate the claims for service connection for the cause of the veteran's death and for Chapter 35 benefits in light of all relevant evidence of record and all pertinent legal authority. 3. If any benefits sought remain denied, the RO must furnish to the appellant and her representative an appropriate supplemental statement of the case and afford them the applicable period to respond thereto before the case is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JACQUELINE E. MONROE Member, Board of Veterans' Appeals