Citation Nr: 0300935 Decision Date: 01/16/03 Archive Date: 01/28/03 DOCKET NO. 02-04 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Oklahoma Department on Veterans Affairs ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Associate Counsel INTRODUCTION The veteran had active service from October 1942 to May 1946 and from November 1947 to December 1955. He died in August 1998. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from December 1999 and September 2001 rating decisions of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida and in Muskogee, Oklahoma (RO) which denied the benefit sought on appeal. The appellant's claims file was transferred to the Muskogee, Oklahoma RO in April 2000, as per her request. FINDINGS OF FACT 1. The appellant was notified of the evidence needed to substantiate her claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The veteran's death certificate shows that he died in December 1998 as a consequence of malnutrition due to laryngeal cancer. 3. At the time of the veteran's death, service connection was in effect for a fracture of the right humerus, a healed laceration of the right thigh, and hepatitis. A 40 percent disability evaluation was assigned for his fracture of the right humerus. The other disorders were assigned noncompensable disability ratings. 4. The veteran's laryngeal cancer was not manifested during service or for many years thereafter, and is not shown to be causally or etiologically related to the veteran's service. 5. The medical evidence demonstrates that the veteran's laryngeal cancer was due to the use of tobacco. CONCLUSION OF LAW The veteran's death was not caused by or substantially or materially contributed to by a disability of service origin. 38 U.S.C.A. §§ 1101, 1103, 1110, 1131, 1310, 5103, 5103A, 5107(b) (West 1991 & Supp. 2001); 66 Fed. Reg. 45,630-32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.159); 38 C.F.R. §§ 3.301, 3.302, 3.303, 3.304, 3.307, 3.309, 3.312 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal arises out of the appellant's claim that the veteran's death from laryngeal cancer was related to his active service. The appellant maintains that the veteran started smoking while in service, that he continued smoking following service, and that this smoking caused the laryngeal cancer that caused his death. As a preliminary matter, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) became law. The VCAA applies to all claims for VA benefits and provides, among other things, that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim for benefits under laws administered by the VA. The VCAA also requires the VA to assist a claimant in obtaining that evidence. See 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001); 66 Fed. Reg. 45, 630 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159). First, the VA has a duty under the VCAA to notify the appellant and her representative of any information and evidence needed to substantiate and complete her claim. The rating decisions and the statement of the case issued in connection with the appellant's appeal, as well as additional correspondence to the appellant, have notified her of the evidence considered, the pertinent laws and regulations, and the reason that her claim was denied. The RO indicated that it would review the information of record and determine what additional information is needed to process the appellant's claim. The RO also informed the appellant of what the evidence must show in order to warrant entitlement to service connection for the cause of the veteran's death and provided a detailed explanation of why such service connection was not granted. In addition, the statement of the case included the criteria for granting service connection for the cause of the veteran's death, as well as other regulations pertaining to her claim. Similarly, letters to the veteran, from the RO, notified the veteran as to what kind of information was needed from her, and what she could do to help her claim. See Quartuccio v. Principi, 16 Vet. App. 183,187 (2002) (requiring VA to notify the veteran of what evidence he was required to provide and what evidence the VA would attempt to obtain). Under the circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Second, the VA has a duty to assist the appellant in obtaining evidence necessary to substantiate her claim. In this regard, the veteran's service medical records, private medical records, and the veteran's death certificate are of record. The appellant and her representative have not made the Board aware of any additional evidence that should be obtained prior to appellate review. Likewise, the Board is not aware of any additional evidence that needs to be obtained in this appeal, and the Board is satisfied that the requirements under the VCAA have been met. As such, the Board finds that the duty to assist was satisfied and the case is ready for appellate review. See Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). See also VAOPGCPREC 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747) (1992). According to VA law and regulations, service connection may be granted for disabilities resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303 (2001). 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. See 38 C.F.R. § 3.303(d). Further, a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. See 38 C.F.R. § 3.310. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. See 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, or that it aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1). Medical evidence is required to establish a causal connection between service or a disability of service origin and the veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Nevertheless, for claims filed after June 10, 1998, a veteran's death is not considered to have resulted from injury incurred or disease contracted during active service on the basis that it resulted from the veteran's use of tobacco products in service. See 38 U.S.C.A. § 1103. The veteran had active military service from October 1942 to May 1946 and from November 1947 to December 1955. According to the veteran's death certificate, he died in August 1998 as a consequence of malnutrition due to laryngeal cancer. The interval between onset and death was noted as being one month with regard to the malnutrition, and two years with regard to the laryngeal cancer. During his lifetime, the veteran had established service connection for a fracture of the right humerus, a healed laceration of the right thigh, and hepatitis. A 40 percent disability evaluation was assigned for his fracture of the right humerus. Service connection was not in effect for any other disabilities. Service medical records show no evidence of laryngeal cancer. An October 1942 physical examination showed a normal thyroid, trachea, and larynx, as well as a normal mouth, nose, and throat. His May 1946 Report of Physical Examination indicates that clinical evaluation of the veteran's tongue, palate, pharynx, larynx, and tonsils was normal, as was evaluation of the veteran's neck and respiratory system. A November 1947 physical examination showed normal lungs, normal laboratory findings, and a that there were no ear, nose, or throat abnormalities. A July 1950 Report of Medical Examination indicates that the veteran had a normal clinical evaluation of his head, face, neck, nose, sinuses, mouth, and throat. The February 1952 Report of Medical Examination indicates that the veteran's tonsils were enucleated, but that otherwise evaluation of his mouth and throat was normal. The December 1955 Report of Medical Examination also indicates a normal clinical evaluation of the veteran's mouth and throat. A March 1999 letter from W. M. Mendenhall, M.D., states that the veteran was treated for "an advanced carcinoma of the larynx, stage T3N0, with radiation therapy." The veteran also underwent a salvage laryngectomy. Dr. Mendenhall opined that the veteran's "cigarette smoking and addiction to nicotine were contributing factors to the development of his cancer." A letter from the veteran's son, dated March 1999, indicates that the veteran's attempts to quit smoking failed because the veteran could not stop smoking, despite health problems. An April 1999 letter from A. L. Glowasky, M.D. states that cigarette smoking is a factor "most strongly implicated in causing laryngeal cancer" and that "[the veteran's cigarette smoking] had a profound effect in [the veteran's] laryngeal cancer." An April 1999 statement from another of the veteran's sons indicates that he felt that the veteran was addicted to cigarettes because the veteran would wake up in the middle of the night to smoke and get irritable when he was without cigarettes. An April 1999 statement from the veteran's sister indicates that the veteran did not smoke until he went to boot camp for the Navy, and that thereafter, he smoked cigarettes daily. She also opined that the veteran's cigarettes were "what killed him . . . ." An April 1999 statement from the appellant contends that the veteran became addicted to nicotine while in the military, and that the veteran's cancer was due to his nicotine addiction. A letter from D. M. Duncanson, M.D., dated May 1999, states that the veteran was a patient of his at a skilled nursing facility from August 1997 to August 1998. Dr. Duncanson also states that the veteran's "death, and major health problems leading up to his death were due to a total laryngectomy and chronic obstructive lung disease." He noted that the veteran's laryngectomy was treatment for the veteran's squamous cell carcinoma. He also noted that the veteran's chronic obstructive lung disease and his laryngeal squamous cell carcinoma were "directly associated with the [veteran's] long term nicotine addiction. . . ." In addition, the appellant, in statements to the RO and the Board, contends that the veteran was addicted to nicotine, and that his cancer and 1996 stroke were due to his nicotine addiction. She also contended that the veteran's service-connected hepatitis contributed to his death. Likewise, the appellant contended that veteran's attempts to seek treatment at the VA Medical Centers in Florida were an "intent to file for VA benefits" prior to June 1998, and should be considered an informal claim for benefits. The Board acknowledges the appellant's contention regarding the veteran's smoking during service, and its relationship to the disability that led to his death. However, Congress has prohibited the grant of service connection for a disability on the basis that such disability resulted from a disease attributable to the use of tobacco products during the veteran's active service for claims filed after June 10, 1998. See 38 U.S.C.A. § 1103. Therefore, as a matter of law, any claims received by VA after June 10, 1998, are subject to this restriction. In the appellant's case, the record clearly shows that the appellant's claim, asserting that the veteran's laryngeal cancer was due to smoking, was not filed until December 1998. The evidence of record clearly shows that the veteran's malnutrition was caused by the veteran's laryngeal cancer, which was caused by the veteran's tobacco use. The Board notes that service medical records are entirely negative for evidence of laryngeal cancer or other evidence of problems related to the veteran's larynx. In addition, the veteran's laryngeal cancer was first manifest many years following service. In this regard, the death certificate clearly states that the veteran's laryngeal cancer was first diagnosed two years prior to the veteran's death, and the veteran's treating medical providers conclude that the veteran's laryngeal cancer was a consequence of his cigarette smoking. Likewise, there is no medical evidence that even suggests that the veteran's laryngeal cancer was in any way related to the veteran's service. See 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. Rather, as discussed earlier, the medical evidence reflects that the veteran's laryngeal cancer was due to the veteran's nicotine addiction and cigarette smoking. See 38 U.S.C.A. § 5103A(d) (VA does not have an affirmative duty to obtain an examination of a claimant or a medical opinion from Department healthcare facilities if the evidence of record contains adequate evidence to decide a claim). The provisions of 38 U.S.C.A. § 1103 are dispositive of the theory of entitlement in this case and require that the claim be denied. In a case where the law, and not the evidence, is dispositive, the claim should be denied or the appeal to the Board should be terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As the appellant's claim was received on December 16, 1998, after the effective date of 38 U.S.C.A. § 1103, the appellant's claim for service connection of the veteran's cause of death is prohibited as a matter of law. Lastly, the Board also acknowledges the appellant's argument that the veteran's attempts to receive treatment at the VA Medical Centers were informal claims which preceded the effective date of 38 U.S.C.A. § 1103, and that her claim should be allowed. However, there is no evidence that a claim, informal or formal, was ever submitted. Under these facts and circumstances, the Board finds that no further action was required of the RO. See 38 U.S.C.A. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.152 (a written communication indicating the benefit sought must be filed in order for benefits to be paid under the laws administered by the VA). See also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). Significantly, service connection had not been established for any disease of the larynx during the veteran's lifetime, and even if the veteran had filed a claim for service connection for laryngeal cancer, the claim would not have survived his death. As a matter of law, veterans' claims do not survive their deaths. See Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Furthermore, the appellant's current claim for service connection for cause of death is separate and distinct from any previous claims that the veteran may have filed. Thus, the appellant's assertion that the present claim was originally filed prior to the veteran's death in August 1998 is without merit. In conclusion, the preponderance of the evidence is against the appellant's claim that the veteran's death was causally related to his active service. As there is not an approximate balance of positive and negative evidence regarding the merits of the appellant's claim that would give rise to a reasonable doubt in favor of the appellant, the provisions of 38 U.S.C.A. § 5107(b), as amended, are not applicable, and the appeal is denied. ORDER Service connection for the cause of the veteran's death is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.