Citation Nr: 0713715 Decision Date: 05/09/07 Archive Date: 05/17/07 DOCKET NO. 03-01 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and her daughter ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from August 1965 to August 1968, including service in Vietnam. He died in February 2001. The appellant is the surviving spouse of the deceased veteran. This case comes to the Board of Veterans' Appeals (the Board) on appeal from a May 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The appellant presented personal testimony before the undersigned Veterans Law Judge at a hearing which was conducted in Washington, DC in January 2007. The transcript of the hearing is associated with the veteran's claims folder. At that time, the appellant submitted additional evidence directly to the Board along with a written and oral waiver of consideration of that evidence by the RO. See 38 C.F.R. § 20.1304 (2006); see also the hearing transcript, page 5. FINDINGS OF FACT 1. The veteran died in February 2001 at the age of 57. The death certificate indicated that the cause of death was cardiopulmonary arrest due to hepatocellular carcinoma (HCC). No autopsy was performed. 2. The veteran was exposed to Aflatoxin during his service in Vietnam. 3. A November 2006 medical opinion from Dr. A.M.G., who reviewed the evidence in the claims file, provides sufficient medical nexus evidence to establish that the veteran's exposure to Aflatoxin in service caused the veteran's fatal HCC and was thus a contributory cause of his death. CONCLUSION OF LAW Service connection for the cause of the veteran's death is warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that the veteran's death was a result of his exposure to Aflatoxin in service and subsequent development of HCC which caused his fatal respiratory failure. In the interest of clarity, the Board will address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. VCAA notice letters were sent to the appellant regarding her cause of death claim in October 2002 and February 2004. These letters appear to be adequate. The Board need not, however, discuss in detail the sufficiency of either the VCAA notice letters or VA's development of the claim in light of the fact that the Board is granting the claim. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal. Cf. 38 C.F.R. § 20.1102 (2006). The Board also notes the appellant has not been provided notice as to effective date as required by the recent decision of the United States Court of Appeals for Veterans Claims (the Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As is discussed in detail below, the Board is granting the appellant's claim. It is not the Board's responsibility to assign an effective date in the first instance. The Board is confident that the appellant will be afforded appropriate notice under Dingess. Accordingly, the Board will proceed to a decision on the merits as to the issue on appeal. Relevant law and regulations Service connection - in general Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2006). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Cause of death Benefits may be awarded to a veteran's surviving spouse for death resulting from a service-connected disability. 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. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2006). The service-connected disability will be considered as the principal (primary) cause of death when such 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) (2006). Standard of review In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2006). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The appellant seeks service connection for the cause of the veteran's death. She contends that the veteran's HCC [and associated fatal respiratory failure] is a result of Aflatoxin exposure in service, and therefore the veteran's cause of death should be considered service-connected. In order for service connection for the cause of a veteran's death to be granted, three elements must be present: (1) evidence of death; (2) evidence of in-service incurrence of disease or injury and/or service-connected disability; and (3) medical nexus evidence linking (1) and (2). Cf. Hickson, supra. In this case, element (1) has obviously been met. With respect to Hickson element (2), the veteran was not service- connected for any disability at the time of his death. Moreover, the veteran's service medical records, including his August 1968 separation examination, are completely negative for an in-service incurrence of HCC, or any other disease for that matter. Instead, the appellant argues that the veteran sustained an "injury" in service by being exposed to Aflatoxin, a fungus found in Southeast Asia, which ultimately led to the development of his fatal HCC. She has submitted medical treatise evidence indicating Aflatoxin exposure causes HCC. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 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]. This is one such case, especially considering that the appellant has combined her medical treatise evidence with a positive medical nexus opinion. See Mattern v. West 12 Vet.App. 222, 228 (1999). To support her contention of in-service Aflatoxin exposure, the appellant has offered photographs of the veteran in Vietnam, and has testified as to the veteran's experiences in leper colonies and his exposure to Vietnamese animals and food. See the January 2007 hearing transcript, page 13. The veteran's representative has asked for consideration of the above-cited case Mattern v. West, which found such types of evidence credible for purposes of establishing exposure to Aflatoxin in a similar cause of death claim involving HCC. Based on the precedent of Mattern, the medical treatise evidence with a supportive medical nexus opinion and the fact that the Board has no reason to doubt the veracity of the appellant's testimony concerning the circumstances of the veteran's Vietnam service, the Board finds the evidence indicates that the veteran was exposed to Aflatoxin in service. Hickson element (2) has accordingly been satisfied. With respect to element (3), medical nexus, for reasons expressed immediately below the Board finds that the medical evidence in this case shows that there existed a contributory relationship between exposure to Aflatoxin and his death due to HCC. Of record is the November 2006 opinion of A.M.G., M.D., M.P.H. Dr. A.M.G. stated: "There was no evidence of hepatitis or other possible etiologies for HCC in the medical record. However, there is lay evidence suggestive of exposure to aflatoxins that occurred during his tour in the Republic of Vietnam. Therefore, it is as least as likely as not that the veteran's diagnosis of hepatocellular carcinoma is related to aflatoxin exposure in service." This opinion is arguably supported by the veteran's post-service medical records, which do not indicate the presence of hepatitis or cirrhosis. There is no medical evidence to the contrary. It does not appear that any health care provider has suggested any other cause for the veteran's fatal HCC. The Board notes in passing that a January 2005 VA medical opinion specifically ruled out Agent Orange exposure as a factor. Thus, the competent medical evidence of record indicates the veteran's in-service aflatoxin exposure had a contributory effect on the cause of the veteran's death. In other words, the medical evidence indicates that in-service aflatoxin exposure led to the veteran's fatal HCC. See 38 C.F.R. § 3.312(c)(4) (2006). Accordingly, Hickson element (3), and thus all elements, has been met. In summary, for reasons and bases expressed above, the Board concludes that service connection for the cause of the veteran's death is warranted. The benefit sought on appeal is granted. ORDER Service connection for the cause of the veteran's death is granted. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs