Citation Nr: 0601106 Decision Date: 01/13/06 Archive Date: 01/19/06 DOCKET NO. 04-23 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. J. Turnipseed, Associate Counsel INTRODUCTION The veteran had active service from August 1966 to August 1969. The veteran died in November 2002, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for cause of the veteran's death. In August 2005, the appellant testified at a hearing before the undersigned Veterans Law Judge via videoconference. FINDINGS OF FACT 1. According to the official certificate of death, the veteran's death in November 2002 was caused by liver cancer. No other causes of death were indicated. 2. At the time of his death, the veteran had no service- connected disabilities. 3. The veteran was diagnosed with Hodgkin's disease in 1974, for which he received radiation and chemotherapy treatment. 4. The medical evidence of record relates that the radiation and chemotherapy treatment for Hodgkin's disease was likely the cause of his liver cancer. 5. The competent and probative evidence of record is in approximate balance as to whether there is a relationship between the radiation and chemotherapy treatment the veteran received for Hodgkin's disease, which is presumed to have incurred while the veteran was in service, and the cause of the veteran's death, which was liver cancer. CONCLUSION OF LAW Giving the benefit of the doubt to the appellant, the Board concludes that a disability presumed to have been incurred in service caused or contributed substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran's service medical records are silent for any complaints of, manifestations of, or treatment for a liver disorder. A partial private medical record, dated June 1974, indicates the veteran was admitted to the hospital for evaluation of Hodgkin's disease, which had been diagnosed in May 1974. The Board notes that Hodgkin's disease is also known as Hodgkin's lymphoma. Private medical records dated September 2002 to November 2002 indicate the veteran was seen by his primary care physician, F.J.N., MD, complaining of abdominal pain, bloating, nausea, and other gastrointestinal tract symptoms. The veteran was referred to N.T., M.D., for evaluation, who noted the veteran's medical history included a diagnosis of Hodgkin's disease in 1974, with no evidence of recurrence. Dr. NT also noted the veteran had a family history of colon cancer and recommended that a colonoscopy and abdominal CT scan be performed. The abdominal CT scan revealed findings that were "very suggestive of malignancy" and, based upon the colonoscopy findings, Dr. NT stated she believed there was a high likelihood of a recurrence of lymphoma. In September 2002, Dr. NT referred the veteran to D.R.B., M.D., who noted the veteran's medical history included a diagnosis of nodular sclerosing Hodgkin's disease in July 1974. Dr. DRB noted the veteran was treated with mechlorethamine, vincristine (Oncovin), procarbazine, and prednisone (MOPP) chemotherapy for four complete cycles. The veteran indicated that he thought he had abdominal radiation, but Dr. DRB noted there were no marks on his abdomen. After examining the veteran, Dr. DRB stated that his findings were suggestive of a malignancy. Dr. DRB also stated that, since the veteran had radiation therapy 28 years prior, he was in the period of time when there was increased risk for radiation-induced second malignancies, including sarcomas and non-Hodgkin's lymphomas. Dr. DRB also noted that, while it was not clear whether the veteran received radiation to the abdomen, it would be a major consideration if he did. Dr. DNB further stated that the veteran was at risk for other malignancies unrelated to Hodgkin's disease, specifically noting his exposure to Agent Orange in service. Private medical records from Dr. DNB, dated October 2002, indicate he received medical records from UCLA, where the veteran was treated for Hodgkin's disease in 1974. Dr. DNB stated the records show the veteran's treatment consisted of radiation, and reported the amounts of radiation given to the veteran. He also stated that the veteran was at risk for developing a second malignancy in the abdomen, especially non-Hodgkins lymphoma or sarcoma. A laproscopic biopsy was performed on the veteran, which Dr. DNB stated showed hepatocellular cancer, which is cancer of the liver. A liver biopsy was also performed on the left lobe of the liver, which was of an abnormal configuration and size, but otherwise negative. A private medical record, dated October 2002, indicates the veteran was evaluated by S.M., M.D., for possible treatment. Dr. S.M. noted the veteran presented with carcinomatosis from hepatocellular carcinoma, with ascites and malnutrition. Private medical records dated October 2002 to November 2002 indicate the veteran received treatment at the Norris Comprehensive Cancer Center and Hospital. In October 2002, the veteran was admitted to the hospital to begin intraperitoneal chemotherapy. After experiencing complications due to liver cancer, the veteran died in November 2002. In December 2002, the veteran's surviving spouse, the appellant, filed a formal claim for entitlement to dependency indemnity compensation (DIC) for the cause of the veteran's death, claimed as caused by Hodgkin's disease due to Agent Orange exposure, as well as liver condition in the abdomen secondary to radiation treatment for Hodgkin's disease. In October 2003, the RO requested an opinion from a VA physician as to the likelihood of any link between the veteran's Hodgkin's lymphoma and liver cancer. In September 2003, the VA physician examined the claims file and noted the veteran's service in Vietnam. The physician also noted the veteran's medical history, including the 1974 diagnosis of Hodgkin's disease and subsequent treatment, as well as the October 2002 diagnosis of peritoneal carcinomatosis and metastatic hepatocellular carcinoma. After reviewing the veteran's hospital records, the VA physician stated that it appeared the veteran's diagnosis of Hodgkin's disease "in no way" influenced development of his hepatocellular carcinoma, noting that his Hodgkin's disease was treated thoroughly, with no evidence of recurrence. In summary, the physician stated there was no likelihood of a link between the veteran's Hodgkin's lymphoma and development of metastatic liver cancer which caused his death in November 2002. In August 2005, the appellant and her representative appeared before the undersigned Veterans Law Judge at a videoconference hearing. The appellant's representative indicated that they would be submitting a seven-page medical opinion from Dr. DRB, which would establish a nexus between the veteran's cause of death and his non-Hodgkin's lymphoma. In August 2005, the appellant submitted a medical opinion from Dr. DNB, dated the same month, along with a written statement waiving initial consideration of the evidence by the RO. In the August 2005 medical opinion, Dr. DNB indicated he was the veteran's attending physician and oncologist from September to October 2002. After reviewing medical records from 1974 to 2002 which were available to him, Dr. DNB stated it was his opinion that the veteran's hepatocellular cancer was incurred as a result of the treatment he received in 1974 for his Hodgkin's lymphoma. In support of his opinion, Dr. DNB stated that the veteran was treated in an era when treatment was "more inexact and crude," noting that CT scans were not yet being used for diagnosis or radiation treatment planning, and that MOPP chemotherapy was relatively new and not yet fully understood. In this regard, Dr. DNB noted the veteran received the "unintentional and unusual" delivery of 3600 centigray of irradiation to a significant portion of his liver during treatment for his Hodgkin's lymphoma. Dr. DNB spelled out the evidence and medical sources that supported his opinion, stating that radiation for Hodgkin's lymphoma has been proven to significantly increase the risk of a second malignancy, citing from various medical sources. Based upon the cited medical sources, Dr. DNB stated that it would be accurate to state that the veteran's eventual death would "most probably" be from a solid tumor caused by his radiation therapy for Hodgkin's disease, rather than from any other cause. Dr. DNB also stated that the veteran was at higher risk for developing a treatment-induced cancer than other patients similarly irradiated. In support of this statement, Dr. DNB stated that according to Davita, et. al., Cancer: Principles and Practice of Oncology, 278, 2583-84 (2005), "patients with a family history of cancer are more likely to develop radiation associated second malignancies;" that solid tumor risk for Hodgkin's lymphoma patients is greatest for those treated at younger ages; and that the relative risk is more than twice as great for patients diagnosed before the age of 30. In this regard, Dr. DNB noted the veteran's mother had colon cancer and his father died of lung cancer. Dr. DNB also noted the veteran was 25 years old when he was diagnosed with Hodgkin's disease. In addition, Dr. DNB pointed to medical sources which state that nitrogen mustard and procarbazine chemotherapy, which the veteran received in 1964, causes a four-fold increase in risk, independent of radiation, for developing lung cancer after Hodgkin's lymphoma, and is believed to also possibly increase the risk of other solid tumors. Dr. DNB stated that the veteran was at increased risk of developing liver cancer as a treatment-induced cancer because he actually received a large dose of radiation to his liver, noting that it is highly probable that radiation can cause liver cancer, because it causes other gastrointestinal carcinomas. Finally, Dr. DNB stated that the veteran's cancer has the features of a radiation-induced liver cancer. In this regard, Dr. DNB noted that (1) the timing of the veteran's cancer, 28 years after irradiation, is consistent with most radiation-induced cancers, which occur between 15 and 30 years after irradiation; (2) the cancer arose in the organ which was irradiated; (3) the cancer had a very atypical presentation, as it was almost exclusively confined to the peritoneal surfaces and was unusually aggressive; and (4) the veteran had none of the causal or risk factors that are usually present in those who develop liver cancer. Based on the medical sources and evidence summarized above, Dr. DNB stated that it is highly probable that the veteran's hepatocellular carcinoma was caused by the irradiation to his liver he received as part of the treatment for his Hodgkin's lymphoma, which was caused by his military service. II. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005). Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Given the fully favorable decision herein, discussed below, the Board finds that any possible error with regard to the timing or content of the VCAA notice provided to the appellant represents harmless error. III. Analysis Pursuant to 38 U.S.C.A. § 1110 (West 2002), a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including Hodgkin's disease, when manifested to a compensable degree within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309(a) (2005). Service connection also may be granted on a presumptive basis for Hodgkin's disease manifested to a compensable degree at any time after service in a veteran who had active military, naval, or air service during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309(e), 3.313 (2005). In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service- connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312. When it is determined that a veteran's death was service connected, his surviving spouse is generally entitled to dependency and indemnity compensation (DIC). See 38 U.S.C.A. § 101 (West 2002). The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either 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). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death, that it combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). The debilitating effects of a service-connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). In this case, the appellant contends that veteran's death was caused by Hodgkin's disease due to exposure to Agent Orange while serving in Vietnam. The appellant also contends that the veteran's death was caused by liver cancer due to radiation treatment he received for Hodgkin's disease. The veteran's DD Form 214 indicates that, among other awards and decorations, he received the Vietnam Service Medal with two Bronze Stars, the Vietnam Campaign Medal with Device, and the Combat Infantry Badge while serving as a field radio mechanic. The Board notes that these decorations and the veteran's military occupational specialty (MOS) as a field radio mechanic establish that the veteran had in-country service in Vietnam, as required for him to qualify for presumptive service connection based upon possible exposure to Agent Orange or other herbicides. However, the veteran's death certifiiate lists only liver cancer as his cause of death. Therefore, the Board cannot find that the veteran's death was solely caused by Hodgkin's disease due to exposure to herbicides, to include Agent Orange, while on active duty in Vietnam. The Board notes that service connection would have been presumed and granted for Hodgkin's disease if the veteran had filed such a claim before he died. However, no such claim was initiated and, as noted above, the veteran's Hodgkin's disease did not directly cause his death, as evidenced by his death certificate. Therefore, the issue before the Board is whether there is a causal relationship between the radiation treatment the veteran received for Hodgkin's disease and the liver cancer he later manifested. The Board notes that, in evaluating the issue at hand, the veteran's Hodgkin's disease will be presumed to have incurred while he was on active duty in Vietnam. The record contains two medical opinions which address whether the veteran's Hodgkin's disease and the treatment he received therefor are related to his liver cancer. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that we cannot make our own independent medical determinations, and that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. The first medical opinion was furnished by VA in September 2003. Since the veteran was deceased, the VA physician only reviewed the claims file and noted the medical history. Based upon his review of the claims file, the VA physician opined that it appears that the veteran's Hodgkin's lymphoma "in no way" influenced development of his hepatocellular carcinoma, specifically noting that the veteran's Hodgkin's disease was treated entirely and there was no evidence of recurrence. The VA reviewer's opinion did not address the likelihood of a relationship between the treatment the veteran received for Hodgkin's disease and liver cancer. A second medical opinion was provided by Dr. DRB, a private, Board Certified Hematologist and Medical Oncologist, dated August 2005. Although it is does not appear that Dr. DRB reviewed the veteran's claims file, he did review medical records dated from 1974 to 2002 which were available to him. Dr. DRB was also able to base his report upon previous examination of the veteran, as he was his attending physician and oncologist from September to October 2002. Based on his first-hand knowledge of the veteran's condition and review of the medical records, Dr. DRB opined that it is highly probable that the veteran's hepatocellular carcinoma was caused by the irradiation to his liver, which he received as treatment for his Hodgkin's lymphoma. In support of his opinion, as noted above, Dr. DNB stated that radiation for Hodgkin's lymphoma and procarbazine chemotherapy has been proven to significantly increase the risk of a second malignancy and, therefore, the veteran was a higher risk for developing radiation or treatment-induced cancer. Dr. DNB stated that the veteran's higher risk was also evidenced by his family history of cancer, his being diagnosed with Hodgkin's disease at 25 years of age, and his receiving a large dose of radiation to his liver. The Board notes that, in directly addressing whether the treatment the veteran received for Hodgkin's disease was likely to have caused his liver cancer, Dr. DRB identified the medical sources that supported his conclusion and applied those principles to the veteran's medical evidence. While the findings of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board does consider the September 2003 VA medical opinion to be competent medical evidence. However, the Board finds this opinion to be of less probative value than the August 2005 private medical opinion because it does not address the likelihood of the radiation and chemotherapy treatment the veteran received for Hodgkin's disease substantially or materially contributing to the development of his liver cancer. While the September 2003 VA opinion accurately states there is no evidence of recurrence of Hodgkin's disease in the evidence of record, the Board notes the record does contain references to the possibility that the treatment for Hodgkin's disease was related to the development of liver cancer. In addition, while VA does not necessarily give more weight to an opinion from a veteran's treating physician, see White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001), the Board notes that Dr. DRB had first-hand knowledge of the veteran's condition, as he was the veteran's attending physician and oncologist during the period immediately preceding his death. Moreover, Dr. DRB substantiated his opinion with both medical principles and treatise evidence. Here, the Board finds that the evidence is in approximate balance as to the appellant's claim that the radiation and chemotherapy treatment which the veteran received for Hodgkin's disease substantially or materially contributed to the later manifested liver cancer, which caused the veteran's death. For the appellant to be successful in her claim, she needs to show only that it is at least as likely as not that the veteran's treatment for Hodgkin's disease materially or substantially caused him to develop liver cancer, which caused his death. See 38 U.S.C.A. § 5107 (West 2002). Here, we believe that standard has been met. In summary, having weighed the evidence both in support of and against the claim, the Board concludes that the preponderance of evidence is not against finding in favor of the appellant. Therefore, without finding error in the previous action taken by the RO, the Board will exercise its discretion to find that the evidence is in relative equipoise, and will conclude that service connection for cause of death is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for cause of the veteran's death is granted. _________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs