Citation Nr: 0620731 Decision Date: 07/17/06 Archive Date: 07/26/06 DOCKET NO. 05-08 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant and C.W. ATTORNEY FOR THE BOARD Kelli A. Kordich, Counsel INTRODUCTION The veteran served on active duty from December 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska, which denied the benefits sought on appeal. The appellant is the veteran's surviving spouse. She appeared at a hearing before the undersigned Veterans Law Judge sitting at the RO in May 2006. FINDINGS OF FACT 1. The veteran's amended Certificate of Death indicates he died in January 2004; the immediate cause of death was listed as colon cancer with another significant condition contributing to death but not resulting in the underlying cause noted as post-traumatic stress disorder (PTSD). 2. During the veteran's lifetime, service connection was established for PTSD evaluated as 50 percent disabling and after his death a pending claim for service connection for bilateral hearing loss was granted with a 0 percent (noncompensable) evaluation assigned. 3. A service-connected disability was not the immediate or underlying cause of the veteran's death, nor did a service- connected disability contribute substantially or materially to cause death, nor did a service-connected disability combine to cause death or aid or lend assistance to the production of death. 4. The veteran did not die of a service-connected disability, or have a total disability permanent in nature resulting from a service-connected disability, or die while a disability so evaluated was in existence. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute to the veteran's death. 38 U.S.C.A. 1101, 1110, 1112, 1131, 1310 (West 2002 & Supp. 2005); 38 C.F.R. 3.303, 3.310, 3.312, 3.316 (2005). 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; existence of a current disability; evidence of a nexus between service and the disability; the degree of disability, and the effective date of any disability benefits. The claimant must also be notified to submit all evidence in his or her possession, what specific evidence he or 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, affording VA examinations. 38 U.S.C.A. § 5103A. In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in April 2004 correspondence fulfills the provisions of 38 U.S.C.A. § 5103(a). Written correspondence provided in May 2006 provides notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. Finally, VA has secured all available pertinent evidence and conducted all appropriate development and there is no pertinent evidence which is not currently part of the claims file. Hence, VA has fulfilled its duty to assist the appellant in the prosecution of her claims. Background The cause of death on the veteran's original death certificate dated in January 2004 as colon cancer. An amendment to the death certificate issued in March 2004 added PTSD as a significant condition contributing to death but not resulting in the underlying cause of death. During the veteran's lifetime he was service connected for PTSD evaluated as 50 percent disabling. The veteran's claim for service connection for bilateral hearing loss was pending at the time of his death. By a rating decision dated November 2004, service connection was established for bilateral hearing loss rated at a noncompensable level. The veteran's service medical records are silent for complaints, treatment, or diagnosis for colon cancer or related disorders. The veteran was diagnosed with colon cancer with liver metastasis in February 2003 during an annual physical. VA records reflect that a health care provider noted at that time that the veteran's wife had reported that he had had "irritable bowel syndrome" for year. On her April 2004 claim for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits, and on her May 2004 statement, the appellant claimed that the veteran denied and ignored his physical health because of his PTSD until he developed Stage IV colon cancer. A review of the claims file shows that during the decades after service the veteran was treated by VA and private medical care providers for various disorders, including asthma, back pain, dental pain, and proteinuria. With respect to the last, it was noted that on several occasions the veteran ignored recommendations for follow-up laboratory testing. The veteran had a pulmonary consultation in April 2002. The consultation noted no abdominal pain, no nausea or emesis, no diarrhea or constipation, and no blood per rectum reported. Stool was noted as "heme negative." The veteran was diagnosed with colon cancer with liver metastasis in February 2003 after a workup from a positive guaiac test found during an annual physical. The veteran was treated with a right colectomy and chemotherapy. Treatment records show that the veteran was an active participant in health care decisions, asking many questions regarding his disease and management thereof. It was noted that the veteran talked a lot about what he wanted to do if the current treatment did not work and he stated he wanted things to kill the cancer cells not inhibit angiogenesis. In August 2003 the RO obtained an advisory opinion from a VA physician who noted that a review of the literature did not support a link between Agent Orange exposure and colon cancer. At his VA psychiatric examination in November 2003, the examiner did not indicate any avoidance or refusal of medical treatment by the veteran, nor does the report of this examination reflect that the veteran's competency was compromised by PTSD. In May 2004 B.K, Ph.D, wrote that he had worked for VA as a readjustment counselor and that he was aware of the problems the veteran had due to his combat experiences prior and at the time their sessions ended in the early 1990s. A September 2004 letter from R.K., a friend of the veteran, indicated that he tried to persuade the veteran to get a physical examination when the new Kenai VA Medical Center opened, but he kept putting it off. The veteran's friend believed the reason for the veteran putting off the physical was that he did not care. He stated that like many other veterans that suffer from PTSD, the veteran chose to ignore his health. A letter from Gonzalo Araoz-Fraser, M.D., received in March 2005 indicated that the physician reviewed the veteran's medical records and noted that as early as 1983 the veteran showed a distinct lack of regard for his health, was a "no show" for appointments and failed to take prescribed medicine in proper doses. Received at this time were numerous records, with entries highlighted in support of this statement. A letter from G.S. received in April 2005 stated that the veteran had been his best friend and, because his own family had a history of colon cancer, he always encouraged the veteran to have check ups for colon cancer as well. He noted that the veteran indicated that he would not have a colonoscopy done after his friend told him he had the procedure. At her May 2006 Travel Board hearing, the appellant testified that because of the veteran's PTSD he was completely in avoidance about his personal health, his personal care, and lifestyle. She stated she would have to make medical appointments for the veteran. She also noted that the veteran's personal hygiene was terrible and he had rotting teeth. The appellant stated that he did seek medical treatment for his asthma and did take medication, but would lapse and he would end up in the hospital. She stated the veteran was offered colon cancer screening tests by his doctors as early as five years before his diagnosis but he refused. The appellant testified that the veteran's doctor told him he would not give the veteran his asthma medication unless he submitted to colon cancer screening, which led to the colon cancer diagnosis. Received at the hearing were internet articles from the National Cancer Society, on the subject of colorectal cancer screening, and from VA's National Center for PTSD on the topic of avoidance. Analysis In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be a current disability resulting from that condition or injury. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also 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). Certain chronic disabilities, such as cancer, will be presumed to be related to service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2005). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (2005) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2005) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 Diabetes; Hodgkin's disease; chronic lympocytic leukemia (CLL), multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2005); see also 69 Fed. Reg. 31,882 (June 8, 2004); 68 Fed. Reg. 59,540-42 (Oct. 16, 2003). The Secretary of VA 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, 68 Fed. Reg. 27,630-41 (May 20, 2003). Specifically, the Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for bone cancer. See id at 27,632. Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may be established for the cause of a veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110 and 1112 (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that 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). A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110 and 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The determination as to whether these Hickson requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The appellant initially claimed that the veteran's colon cancer was a result of exposure to Agent Orange (herbicides) while serving in the Republic of Vietnam. The veteran served on active duty from December 1967 to January 1969; which included duty in the Republic of Vietnam. However, in this case, the appellant has not presented competent medical evidence that the veteran was diagnosed with a disease or disorder associated with exposure to herbicides that caused or contributed to his demise. There is no record of complaints of, or treatment for, or symptomatology consistent with any of the presumptive diseases due to exposure to herbicides during or after his active service. There is no evidence of cancer in service, or within one year of service discharge as he was not diagnosed with it until many years after. There is no competent medical diagnosis of soft tissue sarcoma. Although the veteran served in Vietnam, there is no competent medical evidence linking his fatal condition to his period of service (to include on a presumptive basis due to exposure to herbicides) or otherwise relating the veteran's death to his period of service. This is particularly so here, where colon cancer has specifically been rejected as being due to exposure to herbicides and there is no clinical evidence of sarcoma. The appellant has alleged that the veteran's service connected PTSD caused his death because he denied and ignored his physical health because of his PTSD. Service connection may be established on a secondary basis for a disability, shown to be proximately due to, or the result of, a service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board has carefully and sympathetically considered the appellant's contentions and conducted a thorough review of the claims file. She alleges that the veteran avoided medical treatment due to his PTSD, and that had he taken advantage of earlier opportunities for colon cancer screening, his disease would not have been fatal. Review of the records does show that, prior to the time cancer was diagnosed, the veteran at times neglected follow-up appointments or recommended laboratory testing. Whether such can reasonably be attributed to PTSD is unknown. At the same time, he did receive medical treatment for a variety of disorders over the years. None of the medical records speak to symptoms of PTSD or suggest that this psychiatric disability led to a delay in screening, which in turn led to premature death. Moreover, there is no indication that, once cancer was diagnosed, the veteran refused treatment or failed to make scheduled appointments. In fact, medical records show that the veteran asked questions about his disease and sought therapy to kill cancer cells and not inhibit angiogenesis. The report of the November 2003 VA PTSD examination does not indicate any aversion to or avoidance of medical treatment, or refusal to seek medical treatment. The Board has also considered the opinion rendered by Gonzalo Araoz-Fraser, M.D., who referenced the veteran's medical records, concluding that the records showed the veteran had a distinct lack of regard for his health. Dr. Araoz-Fraser, who is not identified as having specialized knowledge of psychiatry and who did not treat the veteran for psychiatric illness, did not opine that the veteran's death was the result of medical avoidance due to his service connected PTSD. Without competent evidence that the veteran intentionally avoided medical care as a result of service connected PTSD, which unfortunately is not present in this case, discerning his motives for not seeking colon cancer screening at an earlier point in time would amount to delving into his mind. Further, whether early testing would have saved the veteran's life is itself only a matter of speculation. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when unsupported by clinical evidence. The Board has not overlooked the veteran's friends' written statements to VA or the appellant's personal hearing testimony, or the personal hearing testimony of the witness. Lay witnesses can testify as to the visible symptoms or manifestations of a disease or disability. Caldwell v. Derwinski, 1 Vet. App. 466 (1991). As is the case with the appellant's assertions, these statements cannot be accepted, because the persons presenting them lack medical training. Although these persons are clearly sincere in their assertions, they are simply not qualified to make a medical judgment as to the connection between the veteran's death from colon cancer and his service connected PTSD. The incapacity of such lay persons to provide evidence regarding medical matters is a legal principle that has been established by the United States Court of Appeals for Veterans Claims (Court). See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). For these reasons, it is concluded that the evidence against the claim is more probative and of greater weight and, based on this evidence, the Board is constrained to find that service connection for the cause of the veteran's death is not warranted. There is simply no competent, medical evidence that the service connected PTSD caused or aggravated the veteran's colon cancer, or contributed substantially or materially to cause his death. In reaching this decision the Board has considered the doctrine of granting the benefit of the doubt to the appellant but does not find that the evidence is approximately balanced such as to warrant its application. ORDER Entitlement to service connection for the cause of the veteran's death is denied. ____________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs