Citation Nr: 1030749 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 05-25 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama 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 M.F. ATTORNEY FOR THE BOARD V. Chiappetta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1951 to April 1973. He died in July 2004. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (the Board) on appeal of an October 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Original jurisdiction now resides at the RO in Montgomery, Alabama. In August 2009, the appellant testified at a personal hearing which was chaired by the undersigned Veterans Law Judge at the Board's offices in Washington D.C. A transcript of the hearing has been associated with the Veteran's VA claims folder. Following the August 2009 hearing, the appellant submitted additional medical evidence and argument directly to the Board. The record contains a written waiver of consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2009). In October 2009, the Board solicited an expert medical opinion from a physician with the Veterans Health Administration (VHA) concerning the etiology of the Veteran's fatal chronic obstructive pulmonary disease (COPD). In March 2010, the Board received the requested VHA opinion. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from March 1951 to April 1973. 2. The Veteran died in July 2004. The death certificate lists the cause of death as respiratory failure due to pneumonia as a consequence of severe COPD. 3. The preponderance of the evidence is against a finding that the Veteran's fatal COPD is attributable to service or any incident of service; the preponderance of the evidence indicates that the disability is attributable to in-service and post- service tobacco use. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1310, 1131 (West 2002); 38 C.F.R. §§ 3.300, 3.309, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time," or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the case at hand, the record reflects that the originating agency provided the appellant with the notice required under the VCAA and under Hupp v. Nicholson, 21 Vet. App. 342 (2007), by a letter mailed in August 2004. To the extent that the appellant may not have been provided with complete notice until after the initial adjudication, the Board finds that there is no prejudice to her in proceeding with the issuance of a final decision. Following the provision of the required notice and the completion of all indicated development of the record, the RO readjudicated the appellant's claim in June 2005 and March 2008. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) [a timing error may be cured by a new VCAA notification followed by a readjudication of the claim]. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. The Board also notes that the Veteran's service treatment records, post-service private treatment records, and lay statements from the appellant, the Veteran's daughter, and three friends have been associated with the Veteran's claims file. Neither the appellant nor her representative has identified any outstanding evidence, to include any other medical records, that could be obtained to substantiate her cause of death claim. The Board is also unaware of any such outstanding evidence. As noted above, the Board obtained a VHA medical opinion in March 2010, the results of which will be discussed below. The report demonstrates that the examiner reviewed the Veteran's medical history and rendered appropriate diagnoses and opinions based on the questions presented by the Board. As such, the Board finds that VA's duty to assist with respect to obtaining additional medical opinions with respect to the issue on appeal have been met. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303 (2007). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of this issue has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and nonprejudicial to the appellant. The appellant has been accorded ample opportunity to present evidence and argument in support of her claim. See 38 C.F.R. § 3.103 (2009). She has retained the services of a representative and she testified before the undersigned at an August 2009 personal hearing. Accordingly, the Board will address the merits of the claim. Relevant law and regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a) (2009). In order to establish service connection for the cause of a veteran's death, the medical evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2009). 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. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312(a) (2009). For claims filed after June 9, 1998, the law prohibits service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a Veteran during active duty service. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300(a). Service connection, however, is not precluded where the disability or death resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service. 38 C.F.R. § 3.300(b)(1). For purposes of this section, "otherwise shown" means that the disability or death can be service-connected on some basis other than the Veteran's use of tobacco products during service. Id. Analysis The appellant seeks service connection for the cause of the Veteran's death. In substance, the appellant contends that the Veteran's fatal COPD was related to his in-service complaints of chest pain, shortness of breath and bronchitis. In the alternative, the appellant asserts that COPD was due to an alleged in-service diagnosis of emphysema, or to presumed exposure to Agent Orange while serving in Vietnam. In order to establish service connection for death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the claimed in-service disease or injury and death. Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999). With respect to element (1), it is undisputed that the Veteran died in 2004. The Veteran's death certificate lists his cause of death as respiratory failure due to pneumonia as a consequence of severe COPD. With respect to element (2), in service disease or injury, the Board will separately discuss disease and injury. Concerning in-service disease, the Veteran's service treatment records contain no treatment for, or diagnoses of COPD. Crucially, the Veteran's lungs were examined in November 1972, just before his retirement, and a "normal" clinical evaluation was indicated on the examination report. See the Veteran's November 2, 1972 Report of Medical Examination. Although the appellant, the Veteran's daughter, and friends C.W.B., E.L.B., and R.H.P. either assert or suggest that the Veteran was diagnosed with emphysema by a private doctor at Fort Sill, Oklahoma in the mid to late 1960s [see, e.g., the August 2009 hearing transcript, page 4], the above-referenced November 1972 examination report pertinently demonstrates that the Veteran exited service with no chronic disability of the lungs. Further, chest x-rays taken at the Army Hospital in Fort Sill in August 1969 specifically indicate a "normal" chest. See the August 6, 1969 Radiographic Report from the Army Hospital in Fort Sill, Oklahoma. The Board recognizes that the Veteran complained of, and was treated for shortness of breath, chest pain, coughing, and bronchitis at times during his twenty-two years of active duty service. In-service treatment reports however demonstrate that the Veteran smoked approximately two packs of cigarettes a day while at work, and one pack a day otherwise. See the August 29, 1969 Consultation Sheet. The Veteran's November 1972 retirement examination specifically highlighted the fact that the Veteran had occasional shortness of breath, chest pain, and cough, but also noted that the Veteran "smokes." See the November 2, 1972 Report of Medical Examination, page 2. Indeed, when the Veteran was noted to have mild bronchitis in September 1969, the physician pertinently indicated that treatment for the condition required the Veteran to "[s]top smoking, otherwise treatment will have to be symptomatic." Thus, it appears from these reports that the Veteran's in-service complaints of chest pain, shortness of breath, coughing, and bronchitis were symptoms associated with his tobacco use in-service, and not to any other underlying respiratory disease. There is no medical evidence of record to suggest otherwise. Based on these reports, and contrary to the lay assertions described above, in-service lung disease is not demonstrated by the evidence of record. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the claimant]. Concerning in-service injury, the injury here alleged is exposure to herbicides. See the appellant's March 3, 2009 letter to the Board. The Veteran's DD-214 shows that he served in the Republic of Vietnam during the Vietnam era. It is therefore presumed that the Veteran was exposed to Agent Orange while in Vietnam. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2009). Accordingly, in-service injury to the lungs is demonstrated with respect to the Veteran's presumed Agent Orange exposure alone. Moving to crucial element (3), nexus or relationship, the Board notes that service connection in this case may be awarded only if the competent evidence demonstrates that the Veteran's fatal COPD is directly related to his active duty service, and not to tobacco use. 38 C.F.R. § 3.300. In this case, there are three medical opinions of record as to the etiology of the Veteran's fatal respiratory condition. The first, obtained from Dr. G.W.S. in July 2004, specifies the following: The Veteran recently died of progressive respiratory failure due to severe emphysema and the complication thereof. His cigarettes clearly are a major risk factor, and it is my opinion that this disease has progressed over the years, surely dating back into his military years. See the July 30, 2004 letter from Dr. G.W.S. Pertinently however, the Veteran's service treatment records cited above clearly contradict Dr. G.W.S.'s assertion that the Veteran's emphysema dated back to his military years. Indeed, the Veteran's November 1972 examination report specifically showed that the Veteran had normal lungs upon retirement from active duty service. See the Veteran's November 2, 1972 Report of Medical Examination. Crucially, Dr. G.W.S. did not acknowledge the Veteran's negative retirement examination in his July 2004 letter, nor did he support his finding of in-service respiratory disease with any clinical rationale. Accordingly, Dr. G.W.S.'s opinion is afforded little, if any, probative value. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence]; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."] The second opinion of record is that of Dr. T.D.C., who in July 2005 indicated that he treated the Veteran since his discharge from the military, and that the Veteran has always "presented with cough, shortness of breath and on 2 occasions was found to have pneumonia. His pulmonary problems were most likely present when he was in the military and certainly contributed to his COPD." See the July 26, 2005 letter from Dr. T.D.C. Unlike Dr. G.W.S.'s opinion, Dr. T.D.C.'s opinion has ample support in the record. As discussed above, the Veteran's service treatment reports clearly demonstrate that the Veteran received treatment for shortness of breath, chest pain, coughing, and bronchitis in service. Further, Dr. T.D.C.'s opinion is consistent with the findings of the March 2010 VHA expert, who also noted that "it is as likely as not that the conditions contributing to the Veteran's death were initially manifested during the service." See the March 2010 VHA expert's report [citing to the Veteran's above-referenced September 1969 diagnosis of bronchitis]. Although it is clear that the Veteran's symptoms of shortness of breath, coughing, chest pain, or bronchitis initially manifested in service, as noted above, such symptomatology has been specifically attributed to the Veteran's in-service and post- service use of tobacco, and not to any other in-service lung disease or injury, to include the Veteran's presumed exposure to Agent Orange. Indeed, the March 2010 VHA expert pertinently opined that it is "more likely that the respiratory conditions that contributed to [the Veteran's] death were caused by continued tobacco abuse . . . ." The expert noted that the Veteran smoked one to three packs of cigarettes a day until the time of his hospitalization in June 2004, and that smoking is a well documented cause of COPD. See the March 2010 VHA expert's report. Significantly, the VHA expert's opinion relating the Veteran's fatal COPD to in-service and post-service tobacco abuse is supported by the treatment reports of Dr. G.W.S., who specifically diagnosed the Veteran with "smokers bronchitis, COPD" in October 2000, and with very severe COPD "with heavy cigarette abuse" upon the Veteran's death in 2004. See the October 30, 2000 treatment report of Dr. G.W.S.; see also Dr. G.W.S.'s July 2004 Discharge Summary. As noted above, a disability or death will not be service connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. In so far as the record demonstrates that the Veteran eventually developed fatal COPD as a consequence of smoking in service, marked by shortness of breath, bronchitis, chest pain, and coughing, service connection cannot be granted as a matter of law. The probative evidence does not demonstrate that service connection for the cause of the Veteran's death can be awarded on some basis other than the Veteran's use of tobacco products during service and for years following service. As discussed above, the Veteran exited active duty service with a definitive clinical finding of "normal" lungs, and did not develop his fatal COPD until 1995, more than 20 years after his retirement from service. During that time, the Veteran continued to smoke at least a pack a day, with intermittent but unsuccessful attempts to quit. No medical opinion of record indicates that the Veteran's COPD itself had its onset in service. Further, because the Veteran's diagnosed cause of death, COPD, is not listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e), medical nexus may not be presumed as a matter of law. The Board recognizes the appellant's assertion that the Veteran died with a spot on his lung that could have been cancer related to Agent Orange. See the appellant's March 3, 2009 letter to the Board. Indeed, lung cancer is a disease presumptively linked with exposure to herbicides under 38 C.F.R. § 3.309(e). However, the medical evidence of record clearly demonstrates that although the Veteran did have a nodule on his lower right lung when he died, such was tested before the Veteran's death and found to have no malignant cells. See the Veteran's July 2004 Cytology Pathology Report by Dr. G.M.S. The Veteran was never diagnosed with lung cancer, and no medical evidence of record directly links the Veteran's fatal COPD to his presumed in-service exposure to herbicides; rather the evidence clearly demonstrates that the Veteran's COPD was a result of a lifetime of heavy cigarette use. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The Board has fully considered the appellant's lay statements, as well as the lay statements of the Veteran's daughter and friends. The questions involved in this case, however, involve the etiology of a disability-namely, whether the Veteran's fatal COPD was due to tobacco use, Agent Orange, or some other in- service respiratory disease. These questions require opinions from persons with medical expertise, as the answers cannot be ascertained through lay observation. Neither the appellant, nor the Veteran's son and friends have been shown to possess the requisite medical training or credentials needed to render a competent opinion as to these questions. Accordingly, the lay opinions attributing the Veteran's COPD directly to service do not constitute competent medical evidence and lack probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). As outlined above, the competent evidence weighs against a finding that the disability is directly attributable to service, to include any incident of service other than tobacco use. The Board is sympathetic to the appellant's loss of her husband, but it must rely on the competent medical evidence in making its determination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) [Board is prohibited from making conclusions based on its own medical judgment]. In the present case, the competent medical evidence shows that the Veteran developed COPD in 1995 which ultimately led to his death. While there may be a causal relationship between the Veteran's in-service and post-service tobacco use and COPD, service connection for the cause of the Veteran's death based on any such theory of entitlement is barred as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As for whether the competent evidence demonstrates that the Veteran's death was directly due to military service, to include an alleged in-service diagnosis of emphysema and presumed Agent Orange exposure, the preponderance of the evidence is against such a finding. Therefore, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs