Citation Nr: 1021190 Decision Date: 06/08/10 Archive Date: 06/21/10 DOCKET NO. 06-07 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESSES AT HEARING ON APPEAL Appellant and Craig M. Bash, M.D. ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served from August 1966 to October 1988, including service in the Republic of Vietnam from January 4, 1972 to November 4, 1972. The appellant is the Veteran's surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2004 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the appellant's claim for service connection for the cause of the Veteran's death. In June 2006, the appellant testified at a hearing before a Veterans Law Judge who is no longer employed at the Board. The appellant was notified of this by correspondence dated in May 2009. In correspondence also dated in May 2009, the appellant indicated that she did not want another hearing. In November 2007, the Board requested a medical opinion from an independent medical expert (IME) in accordance with 38 U.S.C.A. § 7109 (West 2002) and 38 C.F.R. § 20.901(d) (2009). After the August 2008 opinion was received at the Board, the appellant was provided a copy and 60 days to submit any additional evidence or argument in response to the opinion. 38 C.F.R. § 20.903. The appellant responded with written argument and additional medical evidence and waived initial RO consideration. A July 2009 Board decision denied service connection for the cause of the Veteran's death. The appellant appealed that decision to United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, the Court entered an Order in January 2010 vacating the July 2009 Board decision and remanding the case to the Board for compliance with the Joint Motion for Remand. In correspondence received in April 2004, prior to his death in May 2004, the Veteran filed VA Form 21-4138, Statement in Support of Claim, in which he stated that he had "[f]iled service connected claim on 2/27/2004 for bilateral vein condition." At his death he was service-connected for varicosity of the right calf but was not service-connected for varicose veins of the left leg. The matter of whether the Veteran was claiming service connection for varicose veins of the left leg or a claim for an increased rating for the right leg, for the purpose of accrued benefits, has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over any such claim(s) and they are referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed to Agent Orange during service. 2. The Veteran died on May [redacted], 2004. The death certificate lists his cause of death as carcinoid tumor. 3. Although the carcinoid tumor that caused the Veteran's death was first manifested many years after service, with the favorable resolution of doubt, the primary site of the Veteran's fatal cancer was his prostate, and is presumptively due to his exposure to herbicides in Vietnam. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Law and Regulations When a Veteran dies from a service-connected disability, his surviving spouse, children and parents are entitled to dependency and indemnity compensation. 38 U.S.C.A. § 1310. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be granted on a presumptive basis for certain chronic diseases, including malignant tumors, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2007); 38 C.F.R. §§ 3.307, 3.309 (2009). For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially and materially to the Veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. A veteran may be entitled to a presumption of service connection if he or she is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents and meets certain other requirements. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Specifically, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. A Veteran who served in the Republic of Vietnam shall be presumed to have been exposed to herbicide. 38 U.S.C.A. § 1116. In this case, the Veteran's service personnel records indicate that he served in the Republic of Vietnam during active service and is therefore presumed to have been exposed to herbicides. Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) (2009), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. The Veteran's carcinoid tumor, later diagnosed as metastatic small cell undifferentiated cancer, however, is not among these diseases or disorders. 38 C.F.R. §§ 3.307(a)(6)(iii); 3.307(d), 3.309(e) (2009). However, prostate cancer is among these disorders. 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides, however, does not preclude an appellant from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Analysis The Veteran served on active military duty from August 1966 to October 1988, with service in Vietnam. He died on May [redacted], 2004. A May 2004 death certificate lists his cause of death as a carcinoid tumor. No other principal or contributory cause of death is specified. At the time of his death, the Veteran was service-connected for arthritis in the ankles, wrists, and cervical spine; hiatal hernia; bilateral hearing loss; left ureteral calculus; scar due to inguinal hernia repair; dermatitis of the upper left leg; varicosity of the right calf; and hammertoe of the second right toe. The record before the Board contains service treatment records and post-service treatment records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). Based on a thorough review of the record, the Board finds that the evidence is in favor of the appellant's claim of service connection for the Veteran's cause of death. The Veteran's service treatment records are negative for any complaints, diagnoses, or treatment of cancerous tumors or related problems. The first evidence of record showing complaints, diagnoses, or treatment of cancer is dated in May 2000. In May 2000, the Veteran underwent a prostate biopsy, which revealed atypical focal glands with prominent red nucleoli. However, the physician was hesitant to make a definitive diagnosis because the focal area was so limited. In June 2000, the Veteran underwent a left prostate gland biopsy, which revealed small glands lined by enlarged atypical nuclei. The physician noted that this was a very atypical focus but was not certain whether it was diagnostic of malignancy. At a follow-up visit in July 2000, the physician noted that while the Veteran's prostate-specific antigen (PSA) value had been rising, the pathologists have been unwilling to diagnose his condition as cancer. In August 2001, the Veteran underwent a bone scan which revealed no evidence of osseus metastatic disease. From 2000 to 2003 the record is replete with clinical notations that the Veteran had hematuria. Also on file is information submitted by the appellant which was obtained from medical sources on the Internet. This information reflects the difficulties encountered in diagnosing prostate cancer, including the difficulties in diagnosing prostate cancer on the basis of biopsies. A July 2003 prostate biopsy showed no malignancy. However, in September 2003, the Veteran underwent a gallbladder ultrasound that showed evidence of diffusely populated lesions within the liver, most suggestive of metastases. He then underwent a needle biopsy of the liver. The physician found evidence of infiltrating small cell undifferentiated carcinoma with compatible cytologic features and scattered mitotic features, noting that the tumor was compatible with multiple primary sites of origin. Later that month, the Veteran was referred to a hematology and oncology specialist who diagnosed the Veteran with metastatic small cell undifferentiated cancer to the liver with no obvious primary site. In October 2003, the Veteran was referred for a gastrointestinal tumor consultation, in which the physician noted the Veteran's mild prostate abnormalities and that the prostate can be a site of small cell malignancies, but concluded that it was not clear that the Veteran's prostate was the source. Later that month, the Veteran underwent a computed tomography (CT) enteroclysis, which showed no evidence of a gastrointestinal mass. The physician noted that the terminal ileum was normal, but mostly consistent with enteritis without associated obstruction. In November 2003, the Veteran was examined at the Mayo Clinic, where he was diagnosed with metastatic small cell carcinoma, poorly differentiated. An autopsy was not performed upon the Veteran's death in May 2004. A VA physician reviewed the Veteran's medical history in June 2005 and concluded that his death was not caused by prostate cancer because there was no documentation of prostate cancer at the time of his death and that it would be pure speculation to assume that the prostate gland was the source of the Veteran's cancer. The VA physician noted that the Veteran only had marginally elevated PSA values and that the Veteran's July 2003 prostate gland biopsy revealed no evidence of malignancy. Furthermore, the VA physician noted that the Veteran's immediate cause of death would be more appropriately considered as "metastatic infiltrating small cell undifferentiated carcinoma" since there was nothing within the Veteran's claims file to support a pathological diagnosis of carcinoid tumor. However, after the Veteran's death, the appellant hired a Board-certified radiologist with specialized training in neuroradiology to render an independent medical evaluation. In February 2006 this physician opined that the Veteran's metastatic cancer was most likely the prostate in origin and caused by his exposure to Agent Orange in service. Other sources for small cell cancer (other than the prostate) had been ruled out by various studies. He had multiple positive indicators for prostate cancer, e.g., abnormal prostate biopsy findings, hematuria, abnormal ultrasound findings and the pathology reports all described abnormalities of atypia which was consistent with early carcinoma. Moreover, his opinion was consistent with the opinion of the Mayo Clinic oncologist. Although he acknowledged that the Veteran's pathology reports alone were not diagnostic of carcinoma, he concluded that the likely diagnosis is prostate cancer when the diagnostic reports are integrated with the positive ultrasound, rising PSA value, hematuria, and atypia slides, as well as the negative studies from other possible organ systems as the source. The private radiologist submitted a June 2006 addendum in which he agreed with the VA examiner's opinion that the Veteran's immediate cause of death would be more appropriately considered as "metastatic infiltrating small cell undifferentiated carcinoma." He supported his opinion of a prostatic origin by noting that: (1) the diagnosis of carcinoma appeared on the death certificate prior to the time it became only one of several considerations; (2) the physician who wrote the death certificate did not know the patient very well; (3) a July 2003 prostate biopsy was likely a false negative result because at least two previous ultrasounds guided positive for atypical cells; (4) patients with serially high PSA in the 7+ range commonly have prostate cancer; (5) atypical cells are often precursors and represent part of the early spectrum of cells found in prostate neoplasm; (6) the patient had ultrasound findings consistent with prostate cancer, namely hypocchoic regions which were the sites of the initial biopsies; (7) the doubling time for prostate cancer is relatively slow, therefore the fact that the Veteran had abnormal prostate biopsies in 2000 and died in 2004 is consistent with prostate cancer; (8) the Veteran's work-up to rule-in or rule-out cancer was negative for carcinoid when the CT enteroclysis and esophagogastroduodenoscopy (EGD) were performed with negative results; and (9) the Veteran's working diagnosis was prostate cancer, which was made by his primary care physician in 2001. The private radiologist concluded that it was more likely than not that the July 2003 biopsy was falsely negative; that it was more likely than not that the death certificate has a falsely positive diagnosis of carcinoid; that is was more likely than not that VA relied on false data in the biopsy and death certificate to reach its conclusion; that it was more likely than not that the Veteran died from undifferentiated metastatic disease that originated from his prostate; and that it was more likely than not that Agent Orange exposure in Vietnam caused his prostate cancer. In response, the Board obtained its own independent medical expert (IME) opinion from an expert urologist in August 2008 in order to ascertain (1) the proper diagnosis of the Veteran's cause of death; and (2) the likelihood that any diagnosed carcinoma was caused by exposure to Agent Orange or other herbicides in service. The IME opined that it was not likely that the Veteran had small-cell carcinoma of the prostate. He noted that small- cell carcinoma of the prostate is a rare tumor with only 130 cases described in medical literature to date. He added that 82 percent of small-cell carcinoma of the prostate patients suffered from local effects including gross hematuria, ureteral obstruction, and urine retention, and that the Veteran exhibited none of these features. The IME stated that the three biopsies which the Veteran underwent should have provided ample tissue to determine if there was a significant amount of prostate cancer present, and concluded that small-cell carcinoma of the prostate could not be implicated in this case because a gastrointestinal source was not identified. To the contrary, he concluded that the evidence indicated that he likely did not have small-cell carcinoma of the prostate. The IME also criticized the opinions and conclusions of the Board-certified radiologist hired by the appellant, finding them to suffer from significant bias. In particular, he noted that three of the radiologist's conclusions were incorrect. First, PSA elevation is usually not an indicator of prostate cancer. Second, the abnormalities described on the prostatic ultrasound do not implicate prostate cancer. Finally, while there may be some evidence that Agent Orange exposure is associated with adenocarcinoma of the prostate, there is absolutely no data to support its association with small-cell carcinoma of the prostate. In correspondence dated in December 2008, the private radiologist responded to the August 2008 IME opinion. He opined that the August 2008 IME is not useful due to factual errors, and because it did not provide an alternative opinion to account for the Veteran's positive ultrasound, positive PSA, or hematuria, nor did it provide another cancer source to account for the Veteran's death. Specifically, the radiologist indicated that the IME incorrectly stated that the Veteran had no hematuria and disagreed with the opinion that the hypoechoic regions on the ultrasound do not implicate prostate cancer. The Board finds that the private radiologist is correct in stating that the IME opinion contains factual errors. Specifically, the record is, as noted, replete with clinical notations that the Veteran had hematuria. Moreover, the IME opinion rested upon the absence not only of hematuria but also the absence of ureteral obstruction. However, the IME never accounted for the fact that the Veteran is service- connected for left ureteral calculus. The Board also observes that although the IME placed great significance on small-cell carcinoma being uncommonly found in the prostate, the evidence more closely comports with the opinion of the private radiologist, who stated that the only other source which was suspected as being the primary site of the Veteran's fatal cancer was the gastrointestinal system and this had effectively been ruled out by various tests. This was not addressed by the IME. Thus, with the favorable resolution of doubt in the appellant's favor, if the gastrointestinal system has been ruled out as the primary site of the Veteran's fatal cancer, and no other site but the prostate has been suspected, based on the abnormal pathological findings and the opinion of the private radiologist, which comports at least equally well with the evidentiary record as the opinion of the IME, the Board concludes that the Veteran's fatal cancer was primary to, i.e., originated in, his prostate. So, having been exposed to herbicides during his military service in Vietnam and having developed fatal prostate cancer after service, service connection for the cause of the Veteran's death is warranted. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and to assist claimants in substantiating VA claims which includes informing a claimant of what evidence needed to substantiate a claim and who, VA or claimant, will obtain it. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R § 3.159. Without deciding whether the notice and development requirements of VCAA have been satisfied, the Board is not precluded from granting the claim for service connection for the cause of the Veteran's death. This grant thus represents a full grant of the issue on appeal. A decision therefore poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs