Citation Nr: 1120210 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 08-07 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from March 1946 to August 1947. He died in May 2006. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board observes that the appellant requested a hearing before a Veterans Law Judge sitting at the RO in her January 2008 substantive appeal (VA Form 9). Therefore, she was scheduled for her requested hearing in April 2010; however, on the day of her hearing, she withdrew her hearing request and indicated that she wished for the Board to make a decision on her claim. Therefore, the appellant's request for a Board hearing is withdrawn. 38 C.F.R. § 20.704(e). In June 2010, this matter was remanded for additional development and adjudication. This having been completed, the case has been returned to the Board for further review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The certificate of death indicates that the Veteran died in May 2006 and that the immediate cause of death was metastatic esophageal carcinoma; carcinoma of the colon was noted to be a significant condition contributing to death but not related to the immediate cause of death. 2. At the time of death, the Veteran was service-connected for residuals of a gunshot wound to the left thigh (muscle group XV) status post knee replacement, evaluated as 60 percent disabling; osteomyelitis of the left femur, evaluated as 30 percent disabling; and right knee replacement, evaluated as 30 percent disabling, for a combined evaluation of 90 percent and entitlement to a total evaluation based on individual unemployability from March 16, 2003. 3. Metastatic esophageal carcinoma and carcinoma of the colon were first manifested many years after service, and are not shown to be causally or etiologically related to service or to a service connected disability. 4. A disability of service origin is not shown to have been causally or etiologically related to, or to have played any role in producing or hastening the Veteran's death. CONCLUSION OF LAW The Veteran's death was not caused, or substantially or materially contributed to, by a service-connected disability. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA Before addressing the merits of the appellant's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notification obligation in this case was accomplished by way of letters from the RO to the appellant dated in August 2006 and June 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Hupp v. Nicholson, 21 Vet. App. 342 (2007). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. In this regard, the Veteran's service treatment records, certificate of death, post-service VA and private treatment records, and statements in support of the appellant's claim, have been associated with the claims file. The appellant has also been afforded a VA examination in connection with the claim dated in December 2010. VA has provided the appellant with every opportunity to submit evidence and arguments in support of her claim, and to respond to VA notices. Further, the appellant and her representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the appellant's appeal. II. Analysis Determinations as to whether service connection may be granted for a disability that caused or contributed to a Veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if such diseases become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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 is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In this case, the Veteran died in May 2006. The death certificate reflects that the immediate cause of death was metastatic esophageal carcinoma. Carcinoma of the colon was noted to be a significant condition contributing to death but not related to the immediate cause of death. At the time of the Veteran's death, he was service-connected for residuals of a gunshot wound to the left thigh (muscle group XV), status post knee replacement; osteomyelitis of the left femur; and right knee replacement. The appellant contends that the Veteran's service-connected disabilities, to specifically include his osteomyelitis of the left femur, combined to hasten his death. She alleges that, when the Veteran was diagnosed with his fatal cancer, he was unable to receive chemotherapy as a result of his weakened condition, which was due to his service-connected disabilities, to specifically include his osteomyelitis. As such, the appellant claims that service connection for the cause of the Veteran's death is warranted. In support of her claim, the appellant submitted several statements from the Veteran's physicians. In a June 2006 statement, Dr. Soltan, who signed the Veteran's death certificate, indicated that the Veteran had been under his care for metastatic esophageal and colon cancer and had been offered the option of palliative chemotherapy for life prolongation and symptom control. Dr. Soltan stated that the Veteran was informed that chemotherapy was associated with an increased risk of activation of his underlying osteomyelitis and ultimately opted not to receive chemotherapy. In a March 2007 statement, Dr. Soltan further indicated that the Veteran had osteomyelitis, which aggravated the cancer, and could not undergo treatment due to osteomyelitis. Additionally, in a June 2006 statement, Dr. Bruce stated that the Veteran was seen in April 2006 and was diagnosed with esophageal cancer with metastases to the liver. He further indicated that he had arranged for chemotherapy, but the Veteran declined based on the risk of osteomyelitis recurring in his left femur. Dr. Bruce stated that it stood to reason that the Veteran's demise may have been accelerated by the fact that he could not take chemotherapy because of his history of osteomyelitis. Based on the foregoing, the Board remanded this matter in order to obtain an opinion regarding whether the Veteran's service-connected disabilities, to include his osteomyelitis, caused or contributed to his death, or whether the Veteran's cause of death was otherwise related to his military service. See DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The appellant was afforded a VA examination dated in December 2010. The examiner indicated that the Veteran's claims file had been reviewed in connection with the report. The Veteran was noted to have died on May [redacted], 2006 of esophageal cancer and metastases to the liver. The Veteran was offered chemotherapy for this condition, but he declined based on the notion that such would aggravate the service-connected osteomyelitis in the left femur. The examiner noted that the osteomyelitis occurred almost 59 years before the Veteran's death. During that time, the Veteran underwent a successful total knee replacement on the left. The examiner stated that this would not have been done if there was the possibility of an infection being stirred up. The examiner then noted that the esophageal cancer with metastases was diagnosed on April 26, 2006 and the Veteran died five weeks later on May [redacted], 2006. Thus, the causative condition of death was quite aggressive and rapid, and chemotherapy would not have made any difference to its progress. In response to questions regarding the Veteran's condition and death, the examiner also stated that "[i]n my opinion, it is unlikely that the Veteran's service-connected osteomyelitis of the left femur caused or aggravated his carcinoma of the colon and/or metastatic esophageal carcinoma. There is no pathophysiologic connection or causative relationship between the conditions of osteomyelitis, colon carcinoma and metastatic esophageal carcinoma. The statements of Drs. Soltan and Bruce relate to the withholding of chemotherapy on the notion that such would aggravate his osteomyelitis. There is the possibility that chemotherapy might do this. However, there is evidence that the osteomyelitis was adequately under control since it was at least 5 decades that had elapsed since the osteomyelitis began and the patient underwent a total joint replacement on that extremity and this did not aggravate the osteomyelitis. Furthermore, the patient died so rapidly, namely within 5 weeks of the onset of diagnosis, that even if he had been given chemotherapy it is unlikely that the chemotherapy would have had a remedial or beneficial effect." The examiner also stated that Veteran's service-connected residuals of a gunshot wound to the left thigh (muscle group XV) status post knee replacement, osteomyelitis of the left femur, and right knee replacement were not the principal or contributory cause of the Veteran's death. The examiner indicated that the Veteran's cause of death was due to his esophageal cancer with metastatic liver disease. The Veteran's service-connected disorders were not principal or other causes for esophageal cancer and would not have contributed to the Veteran's rapid death. The examiner stated that there is no pathophysiological connection or etiologic/causative relationship between the Veteran's service-connected conditions and metastatic esophageal cancer. The examiner also found that the Veteran's service-connected disabilities did not contribute substantially or materially to the cause of death. Finally, the examiner opined that the Veteran's cause of death, metastatic esophageal cancer, was not related to the Veteran's military service. Service treatment records were noted to document treatment for the Veteran's gunshot wound to the left thigh with compound fracture to the middle third of the femur and osteomyelitis, and for neurotic traits. The examiner found that none of these conditions are causative for the development of metastatic esophageal cancer. Based on the foregoing, the Board finds that service connection for cause of the Veteran's death is not warranted in this case. Here, the medical evidence does not indicate metastatic esophageal carcinoma or carcinoma of the colon in service or within one year of service. Further, the appellant has not presented any evidence of a nexus between an event in service and the Veteran's metastatic esophageal carcinoma and carcinoma of the colon. In addition, the December 2010 VA examiner, that examined the Veteran's claims file in connection with the report and opinion, found that it was unlikely that the Veteran's service-connected osteomyelitis of the left femur caused or aggravated his carcinoma of the colon and/or metastatic esophageal carcinoma, including the decision to forego chemotherapy. There was found to be no pathophysiologic connection or causative relationship between the conditions of osteomyelitis, colon carcinoma and metastatic esophageal carcinoma. While the examiner indicated that withholding chemotherapy may have aggravated his osteomyelitis, the examiner stated that the osteomyelitis had been adequately under control with no aggravation from a total joint replacement and, furthermore, the Veteran died so rapidly after being diagnosed that it was unlikely that the chemotherapy would have had a remedial or beneficial effect. The examiner also stated that Veteran's service-connected disabilities were not the principal or contributory cause of the Veteran's death, were not principal or other causes for esophageal cancer, and did not contribute substantially or materially to the cause of death. Finally, the examiner opined that the Veteran's cause of death, metastatic esophageal cancer, was not related to the Veteran's military service. Thus, there is no basis to grant service connection. 38 C.F.R. §§ 3.303, 3.307, 3.309. In addition, the Board has considered the appellant's contentions that the Veteran's service-connected disabilities caused or contributed to the Veteran's cancer and thereby his death. The appellant, however, as a layperson, is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (lay testimony is not competent to establish, and therefore not probative of, a medical nexus). Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In this regard, the Board notes that lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but lay witnesses are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Additionally, while non-precedential, in a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond an appellant's own conclusory statements regarding causation to establish that the appellant suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this case, as the appellant has only provided her own conclusory statements regarding causation, the Board finds that the appellant's contentions, including regarding a nexus between the Veteran's service-connected disabilities and his cancers and death, to be of little probative value, as she is not competent to opine on a medical question. While the appellant believes that the Veteran's fatal cancers were due to the Veteran's active service, the medical evidence, including the opinion of the December 2010 VA examiner, does not support that assertion. As the medical evidence of record is against the claim, the Board finds no basis for a favorable disposition of the appellant's claim. Accordingly, the appeal is denied. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death. Therefore, the benefit of the doubt doctrine does not apply and the appeal is denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs