Citation Nr: 1244071 Decision Date: 12/28/12 Archive Date: 12/31/12 DOCKET NO. 06-08 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to basic eligibility for Dependents' Education Assistance (DEA) under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Joseph R. Moore, Esq. ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to April 1973, and from October 1981 to December 1987. The Veteran died in June 2002; the appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied entitlement to DIC based upon service connection for the cause of the Veteran's death, and also denied entitlement to DEA under Chapter 35, Title 38, United States Code. During the course of the appeal, the claims file was transferred to the RO and Insurance Center in Philadelphia, Pennsylvania. The Board denied the claims addressed herein in a June 2011 decision. The appellant appealed to the United States Court of Appeals for Veteran's Claims (Court). In February 2012, the parties submitted a Joint Motion for Remand (JMR). Also, in February 2012, the Court granted the JMR, which vacated the Board's June 2011 decision and remanded the claims back to the Board for development. In December 2012, the appellant submitted additional argument and evidence with what amounts to a waiver of RO consideration of that evidence. The Board will therefore consider this evidence in deciding the claim on appeal. 38 C.F.R. § 20.1304. Because the Board herein is granting the benefits sought on appeal, there is no prejudice in the Board considering the evidence in the first instance. FINDINGS OF FACT 1. The Veteran did not serve in Vietnam, and exposure to herbicides is not otherwise presumed. 2. The Veteran died in June 2002; the cause of death listed on his death certificate is pancreatic cancer. 3. At the time of his death, the Veteran was service-connected for posttraumatic stress disorder (PTSD)(rated as 70 percent disabling); degenerative disc disease of the lumbosacral spine (rated as 40 percent disabling); arthritis of the cervical spine with left radiculopathy (rated as 20 percent disabling); and hiatal hernia with esophageal reflux and esophageal ring (rated as 10 percent disabling). His combined rating was 90 percent. 4. The evidence is at least in equipoise as to whether there is an etiological relationship between the Veteran's service-connected PTSD, his secondary alcohol abuse, and his fatal pancreatic cancer. 5. To the extent that DIC benefits based on service connection for cause of the Veteran's death are payable, the appellant's basic eligibility to receive DEA benefits is met. CONCLUSIONS OF LAW 1. Giving the benefit of the doubt to the Veteran, the criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5107 (West 2002 ); 38 C.F.R. § 3.22, 3.102, 3.303, 3.312 (2012). 2. The appellant is eligible for to receive DEA benefits under 38 U.S.C. Chapter 35 by law. 38 U.S.C.A. §§ 1310, 3500, 3501, 3510, 3512, 5103A, 5103(a) (West 2002); 38 C.F.R. §§ 3.312, 3.807, 21.3020, 21.3021 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the fully favorable decision contained herein, the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary, since any deficiency in the timing or content of such notice would constitute harmless error. To whatever extent the decision of the U.S. Court of Appeals for Veterans Claims in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as effective date, the Board finds that, given the favorable decision herein, the RO will address any applicable downstream issues when effectuating the award. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519(1996), citing Gilbert. Factual Background The Veteran died in June 2002. The death certificate reflects the cause of death as metastatic pancreatic cancer to the retroperitoneum; the approximate interval between onset and death was 2 months. At the time of his death, the Veteran was service-connected for posttraumatic stress disorder (PTSD)(rated as 70 percent disabling); degenerative disc disease of the lumbosacral spine (rated as 40 percent disabling); arthritis of the cervical spine with left radiculopathy (rated as 20 percent disabling); and hiatal hernia with esophageal reflux and esophageal ring (rated as 10 percent disabling). His combined rating was 90 percent. The appellant essentially contends that the Veteran's service-connected PTSD caused him to abuse alcohol and drugs, which, in turn, contributed to (or caused) his fatal pancreatic cancer. She alternatively asserts that service connection for pancreatic cancer should have been granted on a presumptive basis, as the Veteran was exposed to Agent Orange when handling body bags that had been flown in from Vietnam. At the outset, the Board notes that none of the evidence of record (to include service records) establishes that the Veteran served in the Republic of Vietnam. Therefore, exposure to Agent Orange cannot be presumed. Furthermore, as the claim for service connection for the Veteran's cause of death is being granted on other grounds herein, no additional discussion regarding herbicide exposure is necessary here. By way of history, review of the claims file shows that the Veteran had been service-connected for PTSD from August 1995. The record contains numerous private and VA treatment/examinations reports, notably, none of which indicate that the Veteran's alcohol and/or drug abuse preceded or predated the onset of his PTSD. A May 2001 private treatment report shows that the Veteran presented with severe abdominal pain, as well as a positive history for obesity, erectile dysfunction, and prostate enlargement. The Veteran reported that he had been drinking approximately a case a week; it was unclear if he had been drinking significantly more. The diagnostic impression was likely alcoholic pancreatitis. See May 2001 Treatment from North Okaloosa Medical Center, Dr. Ringel. An April 2002 VA treatment report reflects that the Veteran reported having stopped drinking one year prior, although the clinical history indicated a "history of alcohol abuse." A May 2002 private treatment report reflects that the Veteran presented with a fairly severe upper abdominal bleed. Endoscopy revealed adenocarcinoma, likely from a pancreatic mass. Minimal treatment intervention was available, and the Veteran later died in June 2002. See Fort Walton Beach Medical Center Discharge Summary, Dr. Ringel. In a January 2003 letter, Dr. Ringel, the Veteran's treating physician for his pancreatic cancer, submitted a letter on behalf of the appellant's claim. He noted that the Veteran had "clearly" been suffering from PTSD. He opined that it was "highly likely that the cause of his death was directly related to PTSD with the fact that he had multiple chemical dependencies and alcohol related problems, all of which have been documented as directly related to his posttraumatic stress disorder." The file was reviewed in June 2010 by a VA psychologist. He opined that it was at least as likely as not that the Veteran's alcohol/substance abuse was secondary to PTSD. He stated that in the absence of documented evidence that the Veteran's alcohol abuse preceded the onset of PTSD, it was at least as likely as not that it was secondary to it. The file was reviewed by another VA physician in June 2010. The examiner noted that pancreatic cancer was the 4th leading cause of death among men and that 40 percent of the cases were sporadic in nature; 30 percent were related to smoking; 20 percent were related to dietary factors; 5 to 10 percent were hereditary; and fewer than 5 percent of pancreatic cancers were due to underlying chronic pancreatitis, with smoking being the most common environmental risk factor for pancreatic carcinoma. Obesity and diabetes were also noted as factors associated with a higher incidence of pancreatic cancer. He further stated that "alcohol consumption does not appear to be an independent risk factor for pancreatic cancer unless it is associated with chronic pancreatitis." The VA examiner ultimately opined that it was less likely than not that the Veteran's alcohol and polysubstnace abuse caused or contributed materially to his development of pancreatic cancer, and thereby, his death. He reasoned that the greatest risk factors appeared to be diabetes, random chance, smoking, and dietary factors. He also noted that the Veteran's pancreatitis episode had occurred just one year prior to the pancreatic cancer diagnosis. The file was most recently reviewed by a private physician, Dr. Carey, in November 2012. He noted that the Veteran had been service-connected for PTSD since 1995. Citing to medical literature, he stated that there was a strong concordance between alcoholism and PTSD and that it was well documented that patients with PTSD commonly had issues with alcohol dependence. Dr. Carey referred to the Veteran's own statements in June 2002 treatment report, in which the Veteran stated, "with my PTSD and working shift work and feeling angry and bad all the time the only way for me to rest was to drink a lot and take pills to knock myself out." He cited to another VA treatment report dated in August 1999, which noted that the Veteran "drinks a 6 pack a day also to help promote sleep." Finally, Dr. Carey noted the Dr. Ringel's 2001 report, which indicated that the Veteran had been drinking approximately a case per week. Dr. Carey thus opined that it was apparent from these statements that the Veteran had become a heavy drinker in an effort to treat his PTSD-related symptoms and that he had abused alcohol for quite some time prior to his death. Dr. Carey also directly refuted the June 2010 examiner's finding that "alcohol consumption does not appear to be an independent risk factor for pancreatic cancer unless it is associated with chronic pancreatitis." Indeed, Dr. Carey cited to two independent medical studies, conducted in 2010 and 2011, which found that heavy alcohol drinking, alone, is an independent risk factor for the development of pancreatic cancer. In fact, the 2012 study from the Annals of Oncology found that heavy drinkers were 60 percent more likely to develop pancreatic cancer than abstainers and occasional drinkers. Dr. Carey noted that the Veteran had other risk factors, including obesity and diabetes, but also stated that there had been no family history of pancreatic cancer and no history of tobacco abuse. After a thorough review of the Veteran's medical records, as well as review of the current pertinent medical literature on the subject, Dr. Carey opined that the Veteran's heavy alcohol use was directly related to his service-connected PTSD. Further, given the lack of other significant factors, Dr. Carey stated that the eventual development of fatal pancreatic cancer was as likely as not directly related to his heavy alcohol use. He concluded by again noting that he specifically disagreed with the June 2010 VA examiner's finding that heavy alcohol use was not an independent risk factor for the development of pancreatic cancer. Analysis To establish service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service- connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Again, the record reflects that the Veteran died of pancreatic cancer in June 2002; it is the appellant's primary contention that the Veteran developed cancer as a result of his alcohol/drug abuse, which was precipitated by his service-connected PTSD. As an initial matter, the Board notes that all opinions of record, to include private and VA, support the conclusion that the Veteran's alcohol/drug abuse was due to his service-connected PTSD. This is not in dispute. Indeed, Dr. Ringel opined that the Veteran was a heavy drinker secondary to his service-connected PTSD (i.e., he was dependent on alcohol to treat his PTSD symptoms). The June 2010 VA psychologist likewise concluded that the Veteran abused alcohol secondary to his PTSD. Dr. Ringel also concluded that the Veteran had multiple chemical dependencies and alcohol related problems related to his PTSD. Thus, the remaining question for consideration here is whether the Veteran's PTSD-related alcohol abuse is etiologically related to his fatal pancreatic cancer. The Board is left with several conflicting medical opinions which address this matter. Specifically, two private opinions support the appellant's claim for service connection for the cause of the Veteran's death, and one VA opinion does not. When faced with conflicting medical opinions, the Board must weigh the credibility and probative value of each opinion, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to the evidence, the Board also considers factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). With respect to the January 2003 private opinion, Dr. Ringel unequivocally concluded that the Veteran's death was likely related to his PTSD, especially given his documented alcohol/drug dependencies. Dr. Ringel was the Veteran's treating physician throughout the course of his treatment for pancreatic cancer, and he was thus intimately familiar with the Veteran's medical history. For these reasons, the Board finds Dr. Ringel's opinion, although less comprehensive than the other opinions of record, to be highly probative. With respect to the June 2010 VA opinion, the examiner concluded that the Veteran's alcohol abuse did not cause or contribute to his fatal pancreatic cancer. In so finding, he also noted that alcohol consumption did not "appear" to be an independent risk factor for pancreatic cancer. Rather, he cited to smoking, diabetes, and other dietary risk factors. The Board affords very little probative value to this opinion for the following reasons. First, unlike the opinions provided by Dr. Carey and Dr. Ringel, the VA examiner failed to address the relationship between the service-connected PTSD and the Veteran's alcohol abuse. In addition, his conclusion that alcohol consumption did not "appear" to be an independent factor of pancreatic cancer was couched speculative terms and unsupported by current medical literature (as noted later by Dr. Carey). Lastly, the VA examiner erroneously cited to tobacco use as one of the contributing factors to pancreatic cancer in the Veteran's case; however, there is no evidence in the record indicating that the Veteran had a history of tobacco use (also noted by Dr. Carey). For all of these reasons, the Board finds the June 2010 VA opinion to be less persuasive and probative, overall. Finally, with respect the private November 2012 opinion, Dr. Carey concluded that the Veteran's alcoholism was secondary to service-connected PTSD, and in turn, contributed to the development of his pancreatic cancer, and ultimately caused his death in 2002. The Board finds Dr. Carey's opinion to be the most comprehensive and probative opinion of record as to question of nexus (i.e., an etiological link between the service-connected disability and the cause of death) in this case. This is so because it is based on a thorough review of the Veteran's medical history, as well as his PTSD and related alcohol abuse; it considers the Veteran's risk factors (or lack thereof) for pancreatic cancer; and it is supported by current medical literature which confirms that alcohol use is, in fact, an independent risk factor for pancreatic cancer. For all of these reasons, Dr. Carey's opinion is both highly persuasive and probative as to the medical issues in question here. Therefore, based on the most probative medical evidence of record, namely those opinions of Drs. Carey and Ringel, the Board finds that service connection is warranted for the cause of the Veteran's death since the Veteran's fatal pancreatic cancer is etiologically related to his alcohol abuse resulting from service-connected PTSD. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.312. Further, as service connection for the cause of the Veteran's death is granted, the criteria for basic eligibility for DEA under Chapter 35, Title 38, United States Code, have been met. Accordingly, in resolving all reasonable doubt in favor of the appellant, service connection for cause of Veteran's death is granted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Basic eligibility for DEA benefits under Chapter 35, Title 38, United States Code is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs