Citation Nr: 1301263	
Decision Date: 01/11/13    Archive Date: 01/16/13

DOCKET NO.  02-06 273	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for cause of death (noted on the death certificate as uremia, with underlying causes of retroperitoneal lymphadenopathy and metastatic neuroendocrine carcinoma, and with multiple pulmonary metastatic nodules as a significant condition contributing to death, but not resulting in the underlying cause).


REPRESENTATION

Appellant represented by:	Dennis Peterson, Attorney at Law


ATTORNEY FOR THE BOARD

Jebby Rasputnis, Associate Counsel
INTRODUCTION

The Veteran served on active duty from November 1960 to November 1964.  He died in July 1999.  The Appellant is the Veteran's surviving spouse.

This claim, as well as a claim of entitlement to accrued benefits, last came before the Board of Veterans' Appeals (Board) in February 2012 on appeal from a December 1999 rating decision of the Department of Veterans Affairs (VA) in St. Petersburg, Florida.  The Appellant appealed that rating decision, but the Board denied the claims in August 2004.  The Appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court).  Following a Joint Motion by the parties, the Court vacated the Board's decision and remanded the appeal to the Board for further consideration.  

The Board remanded the appeal for additional development in March 2006 and October 2007 and denied the claims again in June 2008.  The Appellant again appealed the denial and the parties submitted another Joint Motion for Remand in March 2009.  The Court vacated the 2008 decision in April 2009 and remanded it to the Board.  In February 2009, the Board again denied the claims and subsequently the Appellant again appealed to the Court.  Pursuant to a September 2012 Joint Motion for Partial Remand, the Court vacated the portion of the February 2009 decision that denied entitlement for service connection for cause of death.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Appellant's appeal.  A review of the Virtual VA paperless claims processing system did not reveal any additional evidence pertinent to the present appeal. 




FINDINGS OF FACT

1.  The Veteran served on a Navy vessel that contained asbestosis.

2.  The Veteran was diagnosed with asbestosis prior to his death.

3.  An October 2010 VA medical opinion is credible evidence that the Veteran's asbestos-related lung disease was incurred as a result of his active duty service.

4.  The Veteran died as a result of neuroendocrine cancer, with kidney failure being the final mode of the Veteran's death due to (or as a consequence of) retroperitoneal lymphadenopathy due to (or as a consequence of) metastatic neuroendocrine carcinoma; an amended death certificate list lists multiple metastatic pulmonary nodules as a significant condition contributing to the Veteran's death but not resulting in the cause of death.

5.  An October 2010 VA medical opinion and a July 2007 private medical opinion constitute credible evidence that his asbestosis either contributed substantially and materially to his 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. 


CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death have been approximated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 3.312 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Assist and Notify

Prior to assessing the merits of the appeal, the Board must consider its responsibilities under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009) and implemented by 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  Under the VCAA, VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103.  See also Quartuccio v. Principi, 16 Vet.App. 183 (2002).

The Board presently grants the claim of service connection for the cause of the Veteran's death.  There is therefore no prejudice to the Appellant under VA's duties to notify and assist.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the claimant.  Shinseki v. Sanders, 129 S.Ct. 1696 (2009).

Entitlement to Service Connection for Cause of Death

The Appellant asserts that the Veteran's asbestosis resulted from his in-service experiences and significantly contributed to his death.  Having carefully considered the Appellant's contentions in light of the evidence of record and the applicable law, the Board finds an approximate balance of positive and negative evidence and will afford the Appellant the benefit of the doubt in order to grant the claim.  38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet.App. 518 (1996); Brown v. Brown, 5 Vet.App. 413 (1993) (under the "benefit-of-the-doubt" rule, only where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue).

Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, VA does not need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed.Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The Board herein focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appealed claims.  See Timberlake v. Gober, 14 Vet.App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

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).

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.

Of particular relevance to this case, the law also provides that, 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.

The benefit of the doubt rule provides that a claimant will prevail in a case where the positive evidence is in a relative balance with the negative evidence.  Therefore, a claimant prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise.  It is only when the weight of the evidence is against a claim that the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;  Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  In the third step, the Board weighs the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when 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. 

Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).  

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet.App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board weighs its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed.Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed.Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004); see Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004); Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303.  

Demonstration of continuity of symptomatology is an alternative method of establishing the second and third Shedden/Caluza element under 38 C.F.R. § 3.303(b).  Barr v. Nicholson, 21 Vet.App. 303 (2007); see Savage v. Brown, 10 Vet.App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet.App. 296, 302 (1999).  

Continuity of symptomatology may be established if a claimant can demonstrate the following: (1) that a condition was "noted" during service; (2) that there is evidence of post-service continuity of the same symptomatology; and (3) that there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet.App. at 495-96; see Hickson, 12 Vet.App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intervening causes.  38 C.F.R. § 3.303(b) (2012).  Continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b) (2012).  However, if the degree of impairment from disease attributable to service and disease not attributable to service cannot be medically ascertained, VA must consider the whole of the impairment as service connected.  Mittleider v. West, 11 Vet.App. 181 (1998); 38 C.F.R. § 3.102 (2012).

The Appellant contends that the Veteran experienced asbestosis as the result of in-service exposure to asbestos.  Service records reflect that the Veteran worked as a a boilerman on various ships in the Navy.  Based on the circumstances of his service, VA has conceded that he was exposed to asbestos during service.  VA Manual 21-1, Part VI, para. 7.21 (October 3, 1997, in effect when the Appellant submitted the claim on appeal); see also VAOPGCPREC 4-2000, Ashford v. Brown, 10 Vet.App. 120, 123-24 (1997).  Further, a VA medical expert opined in October 2010 that it was more likely than not that the Veteran experienced asbestosis as a result of his active duty service and the Board accepts that opinion as competent, probative medical evidence.  Buchanan, 451 F.3d 1331.

The Veteran sought treatment for fever in October 1997.  A private physician x-rayed his chest, which showed mild diffuse fibronodular changes.  The Veteran also complained of chest pain and underwent an echocardiogram that showed diabetic cardiomyopathy.  Private doctors completed a colonoscopy and biopsy in October 1997; the biopsy revealed a villotubular tumor. The physicians ordered additional testing and performed another x-ray of the chest in November 1997 which revealed findings consistent with chronic fibronodular changes throughout the lungs. A subsequent microsurgical discectomy, for treatment of herniation of a lumbar disc, revealed clusters of epitheliod cells suspicious for metastatic carcinoma.  Physicians ordered a bone scan that showed multiple areas of increased activity.

The Veteran underwent a CT of the abdomen in December 1997 which showed a left adrenal mass, a right adrenal necrotic mass, enlarged retroperitoneal lymph nodes, cholelithiasis, and, multiple calcified pleural based plaques seen at the lung bases.  The plaques were described as suspicious for asbestosis-related pleural disease.

Physicians ordered laparotomy and debulking of a retroperitoneal and adrenal tumors in December 1997.  Biopsies from the colon, kidneys, renal perihilar lymph nodes, liver, and gallbladder.  The surgeon noted that the right renal vein could not be separated from the pararenal mass extending from the adrenal gland to the upper pole of the kidney, and the right renal artery could not be seen, but appeared to the progressing through the mass.  However, colon biopsy showed villotubular adenoma and biopsy of perihilar renal lymph nodes disclosed lipogranulomata and paraganglioma, possibly a pheochromocytoma.  The treating physician concluded that the perirenal mass was consistent with malignancy. 

In January 1998, another private physician saw the Veteran for further evaluation.  The physician noted that the Veteran's lungs were clear and assigned a diagnosis of neuroendocrine cancer of unknown primary site.  The tumors seemed bulky and aggressive, with bone metastasis.  The Veteran underwent several periods of chemotherapy without any apparent response; the tumor continued to grow.  Subsequently, the Veteran was hospitalized on multiple occasions for symptoms associated with neuroendocrine malignancy.  A physician noted in February 1999 that chest CT showed small pericardial effusion, mild cardiomegaly, and several solid lung nodules that the physician described as "possibly metastatic."  Diffuse alveolar infiltrates were seen throughout the left lung, with persistent bilateral interstitial infiltrative changes, in May 1999.  A physician conducted a physical examination of the Veteran in June 1999 and noted metastasis of the liver, lungs, and bones as well as decreased breath sounds.   X-ray of the chest revealed a small right pleural effusion.

A private physician wrote to VA in June 1999 contending that the Veteran had metastatic neuroendocrine carcinoma complicated by malnutrition and weakness.  A nurse practitioner wrote to VA that same month and reported neuroendocrine cancer with nodules as shown on chest on x-ray that could be the result of either asbestos exposure or metastasis.  In July 1999, the Veteran was hospitalized for mental status changes and metastatic carcinoma.  His final diagnoses were uremia and coma, with secondary diagnoses of metastatic neuroendocrine carcinoma, diabetes, and anemia.

In a July 2000 letter, the private physician stated that the direct causes of the Veteran's death were neuroendocrine carcinomas with cancer of the lungs, liver and bones as contributory factors.  The Veteran's death certificate reports the causes of death as uremia, with underlying causes of retroperitoneal lymphadenopathy and metastatic neuroendocrine carcinoma; an amended death certificate lists multiple metastatic pulmonary nodules as a significant condition contributing to the Veteran's death but not resulting in the cause of death.

VA ordered an examiner to review the Veteran's claims files in October 2001.  The examiner stated that it would be a matter of speculation to say whether the Veteran's asbestos exposure contributed in any way to the cause of his death.  The examiner noted that the Veteran had a metastatic cancer to his lungs from his adrenal glands, but stated that those cancers were not primary lung cancers (which were noted as the type generally associated with asbestos exposure).  The examiner stated that, to his knowledge, there was no relationship between asbestos exposure and adrenal cancer.

VA requested that another VA examiner review the Veteran's claims file in November 2003.  The examiner opined that the immediate cause of the Veteran's death was "anemia" and noted that pleural-based or diaphragmatic-based plaques were present in the lungs.  However, the reviewer concluded that the plaques did not cause any significant or extensive damage to the lungs.  The Board finds that the the probative weight and persuasive value of the examiner's opinion is decreased by the incorrect citation of "anemia" as cause of death when the death certificate states "uremia." 

In December 2005, the Appellant submitted another private medical opinion stating that neuroendocrine carcinoma, not uremia, was the cause of the Veteran's death.  The physician opined that the Veteran's in-service exposure to asbestos was "as likely as not" the direct cause of the Veteran's multiple cancers and ultimate death.  In July 2006, VA ordered another examiner to review the Veteran's records - the examiner concluded that, although there were small plaques in the Veteran's lungs that were identified as asbestos-related, there was no objective data to support a finding of pulmonary dysfunction.  The examiner opined that the Veteran's death was not proximately due to or the result of asbestos exposure and, as a result,  asbestos exposure did not substantially and materially contribute to the Veteran's death. 

Another private physician wrote to VA in July 2007.  His letter reflects extensive review of the medical evidence.  The physician stated that, since the primary site of cancer was not positively established, primary lung cancer could not be positively ruled out.  The physician also observed that the Veteran experienced multiple pulmonary problems prior to diagnosis of carcinoma.  He opined that, because CT scans conducted in 1997 disclosed multiple small lung plaques, and no investigations were carried out to rule out primary carcinoma of the lung, the evidence of record was in equipoise as to whether or not the radiologic lung findings were indicative of primary carcinoma of the lung or mesothelioma of the pleura.  The physician concluded that it was as least as likely as not that asbestos-related lung disease contributed substantially and materially to the Veteran's death.

In July 2010, the Board sought a medical expert opinion.  The Board asked the expert examiner to review the 2003 and 2006 VA medical opinions and the December 2005 and July 2007 private medical opinions, and to determine whether it was at least as likely as not that the Veteran's exposure to asbestos in service was etiologically related to the primary cause of death, to a disorder underlying a primary cause of death, or to a disorder which contributed to the Veteran's death. 

The medical expert provided an October 2010 opinion stating that it was more likely than not that the Veteran had asbestosis related to his military service.  In regard to the causes of the Veteran's death, the expert stated that he died from cancer and explained that renal failure "is a very common mode of death in patient under hospice or other palliative care."  However, the expert also stated that pulmonary issues related to asbestosis probably made him more susceptible to infections from treatment, impaired his performance status (general health), and therefore contributed to his demise from malignancy.

Subsequently , the Board sought a clarifying opinion as to how significant asbestos-related disease was to the Veteran's demise.  The expert responded in January 2011 that asbestosis was among many factors that aided or lent assistance to the causes that produced the Veteran's death.  The expert further opined that asbestosis made the Veteran somewhat less capable of resisting death. 

As noted above, 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).  The Appellant contends that the Veteran experienced cancer as the result of his in-service exposure to asbestos and/or as a progression of his asbestosis.  The medical evidence of record plainly reflects that the Veteran died from kidney failure caused by metastatic neuroendocrine carcinoma.  Although the origin of the carcinoma was unknown, cancer was noted to have spread into his lungs, which are vital organs.  His lungs were already affected by asbestosis, a progressive and, eventually, debilitating condition.  38 C.F.R. § 3.312(c)(3) states that service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 

In July 2007, a private physician opined, after extensive review of the medical evidence, that it was as least as likely as not that asbestos-related lung disease contributed substantially and materially to the Veteran's death.  That opinion is supported by the October 2010 VA expert's opinion that pulmonary issues related to asbestosis probably impaired the Veteran and, as a result, contributed to his death - consistent with 38 C.F.R. § 3.312(c)(3).  Further, the expert's January 2011 addendum opinion, in part, mirrored the language of 38 C.F.R. § 3.312(c)(1), stating that asbestosis aided or lent assistance to the production of death.  

The U.S. Court of Appeals for Veterans Claims (Court) has held that medical opinions must contain not only clear conclusions, but reasoned medical explanations. Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007).  The 2007 private opinion and 2010/2011 VA expert opinions contain both - they explain that the asbestos exposures contributed to the Veteran's death because it led to lung-disease that either resulted in cancer or negatively affected his general health by co-existing with cancer.  Although the opinions differ as to whether or not asbestosis could have led to the same cancer that ultimately was the primary cause of death, both opinions reflect that asbestosis lent assistance to the production of death by affecting a vital organ. 

There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue.  Ashley v. Brown, 6 Vet.App. 52, 59 (1993); see also Massey v. Brown, 7 Vet.App. 204, 206-207 (1994).  As the claims file contains multiple medical opinions supportive of the Appellant's claim, the Board is of the opinion that, despite the opinions to the contrary, a state of relative equipoise has been reached. 

Although the medical evidence of record reflects disagreement as to whether the Veteran's asbestosis resulted in his primary cancer or simply co-existed with cancer that developed from another cause, that distinction makes no difference to the outcome of the claim.  Multiple sources of competent, probative medical evidence reflect that, at the least, asbestosis was a progressive disability affecting a vital organ and it impaired the Veteran's general health such that he was less capable of resisting death.  Since the determinative question in this matter is whether there is a nexus between the Veteran's cause of death and his in-service asbestos exposure, and the record reflects competent, persuasive evidence of such a nexus, the Board finds the evidence is in approximate balance.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The Board will therefore apply the benefit of the doubt rule and grant the claim. See Alemany v. Brown, 9 Vet.App. 518, 519 (1996); Brown v. Brown, 5 Vet.App. 413, 421 (1993).





[Continued on next page.]
ORDER

Service connection for the cause of the Veteran's death is granted.




____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs