Citation Nr: 1302806 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 11-03 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1957. He also had service in the Naval Reserve prior to and after his period of active duty. He died in April 2008 and the appellant is advancing her claim as the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) that denied entitlement to service connection for the cause of the Veteran's death. The appellant filed notice of disagreement in May 2009. A statement of the case was issued in January 2011, and the appellant perfected her appeal in February 2011. In her substantive appeal, the appellant requested a videoconference hearing before the Board. In May 2011 she withdrew the request for a Board hearing and requested a hearing before a decision review officer (DRO). In July 2012 she withdrew her request for a hearing before a DRO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's death certificate lists the cause of death as cardiogenic shock due to acute myocardial infarction, with metastatic non-small cell lung carcinoma. 2. At the time of the Veteran's death in April 2008, service connection was not in effect for any disability. 3. Available records do not show that the Veteran was exposed to ionizing radiation during his active duty service. 4. The Veteran did not have lung cancer related to asbestos exposure during active duty service. 5. Disorders of the heart and respiratory system were not manifested during the Veteran's active duty service or within one year of discharge from service, nor were disorders of the heart and respiratory system otherwise related to the Veteran's service. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed to by, a disability incurred in or aggravated by his active duty service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Duties to Notify and to Assist Under the VCAA, codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA describes VA's duties to notify and assist claimants 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 and 3.326(a). In correspondence dated in July 2008 prior to initial adjudication, VA satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The appellant was notified of information and evidence necessary to substantiate her claim for service connection for cause of death. She was notified of the information and evidence that VA would seek to provide and the information and evidence that she was expected to provide. The appellant was not notified in this letter of the laws regarding degrees of disability or effective dates for a grant of service connection as required by Dingess, 19 Vet. App. 473. A disability rating or effective date for an award of benefits will not be assigned in this instance as the claim for service connection for the cause of the Veteran's death will be denied in the decision below. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, 38 U.S.C.A. § 5103(a) notice must be tailored to the claim. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds sub nom, Hupp v. Shinseki, 329 Fed Appx. 277 (Fed. Cir. May 19, 2009). The notice should include: (1) A statement of the conditions, if any, for which a Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp, 21 Vet. App at 352-353. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed application of the specific reasons why any claim made during the deceased Veteran's lifetime was not granted. Id at 353. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Id. Here, there being no disability for which service connection was in effect at the time of the Veterans death, and the July 2008 notice letter otherwise included an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected, the Board concludes that the appellant was provided the notice required under Hupp, and that the duty to notify has been met. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. 5103A (West 2002). In DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the duty to obtain a medical opinion under 38 U.S.C.A. § 5103(d) is inapplicable to DIC claims because the provision specifically states it is only for "disability compensation." Another case, Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), clarified DeLaRosa, indicating that while § 5103(d) is inapplicable to DIC claims, the provision of § 5103A(a)(1) still requires VA to make "reasonable efforts" to provide assistance, to include obtaining a medical opinion. VA is excused from this obligation only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. § 5103A(a)(2). The above notwithstanding, a medical opinion was obtained in December 2010. The Board notes that a medical nexus opinion was sought (December 2010) for the purpose of determining whether the Veteran's lung cancer was a result of asbestos exposure during active duty service. Furthermore, in October 2012 the Board obtained a medical advisory opinion on the question of whether it is at least as likely as not that the Veteran's lung cancer was causally related to exposure to radar during his active duty service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, VA has obtained service medical records and the Veteran's death certificate, assisted the appellant in obtaining evidence, and afforded her the opportunity to give testimony before the Board at a hearing, from which she withdrew. In addition, the Board has reviewed the Veteran's Virtual VA electronic record, which contained no evidence of probative value to the issue under consideration. VA determined that Naval Reserve service treatment records prior to and after the Veteran's active duty period were unavailable. All procedures to obtain such records were correctly followed. No additional pertinent evidence has been identified by the claimant as relevant to this appeal, and the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case. See generally 38 C.F.R. § 3.159(c)(4). Under these circumstances, no further action is necessary to assist the claimant with this appeal. Legal Criteria, Factual Background and Analysis The appellant contends that the Veteran's death was related to his active duty service in the Navy while he spent time on the U.S.S. Albany and was exposed to radiation on a regular basis as a radar man. Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, cancer and cardiovascular disease are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). Applicable law provides that a disease associated with exposure to radiation listed in 38 C.F.R. § 3.309(d) will be considered to have been incurred in service under the circumstances outlined in that section. Specifically, if a Veteran, while on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity, as defined by regulation, the following diseases shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied: Leukemia (other than chronic lymphocytic leukemia); cancers of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile ducts, gall bladder, salivary gland and urinary tract; multiple myeloma; lymphomas (except Hodgkin's disease); and primary liver cancer (except if cirrhosis or hepatitis B is indicated). 38 C.F.R. § 3.309(d). Effective March 26, 2002, cancers of the bone, brain, colon, lung, and ovary were added to the list of diseases specific to radiation-exposed Veterans set forth at 38 C.F.R. § 3.309(d). See 67 Fed. Reg. 3612-16 (Jan. 25, 2002). The term "radiation-exposed Veteran" includes a Veteran who while serving on active duty participated in a "radiation-risk activity." 38 U.S.C.A. § 1112; 38 C.F.R. § 3.309(d). A "radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan, or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945, through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(ii). In this case, it is not shown or contended that the Veteran participated in a radiation risk activity; as such, the provisions of 38 C.F.R. § 3.309(d) do not apply in this case. Service connection may also be considered based on exposure to ionizing radiation under the provisions of 38 C.F.R. § 3.311. To consider service connection under section 3.311, the evidence must show the following: (1) the Veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulations. 38 U.S.C.A. § 501; 38 C.F.R. § 3.311(b). This section does not provide presumptive service connection for radiogenic diseases, but only outlines a procedure to be followed for adjudication purposes. Medical opinions are ultimately the criteria upon which service connection rests under this regulation. For the purposes of 38 C.F.R. § 3.311, radiogenic disease means a disease that may be induced by ionizing radiation and shall include the following: All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; cancer of the thyroid, breast, lung, bone, liver, skin, esophagus, stomach, colon, pancreas, kidney, urinary bladder, salivary gland, and ovary; multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease; parathyroid adenoma; tumors of the brain and central nervous system; cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer; and any other cancer. 38 C.F.R. § 3.311(b)(2) . As the Veteran died from a radiogenic disease and as the appellant contends that such disease resulted from radiation exposure, VA requested National Personnel Records Center (NPRC) furnish documents or information of the Veteran's exposure to radiation. NPRC responded that such document or information was not a matter of record. The service records obtained and associated with the claims file do not show the Veteran was occupationally exposed to ionizing radiation during his period of active duty service or other Naval Reserve service. However, since the appellant asserts that the Veteran was exposed to radiation while serving as a radar man in service, the Board (in September 2012) requested a medical advisory opinion on the question of whether it is at least as likely as not (50% or higher degree of probability) that the Veteran's lung cancer was causally related to exposure to radar during his active duty service (for purposes of the opinion, radar exposure was to be assumed). In an October 2012 VA medical advisory opinion, Dr, S.E.G., opined that it is less likely than not (less than a 50% probability) that the Veteran's lung cancer was caused by or related to his exposure to radar while in the Navy. Dr. S.E.G. described the radar to which the Veteran was allegedly exposed to in service as non-ionizing radiation and considered the question of whether non-ionizing radiation (such as that which is present in radar waves) has a significant possibility of causing cancer. He cited to various studies on the issue and stated that the prevailing thought has been that non-ionizing radiation is safe, and does not contribute to the development of cancer or other significant disease. In summary he noted that there seemed to be little evidence that exposure to radiation of the type commonly seen in radar use causes a significant increase in the risk of lung cancer. He stated, on the other hand, tobacco use clearly increases the risk of lung cancer (the evidence shows that the Veteran had a history of smoking 3 packs of cigarettes a day for 43 years; he stopped smoking in 2001). Dr. S.E.G. referenced a 1964 Surgeon General's report that stated that a male smoker has 9 times the risk of developing lung cancer as a man who never smoked. Further, he stated that given this, it is obvious that any questionable effect that radar exposure might have had on the development of the Veteran's lung cancer was overwhelmed by the proven effects of his cigarette smoking. Therefore, it is less likely than not that the Veteran's lung cancer was caused by or related to radar exposure. The Board finds the opinion of Dr. S.E.G. adequate with respect to the issue of whether the lung cancer, which contributed to the Veteran's death, was the result of exposure to radar during active duty service. His opinion was documented to have been preceded by a review of the claims file to include service treatment records, and military personnel records. He was familiar with the Veteran's medical history contained in the claims file. He made specific reference to medical treatises, thus providing a basis for his opinion. The Board finds the opinion of Dr. S.E.G. highly persuasive. Furthermore, there is no medical opinion or evidence of record contrary to the October 2012 opinion. Based on the totality of the record, the Board is compelled to conclude that the preponderance of the evidence is against a finding that the disabilities that caused or contributed to the Veteran's death were related to radar exposure during active duty. The appellant's contentions that the Veteran was exposed to radiation that caused lung cancer, while serving as a radar man, are simply not supported by any evidence of record, and essentially fall into the realm of speculation. Moreover, to the extent that her lay statements are submitted as evidence that the Veteran was exposed to radiation by virtue of his occupation as a radar man and therefore, such exposure caused his cancer, the Board notes that where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. The evidence does not reflect that the appellant possesses a recognized degree of medical knowledge that would render her opinion on medical diagnosis or causation competent. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, the RO considered service connection for lung cancer as due to asbestos exposure since the Veteran served aboard a World War II era ship, known to be insulated with asbestos. The RO determined that there was minimal likelihood that the Veteran's position as radar man exposed him to asbestos. In December 2010 the RO sought a medical opinion on the question of whether it is at least as likely as not that the Veteran's lung cancer was caused by or was related to asbestos exposure. The examiner noted review of the claims file, service treatment records and military personnel records. He opined that it was less likely as not (less than 50/50 probability) that the Veteran's lung cancer was caused by or was related to asbestos exposure. His rationale was that there are many risk factors for lung cancer, two of which are smoking and occupational asbestos exposure. He noted that the Veteran had a known history of smoking up to three packs a day for over forty years. His asbestos exposure likelihood was less than one year while aboard a ship in the Navy. He further noted that the relative risk of developing lung cancer in a person exposed to occupational asbestos is thought to be somewhere between 2 and 5. The relative risk of developing lung cancer in a smoker is estimated to be significantly more than that, but as low as 9 in a person who quit smoking several years before the onset of cancer (as did the Veteran). Most likely, the Veteran had cancer for a significant time before the diagnosis since there is always a period of time when cancer is undetectable, which may be months to years. The Veteran had a known exposure for 40 years to heavy smoking, and a conceded exposure to asbestos for two years from 1955 to 1957 of an unknown level but a "minimal likelihood" level of exposure for part of those two years. There was no known occupational or other exposure to asbestos that was ongoing before 1955 or after 1957. The examiner estimated that the Veteran's risk based on current knowledge of risk factors was greater in regards to his smoking history as compared to his asbestos exposure history. Based on the foregoing, the examiner opined that it is less likely as not that the Veteran's lung cancer was caused by asbestos exposure. The Board finds the VA medical opinion is adequate with respect to the issue of whether the lung cancer, which contributed to the Veteran's death, was the result of exposure to asbestos during active duty service. The opinion by a VA physician was documented to have been preceded by a review of the claims file to include service treatment records, and military personnel records. He was familiar with the Veteran's medical history contained in the claims file. He made specific reference to medical treatises, thus providing a basis for his opinion. The Board finds this opinion highly persuasive. Furthermore, there is no medical opinion or evidence of record contrary to the December 2010 opinion. Based on the totality of the record, the Board is compelled to conclude that the preponderance of the evidence is against a finding that the disabilities that caused or contributed to the Veteran's death were related to asbestos exposure during active duty. The Board has otherwise reviewed this claim to determine whether the Veteran's cause of death is etiologically related to his period of active duty service. The Board notes that the Veteran was not service-connected for any disability during his lifetime. The death certificate list the Veteran's immediate cause of death as cardiogenic shock, due to acute myocardial infarction. Metastatic non-small cell lung carcinoma was listed as other significant conditions contributing to death but not resulting in the underlying cause of death. The record reveals that there is no evidence of disability related to the heart or respiratory system during active duty service or for many years thereafter. Available service treatment records do not reflect any such diagnoses of disability related to the heart or respiratory system. Post service treatment records show diagnoses of lung cancer and COPD in 2006. None of the service medical record includes any comments or opinions suggesting any link between the Veteran's disabilities that caused or contributed to his death and his period of active duty service. The Veteran died in April 2008, over 47 years after separation from service. As noted, diagnoses of lung cancer and COPD were rendered decades after separation from service. Evidence of a prolonged period without medical complaint can be considered as a factor, along with other factors concerning the Veteran's health and medical treatment during and after military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Circ. 2000). The Board has no doubt that the appellant is sincere in her belief that the disability that caused or contributed to the Veteran's death was related to his period of service, to include exposure to ionizing radiation in service. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d 1272. However, all conditions are not amenable to lay diagnosis. The question of whether the Veteran's cause of death is due to exposure to radiation in service is a question too complex to be addressed by other than medical evidence. Hence, any assertions in that regard made by the appellant are not competent evidence. As the condition which caused or contributed to the Veteran's death was not shown in service, and the records contain no suggestion of a causal link between his death and active service or any service-connected disabilities, the Board finds that the preponderance of the evidence is against the appellant's claim of service connection for the cause of the Veteran's death ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs