Citation Nr: 1305684 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 08-19 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1959 to January 1965. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2010, the Board remanded the case for additional development. It now returns for further appellate review. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran died in December 2005. The death certificate lists the immediate cause of death as lung cancer. 2. During his lifetime, the Veteran had not established service connection for any disability. 3. Lung cancer first manifested many years following separation from service, and the most probative evidence indicates that the Veteran's lung cancer was not related to service, to include asbestos exposure during service. 4. A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence she is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, in a July 2006 letter issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate her claim, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The letter also advised the appellant to submit medical evidence showing a reasonable probability that the condition that contributed to the Veteran's death was caused by injury or disease that began in service. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Moreover, the appellant's notice of disagreement dated September 2007 reflects her actual knowledge of the elements necessary to substantiate her claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (holding that where the appellant demonstrates awareness of the information and evidence necessary to establish entitlement to her claim, the appellant was not prejudiced by VA's failure to satisfy the duty to notify prior to the initial adjudication). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, private treatment records, and lay statements. Pursuant to the June 2010 remand directives, in May 2012 the RO/AMC sent a letter to the appellant asking that she provide the Veteran's post-service occupational history and clarify whether she desired a hearing. The appellant did not respond to the letter. She has not identified any additional outstanding records that have not been requested or obtained. Also pursuant to the remand directives, in October 2012 the RO/AMC obtained a medical opinion from a VA oncologist addressing whether the cause of death was related to service. The Board finds that such opinion is adequate to decide the issue as it is predicated on a thorough review of the claims file. The opinion considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that there has been substantial compliance with the June 2010 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (where there is substantial compliance with the Board's remand instructions a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998)). The appellant was an active participant in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the appellant. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The appellant contends that service connection is warranted for the cause of the Veteran's death. Specifically, she alleges the Veteran's exposure to asbestos during service contributed to the lung cancer that caused his death. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability is considered the "principal" (primary) 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). A "contributory" cause of death is inherently one not related to the principal cause. Id. § 3.312(c). A contributory cause must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The record shows that the Veteran performed air conditioning, heating, refrigeration, and boiler work on board the U.S.S. Sperry in the early 1960s. In its November 2006 rating decision, the RO conceded that the Veteran was exposed to asbestos in service. The Board notes that the record indicates the Veteran may have been exposed to asbestos after service as well, but the appellant did not respond to the request in May 2012 for information concerning the Veteran's post-service occupational history. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran died in December 2005, 40 years after his military service. The death certificate lists only one cause of death: lung cancer. No complaint, diagnosis or treatment for a chronic lung disorder or lung cancer is shown in the service treatment records. The first evidence in the record of lung cancer is in August 2004, when the Veteran was diagnosed by a private physician, Dr. Q, with locally advanced non-small cell carcinoma of the left lung invading into the mediastinum. In his consultation report diagnosing the Veteran, Dr. Q. noted that the Veteran had a "significant" 40 pack-year smoking history but that he had quit 15 years prior. The Veteran reported former employment as an air conditioner maintenance worker and noted possible exposure to asbestos. A CT scan dated August 2004 that helped diagnose the carcinoma included a comment that scattered pleural plaques were present "from prior asbestos exposure." The CT scan comments also included mild patchy obstructive change in the left lung, a 9mm nodule in the lingula possibly representing a metastasis, patchy nodular density at the left apex possibly representing another primary carcinoma of the lung, small left pleural effusion that was probably malignant, several pretracheal nodes that might represent metastatic tumor, and large mass in the left mainstem bronchus believed to be a primary lung carcinoma obstructing the esophagus. Private treatment records show continued diagnosis of and treatment for metastatic non-small cell lung cancer until the Veteran's death. The medical evidence attributes the Veteran's death to lung cancer. Thus, the remaining question is whether the cancer was related to the Veteran's service. In a letter dated February 2006, private physician Dr. E., an assistant professor of medicine in the hematology and oncology, attested that the Veteran was under her care for the treatment and management of his lung cancer from September 2004 until he died from that disease. She stated that the Veteran's military service "exposed him to asbestos, which is a known risk factor for lung cancer. Therefore, it's possible that this could have contributed to his disease." A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Dr. E.'s statement that the contribution was "possible" is speculative and equivocal and the Board cannot accord it any probative weight. See also Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The October 2012 VA medical opinion provided by an oncologist/hematologist reflects a thorough review of the claims file. The examiner noted the Veteran's history of asbestos exposure, his 40 pack-years of smoking, and the trajectory of his lung cancer as documented by his private treatment records. The examiner concluded that it is less likely than not that in-service exposure to asbestos contributed to the development of the Veteran's lung cancer. The examiner provided a rationale for his opinion, stating that the association of asbestos with lung cancer is overestimated and causes less than a two-fold increase in risk. However, former smoking status alone increases the risk of mortality from lung cancer by 3.8, and former smokers have a nine-fold increase in lung cancer as compared with men who had never smoked. He stated that adenocarcinoma is the most common type of lung cancer in smokers. The examiner provided citations to treatise evidence for all of these statistics. Medical articles and treatises can provide important support when combined with an opinion of a medical professional. Sacks v. West, 11 Vet. App. 314, 317 (1998). The Board finds that the VA examiner's opinion is highly probative, as it provides a clear conclusion with supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez, supra; Stefl, supra. The appellant asserted in her notice of disagreement dated September 2007 that "it is well established epidemiologically that exposure to asbestos, even in very small amounts, increases risk for the development of this form of cancer." She provided citations to treatise evidence, namely articles from scientific journals and books, generally addressing the connection between asbestos exposure and cancer. However, this evidence is general in nature and has not been specifically related to the Veteran by a medical professional. See Sacks, supra. In this case, the probative opinion of the VA examiner discusses the proposition set forth by the appellant's treatise evidence, but concludes that given the facts of this case, it is less likely than not that the Veteran's asbestos exposure contributed to his lung cancer. As the treatise information provided by the appellant is not specific to the facts of this Veteran's case, the Board affords this evidence no probative weight. The Board acknowledges the appellant's contentions that the Veteran's lung cancer is related to the Veteran's asbestos exposure during service. However, the appellant has not shown that she has specialized training sufficient to identify the medical condition of lung cancer, as that determination requires expertise in administering and interpreting diagnostic tests. Similarly, she has not shown that she has specialized medical training sufficient to determine that the Veteran's lung cancer was caused by exposure to asbestos in service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) ((noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, her lay opinion as to the etiology of the Veteran's lung cancer is significantly less probative than the opinion of the VA oncologist. In summary, there is no competent evidence showing lung cancer during the Veteran's service or for many years thereafter, and the most probative evidence is against a finding that the Veteran's lung cancer is related to his asbestos exposure during service. As there is no competent and probative evidence linking the Veteran's lung cancer to service, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs