Citation Nr: 1306755 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 08-36 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from January 1960 to December 1963 and from September 1965 to October 1981, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in relevant part, denied the benefit sought on appeal. In her October 2008 VA Form 9, the appellant indicated that she would like to be scheduled for a hearing before a member of the Board. However, before she could appear before her scheduled hearing on April 19, 2011, she contacted VA in March 2011, indicating that she could not attend her scheduled hearing. She subsequently submitted a statement dated in July 2011 indicating that she would like her claim to be forwarded in order to proceed with her appeal. Accordingly, no further action is required in this regard. The issue was remanded in April 2011 for further development. A review of his electronic ("Virtual VA") paperless claims file does not reflect additional treatment records. Instead of paper, a highly secured electronic repository is used in the Virtual VA System to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a claim for benefits. Because this appeal was processed as part of the Virtual VA system, any future consideration of the claims should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran died in July 2007 due to advanced metastatic prostate and bladder cancers. 2. The Veteran was not service connected for any disability during his lifetime. 3. The Veteran's prostate cancer was caused by herbicide exposure during his military service in the Republic of Vietnam. 4. By extending the benefit of the doubt to the appellant, the Veteran is shown to have suffered from the residuals of prostate cancer that caused or contributed materially in producing or accelerating his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death are met. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this decision, the Board grants service connection for the cause of the Veteran's death. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. II. Analysis The appellant contends that the Veteran's death was, at least in part, the result of his prostate cancer that he incurred as a result of Agent Orange (AO) exposure during his service in Vietnam. The Veteran died in July 2007, and according to an amended death certificate dated in August 2007, which was certified by Nirmal B. Singh, M.D., he died of stage IV prostate and bladder cancers. At the time of his death, the Veteran was not service connected for any disabilities. To establish service connection for the Veteran's cause of death, the evidence must show that a disability incurred in, or aggravated by service, either caused or contributed substantially or materially, to the cause of 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 of death, or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that the disability 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. Therefore, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death, or for which service connection should have been established. Service connection may be granted for a disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 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. Service connection may be also established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, as discussed below, because there is no competent evidence showing that the Veteran's MPC was manifest to a degree of 10 percent or more during the first year following separation from service in 1969, service connection on a presumptive basis is not warranted in this case. Where a Veteran served on active duty in the Republic of Vietnam during the Vietnam era and has a certain listed disability, service connection may be established on a legal "presumption based on herbicide exposure." 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Such a Veteran is presumed to have been exposed to herbicide agent (Agent Orange) during service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. Id.; McCartt v. West, 12 Vet. App. 164, 166 (1999). The Veteran served in the Republic of Vietnam from March 1966 to March 1967 and from November 1968 to July 1969, and there is no affirmative evidence in his claims file indicating that he was not exposed to herbicide agents. Therefore, he is presumed to have been exposed to such agents. 38 C.F.R. § 3.307(a)(6)(iii). Accordingly, he is entitled to the presumption of service connection based on exposure to herbicides used in Vietnam where VA has found a positive association between the condition and exposure. Under 38 C.F.R. 3.309(e), VA has determined that a positive association exists between exposure to herbicides, including Agent Orange (AO), and the subsequent development of the following conditions: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; Chronic lymphocytic leukemia; Multiple myeloma; Non-Hodgkin's lymphoma; Acute and subacute peripheral neuropathy; Porphyria cutanea tarda; Prostate cancer; Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); Leiomyosarcoma; Epithelioid leiomyosarcoma (malignant leiomyoblastoma); Rhabdomyosarcoma; Ectomesenchymoma; Angiosarcoma (hemangiosarcoma and lymphangiosarcoma); Proliferating (systemic) angioendotheliomatosis; Malignant glomus tumor; Malignant hemangiopericytoma; Synovial sarcoma (malignant synovioma); Malignant giant cell tumor of tendon sheath; Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; Malignant mesenchymoma; Malignant granular cell tumor; Alveolar soft part sarcoma; Epithelioid sarcoma; Clear cell sarcoma of tendons and aponeuroses; Extraskeletal Ewing's sarcoma; Congenital and infantile fibrosarcoma; and Malignant ganglioneuroma. VA has also determined that the following diseases are not associated with exposure to herbicide agent: Hepatobiliary cancers; Nasopharyngeal cancer; Bone and joint cancer; Breast cancer; Cancers of the female reproductive system; Urinary bladder cancer; Renal cancer; Testicular cancer; Leukemia (other than chronic lymphocytic leukemia); Abnormal sperm parameters and infertility; Parkinson's disease and parkinsonism; Chronic persistent peripheral neuropathy; Lipid and lipoprotein disorders; Gastrointestinal and digestive disease; Immune system disorders; Circulatory disorders; Respiratory disorders (other than certain respiratory cancers); Skin cancer; Cognitive and neuropsychiatric effects; Gastrointestinal tract tumors; Brain tumors; Light chain-associated amyloidosis; Endometriosis; and Adverse effects on thyroid homeostasis. 68 Fed. Reg. 27, 630 (May 20, 2003). VA has found a positive association between prostate cancer and herbicide exposure. The presumption of service connection for prostate cancer based on exposure to herbicides is warranted under 38 C.F.R. § 3.307(a). However, the presumption does not apply to bladder cancer. The appellant also asserts as a corollary argument that her husband had coronary artery disease (CAD) which was a presumptive disease due to AO that contributed to his death. (See February 2012 VA For 21-4138). In light of the full grant on the merits based on prostate cancer, the Board does not need to explore these alternate theories (i.e., CAD and bladder cancer) of service connection. The medical evidence of record reflects that the Veteran underwent a radical cystectomy to remove his bladder and prostate in August 2006. The August 2006 surgical pathology report of the Veteran's cystoprostatectomy revealed the presence of high grade urothelial carcinoma, with associated necrosis, and acinar prostatic adenocarcinoma. The pathological examination of the removed tissue reflects significant pelvic metastasis with perivesical extension into the adipose tissue beneath the area of primary bladder tumor resection adjacent to the prostate. It was noted that adenocarcinoma of the prostate itself was evident with a Gleason score of 6. Multiple nodules representing lymph nodes and/or tumors were noted within the prostate. The final diagnosis from the pathology report was multiple lymphnodes positive for metastatic carcinoma and prostatic adenocarcinoma. (See Surgical Pathology Report from Sacred Heart Hospital dated in August 2006; see also August 2006 Sacred Heart Hospital Admission History and Physical and Discharge Summary). The presumptive pathological stage for the prostate cancer was PT2a pNX pMX and the presumptive stage for the bladder cancer was pT3 pN1 pMx. (See August 2006 Pensacola Pathologists Surgical Pathology Report Sacred Heart Hospital). "T2a" means that the tumor was in half or less than half of one of the prostate glands two lobes. "Nx" means cannot evaluate the regional lymph nodes and Mx cannot evaluate distant metastasis. (See AJCC Staging Manual 6th edition (2002)). A May 2007 VA examination noted, in part, status post radical cystectomy secondary to poorly differentiated transitional cell carcinoma of the Veteran's bladder. The VA examiner stated that [i]t was more likely than not due to the different carcinoma types that the bladder cancer and prostate cancer were one in the same. And that, it would be impossible to determine the primary etiology of the prostate cancer since the Veteran has been treated for bladder cancer. He also stated that the back disability was from bone metastasis that was more likely than not caused by prostate cancer. The original death certificate dated in July 2006 stated immediate cause of death was bladder cancer stage IV. An Affidavit of Medical Amendment to Florida Certificate of Death signed August 23, 2007 noted that the immediate cause of death was prostate and bladder cancer Stage IV. The medical examiner stated that he failed to list all type of cancers the Veteran had on the original death certificate. A September 2010 VA opinion reflects that the Veteran died due to metastatic cancer; primary transitional cell cancer of the bladder with metastasis; and primary adenocarcinoma of the prostate without metastasis. The VA examiner stated that both the bladder and the prostate cancers were primary sites. Based on the pathology reports, the Veteran's prostate cancer was contained without extension, but the bladder cancer had invaded the surrounding tissues. He stated that the "kind death certificate from the private physician [was] appreciated." The facts indicate that the Veteran's demise was more likely than not caused by or related to metastatic bladder cancer rather than prostate cancer. The opinion was signed by Mary Brawn, D.O. A January 2012 written statement from Dr. Howell Martin reflects, after review of the Veteran's medical treatment records and DD Form 214, that the Veteran had primary prostate cancer that was consistent with Agent Orange exposure while stationed in Vietnam. He stated that "[t]o say that his prostate cancer was secondary to his bladder cancer would be pure speculation. I feel that it [was] as least as likely as not that his prostate cancer was the primary source and therefore contributed [to] his death." A February 2012 statement from James Smith, D.O. stated that the Veteran was under his care from July 12, 2007 until July 17, 2007 (date of death). He stated that the Veteran's hospice diagnosis was bladder cancer with metastatic disease to the spine, liver, and the lungs. He noted that further review of the records reflect that the Veteran had bladder cancer which was metastatic at the time, but also adenocarinoma of the prostate. His Gleason score at that time was 6. The Veteran underwent multiple therapies following the initiation of this diagnosis, but despite excellent aggressive care the patient progressively declined and required in patient hospice. He stated that it was his medical opinion upon review of the records that the patient, in addition to his bladder cancer which was metastatic, suffered significant morbidity and had in addition to his mortality based on the fact of a second malignant lesion in the prostate gland. There is medical nexus evidence both for and against the claim in this case. The evidence in favor of the claim consists of the May 2007 VA examiner's opinion that it was more likely than not due to the different carcinoma types that the bladder cancer and prostate cancer were one in the same. The Affidavit of Medical Amendment to Florida Certificate of Death signed August 23, 2007, which noted that the immediate cause of death was prostate and bladder cancer Stage IV. A January 2012 written statement from Dr. Howell Martin, which stated that that the Veteran had primary prostate cancer that was consistent with Agent Orange exposure while stationed in Vietnam and that the prostate cancer was the primary source that contributed to his death. The February 2012 statement from James Smith, D.O, which essentially stated that the Veteran's suffered significant morbidity and mortality from a second malignant lesion in the prostate gland. The medical evidence against the claim consists of the September 2010 VA opinion, which reflects that the Veteran died due to metastatic bladder cancer. Several considerations must be addressed in cases where there are competent but conflicting medical opinions. First, the Board may only consider independent medical evidence to support its findings and may not provide its own medical judgment in the guise of a Board opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990). The Board may, however, favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is aware that the Court has recently held that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." In this regard, the Court in Nieves did not find such a review of medical records in the claims file to be irrelevant in terms of determining the probative value of an opinion. Rather, the Court clarified that the claims file "is not a magical or talismanic set of documents, but rather a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion to assist the adjudicator in making a decision on a claim." There are other means by which a private physician can become aware of critical medical facts, notably by treating the claimant for an extended period of time. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the fact that an opinion is relatively speculative in nature also limits its probative value. For example, an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). After review of the evidence as a whole, the Board finds the medical evidence to be in relative equipoise in showing that prostate cancer was a principal cause of death. The appellant is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence (i.e. where the evidence supports the claim or is in relative equipoise, the appellant prevails). 38 U.S.C.A. 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, in resolving all reasonable doubt in favor of the appellant, service connection for the cause of the Veteran's death is granted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs