Citation Nr: 1308529	
Decision Date: 03/13/13    Archive Date: 03/20/13

DOCKET NO. 09-17 125	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

C. Bruce, Counsel



INTRODUCTION

The Veteran served on active duty from September 1951 to September 1955. He died in 2006. The appellant is the Veteran's surviving spouse.

This matter was last before the Board of Veterans' Appeals (Board) in October 2011 on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board remanded the claim for additional development in February 2006, and requested a Veterans' Health Administration (VHA) opinion from a pulmonary specialist in November 2012. The issue is now ready for appellate review.

The appellant failed to appear for a scheduled Travel Board hearing in July 2011 without explanation. Accordingly, the appellant's request for a hearing is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). 

The Virtual VA paperless claims processing system was reviewed.


FINDINGS OF FACT

1. The Veteran died due to respiratory failure, due to pneumonia, due to lung cancer, due to chronic obstructive pulmonary disease (COPD).

2. At the time of the Veteran's death, the Veteran did not have any service-connected disabilities..

3. A service-connected disability was not the immediate or underlying cause of death, or etiologically related thereto, and did not contribute substantially or materially to the death, aid or lend assistance to the production thereof, or combine to cause it.

CONCLUSION OF LAW

The criteria for entitlement to service connection for the cause of the Veteran's death are not met or approximated. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. 
§ 3.312 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her 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 analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the issues on appeal. 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).

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. See 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). The third step of this inquiry requires the Board to weigh 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(a). 





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, supra., (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). 

Jandreau also held that 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)). 

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 must then weigh 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. 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"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).
Duties to Assist and Notify

Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).

Additional notice requirements apply in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of a veteran's death. In such a case, VA must provide a claimant: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her 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 v. Nicholson, 21 Vet. App. 342 (2007).




The RO provided the appellant Hupp-compliant VCAA notice by a letter dated in October 2011. The RO notified the appellant of the evidence needed to substantiate her claim, whether based on a service-connected or nonservice-connected disability, identified the type of evidence that would best do so, notified her of VA's duty to assist and indicated that it was developing her claim pursuant to that duty. The RO also identified all of the conditions for which the Veteran was in receipt of service connection at the time of his death. The RO listed the evidence it had received in support of the appellant's claim and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the appellant in obtaining all other outstanding evidence provided she identified its source(s). The RO also noted that it was the appellant's ultimate responsibility to ensure VA's receipt of all pertinent evidence.

Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). In this case, the RO sent the VCAA notice letter after initially deciding the appellant's claim; they are thus untimely. The RO cured this timing defect later, however, by readjudicating the appellant's claim in a supplemental statement of the case issued in July 2012. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

VA also must assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).

The RO made reasonable efforts to identify and obtain relevant records in support of the appellant's claim. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). The RO secured and associated with the claims file all evidence the appellant identified as being pertinent to her claim, including post-service VA treatment records. The RO also obtained two medical opinions in support of her claim, based on the appellant's contentions and the evidence of record. 

The Merits of the Appeal

To establish service connection for the cause of a Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312.

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 causally shared in producing death, but it must be shown that there was a causal connection. Id.

The standards and criteria for determining whether or not a disability is service-connected for purposes of 38 U.S.C.A.§ 1310 are the same as those applicable under 38 U.S.C.A. chapter 11. 38 U.S.C.A. § 1310(a).

At 38 U.S.C.A. chapter 11, it is provided that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection may 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).

Service-connected diseases or injures 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. See 38 C.F.R. § 3.312(c)(3).

The Veteran died in mid-2006. He was 73 years old. The Veteran died at a VA Medical Center while in palliative care. The death certificate lists the immediate cause of death as respiratory failure, due to pneumonia, due to lung cancer, due to chronic obstructive pulmonary disease (COPD). No contributory cause of death was listed. An autopsy was performed upon request by the Veteran's family. 

At the time of his death, the Veteran did not have any service-connected disabilities. 

The appellant contends that the respiratory causes of the Veteran's death (respiratory failure, pneumonia, lung cancer, and COPD), are the result of his in-service exposure to asbestos. She believes the Veteran was exposed to asbestos while serving in the Navy as a molder in a foundry, which included service at a ship repair facility in Guam. She argues that his military occupational specialty (MOS) as a molder in a foundry exposed him to other harmful elements (aside from asbestos) that caused or contributed to his respiratory causes of death. See April 2007 cause of death claim; May 2009 VA Form 9; November 2005 and April 2010 representative statements.

The preponderance of the evidence is against the claim, and the appeal will be denied. 

Service treatment records (STRs) dated from 1951 to 1955 are negative for any complaint, treatment, or diagnosis of a respiratory condition. Moreover, in-service chest X-rays dated in October 1951, July 1954, July 1955, and September 1955 are negative for any lung abnormality. The Veteran's September 1955 discharge examination reveals a normal chest and lungs. 



Service personnel records (SPRs) confirm the Veteran's MOS as a molder in a naval foundry. The Department of the Navy has confirmed that molders were exposed to asbestos during service as part of their duties. 

However, the question remains whether the confirmed in-service asbestos-exposure resulted in a subsequent respiratory disability, leading to the Veteran's eventual death.

Post-service, a July 1986 Occupational Pneumoconiosis Board diagnosed the Veteran with occupational pneumoconiosis. The Occupational Board found that the Veteran's 18 year history working as a coal miner post-service either caused occupational pneumoconiosis or aggravated a preexisting occupational pneumoconiosis. X-ray findings at that time revealed a fine irregular-type nodular fibrosis, resulting in occupational pneumoconiosis. At the time of this finding, the Veteran had reported symptoms of shortness of breath and a chronic cough productive of dark grey sputum since approximately 1980. No mention was made in this report of the effects of in-service asbestos exposure or in-service work as a molder.

Post-service, VA treatment records beginning in September 2003 noted that the Veteran was undergoing radiation treatment for lung cancer. A November 2003 computed tomography (CT) scan of the chest revealed "radiation fibrosis," status post radiation therapy. VA treatment records dated from 2004 to 2006 also assessed pneumonia, COPD, and right lung cancer. An August 2005 VA oncology nurse assessment recorded that the Veteran had quit smoking in 1983, but that his wife still smoked in his presence. The Veteran's respiratory condition gradually worsened until he died in 2006. 

The autopsy report performed immediately after the Veteran's death noted emphysema, fibrosis, and a small nodule of poorly differentiated carcinoma in the right lung. In the left lung, emphysema, fibrosis, and a small nodule of poorly differentiated carcinoma, probably squamous cell in origin was diagnosed. The autopsy physicians opined there was "no evidence of black lung disease in either lung." The autopsy report added that "[d]igestion for asbestosis from both lungs reveal a total of one asbestos body indicating no evidence of asbestosis or asbestos-related disease." 

A VHA opinion was obtained in November 2012 to consider the above and answer the following questions:

1) Are any of the causes of the Veteran's death (respiratory failure, pneumonia, lung cancer, and COPD) related to the Veteran's confirmed in-service asbestos exposure?

2) Are any of the causes of the Veteran's death (respiratory failure, pneumonia, lung cancer, and COPD) related to the Veteran's in-service exposure to other harmful elements (aside from asbestos) from his duties as a molder in a naval foundry?

The Veteran's claims file was reviewed by a pulmonary specialist who considered all of the above and determined that none of the Veteran's causes of death, to include respiratory failure, pneumonia, lung cancer, and COPD, were related to in-service asbestos exposure or any other harmful elements from his duties as molder in a naval foundry. 

The specialist's opinion is factually informed, medically based, and responsive to the Board's inquiry. Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008), Stefl v. Nicholson, 21 Vet. App. 120 (2007); Guerrieri v. Brown, 4 Vet.App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). 

The examiner stated that his opinion was based primarily on the June 2006 autopsy which showed no evidence of black lung disease or asbestos exposure in either lung. He noted that the right lung showed no residual tumor following having been treated with radiation for squamous cell lung cancer, a well known cause of localized lung fibrosis. The left lung showed a small focus of poorly differentiated lung cancer. Both lungs showed emphysema and fibrosis. Smoking most commonly causes emphysema, chronic bronchitis, and in the late stages, fibrosis. The pathologist commented in the autopsy report that "much of the lung appears to be end-stage lung disease." 

The examiner then noted that silico-siderotic nodules, pleural plaques and pleural calcifications were absent which is undisputable medical evidence against (emphasis added by examiner) clinically significant exposure to silica particles released from molds used in the naval foundry and asbestos he used during his naval duties. As support for this reasoning, the examiner observed that asbestos blankets, clothing and shields are commonly used to protect workers from the very high temperatures of molten metals that are cast in the foundries.

The examiner further noted that the description of lung digestion studies that found "one asbestos body" further supported the argument that the Veteran's exposure to asbestos was clinically insignificant (emphasis by examiner). The clinical records covered the period from April 2004 to his death in 2006 and were focused on his lung cancer and other medical problems, such as chronic pain syndrome from lumbar and cervical degenerative arthritis. 

The examiner also explained that the autopsy findings were different from the findings of the 1986 Occupational Pneumoconiosis Board because of 1) the non-specific response of lung tissues (pneumonia, fibrosis, scaring, emphysematous digestion) to insults such as infection, cigarette smoke, toxic particulates in polluted air, certain medications and radiation therapy; and 2) the limited capabilities of radiographic tests 26 years ago. The specialist-examiner noted that chest structures (e.g., brawny muscles, large breasts and fat as previous examiners noted the Veteran was obese) increase the radiographic density of the lung tissues that may be interpreted as "lung fibrosis," "pneumonia," and "congestive heart failure." The specialist-examiner noted that while today's high resolution chest CT scans provide "breath-taking detail," but are still interpreted by the presence or absence of associated findings such as pleural plaques and clinical factors such as exposure history and clinical examination. 

In evaluating the appellant's claim, the Board primarily relied on a thorough file review and the reasoned opinion provided by the November 2012 VHA pulmonary specialist. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (the Board must rely on an informed medical opinion in order to adjudicate a claim); Prejean v. West, 13 Vet.App. 444, 448 (2000) (recognizing the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The Board must assess the credibility and weight to be attached to a medical opinion. Guerrieri, 4 Vet. App. at 470-71. The pulmonary specialist's opinion is determined to be probative.

The examiner thoroughly reviewed the file and noted that the absence of silico-siderotic nodules, pleural plaques and pleural calcifications served as "undisputable medical evidence against" clinically significant exposure to silica particles released from molds used in the naval foundry and asbestos he used during his naval duties.
The VHA examiner also noted the Veteran's post service occupational exposure as well as his smoking, both of which were more likely causes of the respiratory disorders that led to the Veteran's death. 


There is no medical nexus evidence associated with the record in favor of the claim. While in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Court held that a medical opinion is not required to prove a nexus exists for a veteran's cause of death, it has also held that lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). 

The appellant's statements have been considered. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, she is a layperson, who, generally, is incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). The appellant has not indicated that she possesses any medical training rendering her competent to opine as to whether the Veteran's in-service exposures either to asbestos or to other harmful elements associated with work in a foundry could lead to the respiratory disorders that caused the Veteran's death. That type of opinion must be based on competent medical evidence. See Routen, supra. While she contends that his in-service exposures affected his lungs leading to the various respiratory disorder, the claims file reflects no probative evidence that the Veteran's respiratory disorders that caused his death were the result of asbestos exposure or to any of the harmful elements that the Veteran would have been exposed to working in a foundry.

The Board finds that a service-connected disability was not the immediate or underlying cause of death, or etiologically related thereto, and did not contribute substantially or materially to the death, aid or lend assistance to its production, or combine to cause it. In light of this finding, the Board concludes that the criteria for entitlement to service connection for the cause of the Veteran's death are not met.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the evidence is not in relative equipoise. Rather, as a preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application and the claim must be denied.


ORDER

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



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs