Citation Nr: 1308760 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 08-36 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from August 1980 to August 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the benefits sought on appeal. During the current appeal, and specifically in November 2012, the appellant testified at a hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107 (c) (West 2002 & Supp. 2012). A transcript of the testimony has been associated with the Veteran's claims file. Lastly, the appellant submitted additional pertinent evidence to the Board after the appeal was certified to the Board. The submission of such evidence was accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. The Veteran's death certificate shows that he died in July 2006 and that the immediate cause of his demise was metastatic colon cancer. 3. At the time of the Veteran's death, service connection had been established for tinnitus (10 percent disabling); cystic acne, hydradenitis suppurativa, moles, onychomycosis, pseudofolliculitis barbae and tinea pedis (10 percent disabling); right ankle strain (10 percent disabling); mitral valve prolapse (10 percent disabling); scar, right axilla, (rated as noncompensably disabling); and residuals of fractured left distal fibula (rated as noncompensably disabling). 4. Resolving all doubt in the appellant's favor, metastatic colon cancer had its onset during the Veteran's active duty. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the cause of the Veteran's death has been associated with his active duty. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant is seeking service connection for the cause of the veteran's death. The Board concludes that the duties to notify and assist do not preclude the Board from adjudicating this portion of the appellant's claim. This is so because the Board is taking action favorable to the appellant by granting service connection the cause of the veteran's death. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Service connection may also be granted for any injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the injury was incurred in service. 38 C.F.R. § 3.303(d). The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly 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 one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service-connected disabilities 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 was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for the cause of the Veteran's death is warranted. A certificate of death indicates that the Veteran died in July 2006. The immediate cause of his death was metastatic colon cancer. As the time of his death, the Veteran was service-connected for tinnitus (10%); cystic acne, hydradenitis suppurativa, moles, onychomycosis, pseudofolliculitis barbae, and tinea pedis (10%); right ankle strain (10%), mitral valve prolapse (10%), scar, right axilla (0%), and residuals, fractured left distal fibula (0%). The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis related to metastatic colon cancer. In an undated Occupational Profile form, the Veteran indicated that he was exposed to different types of solvents, paints and radiation while working as a Nuclear Weapons specialist. The Veteran's personnel records reflect that his primary specialty was that of Nuclear Weapons Craftsman, and among his responsibilities, his central duties focused on managing the maintenance, inspection, storage, handling, modification, accountability and repair of nuclear weapons, weapon components, associated equipment, and general or specialized test and handling equipment. In response to the RO's request for radiation risk activity, an April 2012 Memorandum from the Department of the Air Force indicated that the occupational radiation monitoring records in the USAF Master Radiation Exposure Registry (MRER) had been queried, and the radiation exposure data revealed that the Veteran's total effective dose equivalent (TEDE), or the sum of external and internal dose, was recorded as 0.000 rem. It was further noted that a subsequent inquiry was sent to the Air Force Safety Center (AFSC) requesting any information regarding the Veteran's radiation exposure history. After reviewing the Veteran's official personnel records from the National Personnel Records Center (NPRC), the AFSC determined that the Veteran had the potential to be exposed to ionizing radiation as a result of his duties as a nuclear weapons maintenance specialist. Based on this potential, the AFSC provided an estimated maximum TEDE, or sum of external and internal dose for the Veteran, of approximately 2.56 rem. A review of the post-service medical evidence of record reflects that the Veteran underwent a biopsy of his colon in September 2004, the results of which revealed tubular adenoma and well-differentiated colorectal adenocarcinoma. See September 2004 Surgical Pathology report. The Veteran was diagnosed with metastatic colon cancer, and subsequently underwent an exploratory laparotomy with left colon and sigmoid colon resection and colorectal anastamosis with liver biopsy in October 2004. Results from the segmental resection of the left colon recovered a moderately well-differentiated adenocarcinoma extending through the muscularis propria into the pericolic fat, and three regional lymph nodes which were positive for metastatis disease. Results from the liver biopsy also showed metastatic adenocarcinoma, consistent with a colorectal primary. See October 2004 Pathology report. Post-operative records issued at Virginia Oncology Associates, and dated from November 2004 to June 2006, reflect that the Veteran was seen on a routine basis for follow-up treatment and care for his condition. These records indicate that the Veteran was placed on a specific chemotherapy regimen, which was carried out through September 2005, and reflected a stable disease and an intermittent rise of the carcinoembryonic antigen (CEA). In November 2005, the Veteran was placed on another chemotherapy regimen, but a January 2006 follow-up treatment visit showed that the disease had progressed with new lesions appearing in the liver and lungs. In April 2006, the Veteran was referred to a surgical oncologist, R.H., M.D., to determine whether he qualified for a hepatic artery infusion pump. Dr. R.H. reviewed the Veteran's medical history and noted that the Veteran underwent a computed tomography (CT)/positron emission tomography (PET) scan in March 2006, the results of which revealed extensive large hypermetabolic masses throughout the right and left lobes of the liver, an "extensive confluent tumor throughout the right hepatic lobe," and "enlarging hypermetabolic lymph nodes about the celiac axis and in the region of the portal caval lymph nodes consistent with metastatic involvement. The CT/PET scan results also identified "multiple small pulmonary modules...in both lungs, with a large peritoneal mass..in the left abdomen anterior to the psoas muscle." Based on his evaluation of the Veteran, Dr. R.H. diagnosed the Veteran with stage IV carcinoma of the left colon with progression of disease and marked high volume of extrahepatic disease. In a letter to the Veteran's treating physician, J.K., M.D., Dr. R.H., indicated that a hepatic artery infusion pump would not be in the Veteran's best interest due to his "large volume of extrahepatic disease. . . ." In a December 2012 memorandum, the Veteran's treating physician for the period from September 2004 to mid-November 2004, R.M., M.D., recounted the Veteran's medical history and noted that he was the one who discovered the Veteran's cancerous colon during a September 2004 colonoscopy. According to Dr. R.M., further workup to include CT imaging revealed that the Veteran's disease had metastasized to his liver. Dr. R.M. noted that while the Veteran's post-operative recovery was good, his cancer was incurable, and he passed away from associated complications of metastatic colon cancer in July 2006. According to Dr. R.M., the Veteran's disease was advanced when it was discovered and "the cancer discovered in the colon had been present for at least five years, likely longer, prior to discovery in Sept 2004." In his rationale, Dr. R.M. explained the working paradigm for colorectal cancer pathology, and noted that "colon cancers almost always arise from a pre-existing adenomatous polyp - a subset of which goes on to subsequently develop into a malignancy." According to Dr. R.M., an interval of five to ten years is usually noted for a malignancy to develop from a pre-existing adenomatous polyp. Dr. R.M. further reasoned that, [The Veteran] had a sporadic case of colo-rectal cancer in that he had no documented family history of colon cancer, nor did he have a rare polyposis syndrome that could have pre-disposed him to this disease. Although a cohort of African-American men do develop colo-rectal cancer earlier than other races (hence the recommendation to begin screening African-American men at age 45 vs. age 50 for patients of other ethnic backgrounds), [the Veteran's] cancer likely presented in his mid to late 30's. This early presentation of the disease is not unheard of, but rare for a sporadic case, i.e. without a family pre-disposition or inherited genetic disorder. Dr. R.M. noted that "[i]t is well documented that certain types of malignancies can develop from radiation exposure." According to Dr. R.M., while colo-rectal cancer is not one of the more usual malignancies, such as leukemias and thyroid cancers, "it is documented that colo-rectal cancer can result from ionizing radiation exposure." According to Dr. R.M., "[i]t is thought that radiation can interfere with gene repair mechanisms that prevent colo-rectal cancer, or directly induce genetic mutations that can lead to tumor formation. Dr. R.M. concluded that it was possible that the Veteran's occupational exposure led to his disease. While Dr. R.M.'s opinion regarding radiation exposure being implicated in the Veteran's death is speculative ("possible that radiation exposure led to his disease"), he does indicate that it is likely that colon cancer discovered in 2004 had been present for five or more years, placing the onset of the fatal cancer during a period the Veteran was still on active duty. In a claim for VA benefits, "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert, 1 Vet. App. at 54. Under the benefit of the doubt doctrine, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. Given that the medical opinion in this case is favorable to the claim and that there is no medical evidence to refute that colon cancer had its clinical onset in service, the Board concludes that a remand is not necessary here to obtain another medical opinion to decide the claim as the medical opinion of record is sufficient for that purpose. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As such, no additional discussion or development is necessary as to whether service connection can be established under the theory of presumptive service connection for radiation-exposed veterans in accordance with 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), or under the procedural advantages outlined in 38 C.F.R. § 3.311 for a radiogenic disease. Based on the foregoing, the Board finds that there is reasonable doubt as to whether the Veteran developed metastatic colon cancer during service. To the extent that there is any reasonable doubt, that doubt will be resolved in the appellant's favor. Accordingly, the Board concludes that service connection for the cause of the Veteran's death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs