Citation Nr: 1313017 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 04-12 287A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for liver cancer and associated metastases. 2. Entitlement to service connection for depression. 3. Entitlement to service connection for a breathing disorder. 4. Entitlement to service connection for a heart disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from May 1981 to May 1986. He died in February 2011 during the pendency of this appeal, and his widow submitted a request to be substituted as the appellant for purposes of continuing the appeal. The regional office (RO) accepted her request to substitute. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) RO. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in May 2006. A transcript of the hearing is associated with the claims file. During the hearing, he submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. In February 2007, the Board denied the Veteran's claim of service connection for primary lung cancer and remanded the remaining issues for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran had liver cancer (hepatocellular carcinoma) attributable to his military service, which cancer metastasized to the lung. 2. The Veteran's depression was likely caused by his liver cancer. 3. A breathing disorder other than that caused by metastatic cancer from the liver was not related to the Veteran's military service. 4. The Veteran did not have a heart disorder related to his military service. CONCLUSIONS OF LAW 1. The Veteran had liver cancer (hepatocellular carcinoma) with metastases that was the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2012). 2. The Veteran had depression that likely was caused by service-connected liver cancer with metastases. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.310 (2012). 3. The Veteran did not have a breathing disorder other than that caused by metastatic liver cancer that was the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2012). 4. The Veteran did not have a heart disorder that was the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a March 2006 communication, and the claim was thereafter re-adjudicated in a September 2012 Supplemental Statement of the Case. Accordingly, any timing deficiency has here been cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). VA also has a duty to assist a claim in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a May 2006 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's February 2007 remand, VA sent the Veteran a March 2007 letter requesting that he complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for the identified private treatment providers and any other private health care providers. VA then sent records requests to the identified providers, in some cases twice. The records and letters received in response are now included in the claims folder. VA also sought and obtained the Veteran's Social Security Administration (SSA) records. Efforts to obtain the Veteran's separation examination and DD 1141, which included a search of the microfiche and request to the Naval Dosimetry Center, were unsuccessful and further attempts were deemed futile, as detailed in a September 2012 memorandum. Likewise, efforts to obtain records of the Veteran's reported examination for breathing problems at the VAMC in 2004 were unsuccessful as only one record of VA treatment from that year (March 2004) was found, despite a search of medical records from VAMC Biloxi, VAMC Milwaukee, and VAMC Central Alabama. These efforts were documented in the September 2012 formal finding memorandum. In January 2011, the Director of Radiation and Physical Exposure provided a radiation dose estimate of 2.5 rem based on the lack of an occupational exposure record from service and the maximum level of exposure allowed under federal regulations without such a record. This dosage estimate was then used in the February 2011 advisory opinion. As the Veteran died during the pendency of this claim, further medical examination was not possible. Instead, the Veteran's claims file was submitted for medical evaluation and opinion in April 2012. This evaluation contained a review of the objective evidence of record and the Veteran's subjective complaints, before offering opinions as to the etiology of the claimed disabilities, accompanied by a rationale. Therefore, these reviews are adequate for VA purposes. Thus, VA has substantially complied with the February 2007 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Liver Cancer In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). With respect to claims based on the theory of exposure to ionizing radiation, service connection for a disorder that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Hilkert v. West, 12 Vet. App. 145 (1999). First, qualification under the presumptive provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) occurs when the Veteran develops one the listed cancers and establishes his (or her) participation in a "radiation risk activity." A radiation risk activity is defined as (i) onsite participation in a test involving the atmospheric detonation of a nuclear device; (ii) the occupation in Hiroshima or Nagasaki, Japan by the United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or (iii) internment as a prisoner of war in Japan during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupation forces in Hiroshima or Nagasaki, Japan during the period beginning on August 6, 1945, and ending on July 1, 1946. See 38 U.S.C.A. § 1112(c )(3) (B); 38 C.F.R. § 3.309(d)(3). Second, service connection may be established if a radiation-exposed veteran develops a "radiogenic disease" (one that may be induced by ionizing radiation, either listed at 38 C.F.R. § 3.311(b)(2) or established by competent scientific or medical evidence to be a radiogenic disease), and if the VA Under Secretary for Benefits determines that a relationship does in fact exist between the disease and the Veteran's exposure in service. 38 C.F.R. § 3.311(b). When a claim is based on a disease other than one of those listed in 38 C.F.R. § 3.311(b)(2), VA shall nevertheless consider the claim under the provisions of 38 C.F.R. § 3.311 provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). If any of the three requirements listed at 38 C.F.R. § 3.311(b)(1)(i), (ii) and (iii) has not been met, it shall be determined that a disease has not resulted from exposure to ionizing radiation under such circumstances. Third, even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309(d)(3) (presumptive service connection) and 38 C.F.R. § 3.311(b) (service connection based on the certain conditions specified in that regulation), the claim still can be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation). To prevail on the issue of direct service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the Board notes that the Veteran and now the substituted appellant have argued for service connection of liver cancer due to exposure to ionizing radiation and/or exposure to chemical toxins. In this case, the evidence of record is at least in equipoise with regard to the chemical toxin theory of causation and therefore further discussion of ionizing radiation with regard to this disability is unnecessary. The record shows treatment for liver cancer during the claim period. Thus, the current disability requirement is satisfied. The Veteran's service treatment records are silent with regard to the onset of liver cancer, but his service personnel records do show a military occupational specialty (MOS) of engineering aide and describes his duties as including soil testing. The Veteran reported that these duties included exposure to trichloroethylene and trichloroethane in the soil lab. A claimant is competent to provide lay evidence of the types of chemicals he used in performance of his duties and the Board finds this evidence credible. Therefore, his in-service exposure to these chemicals is conceded. Thus, the sole question for consideration is whether the Veteran's liver cancer was related to his in-service chemical exposure. In this case, the April 2012 VA opinion found that it was not at least as likely as not that the Veteran's liver cancer was related to his military service while the private oncologist that it was at least as likely as not that the Veteran's liver cancer was due to his toxic exposures. Both opinions included complete rationale with the VA reviewer noting the Veteran's documented history of alcohol abuse and that "[a] thorough review of the medical literature does not support the contention that exposure to trichloroethylene and/or 1,1,1, trichloroethane vapor clearly causes hepatocellular carcinoma," while the private oncologist stressed that the National Toxicology Program's 9th Report on Carcinogens determined that trichloroethylene was "reasonably anticipated to be a human carcinogen" and noted the absence of other risk factors such as cirrhosis and viral hepatitis. Therefore, the Board finds that the evidence of record is at least in equipoise as to whether the chemical exposure in service resulted in the currently claimed liver cancer. In conclusion, with the application of 38 C.F.R. § 3.102, the record supports a grant of service connection for liver cancer and, by extension, its associated metastatic disease processes. The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit-of-the-doubt doctrine has been applied. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Depression In his lay statement submitted in conjunction with his April 2004 VA Form 9, the Veteran alleged that his depression was due to or worsened by his cancer. As described below, the evidence of record supports this theory of secondary service connection. Service connection may be 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); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The Veteran has claimed service connection for his depression as secondary to his depression. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As explained above, service connection for liver cancer is now warranted. Additionally, the record shows a diagnosis of major depression during the claim period. Thus, the first two requirements under Wallin have been satisfied. The remaining question is whether the record contains medical nexus evidence establishing a connection between his major depression and the service-connected liver cancer. As noted above, the Veteran himself provided lay evidence of a causal relationship between his cancer and his depression. A lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is unclear from this case whether the Veteran's depression in response to his cancer diagnosis was the type of immediately observable cause-and-effect relationship contemplated by Jandreau. In a May 2007 letter, the Veteran's private counselor, T.M.G., found that the Veteran had "major depression severe due to cancers of the liver and lungs." In a July 2008 letter, the Veteran's private psychiatrist noted that his severe major depression was complicated by his medical health problems, but did not offer an opinion as to a causal relationship. Nevertheless, the Board finds the May 2007 letter sufficient to establish service connection on a secondary basis. The benefit sought on appeal is accordingly allowed. Breathing Disorder As noted in the introduction, the February 2007 Board decision denied service connection for primary lung cancer. To the extent that the Veteran's lung disability may have been associated with metastases of his service-connected liver cancer, such has now been service connected. Consequently, the Board's consideration of the breathing disorder issue is limited to any breathing disorder other than that caused by metastatic liver cancer. The appellant has not alleged, nor does the record show, that the Veteran participated in a radiation risk activity as defined by 38 C.F.R. § 3.309(d)(3). Additionally, during the pendency of this appeal, the Veteran's complaints of shortness of breath have been associated with obstructive sleep apnea and pickwickian syndrome, neither of which are a radiogenic disease within the definition of 38 C.F.R. § 3.311(b)(2). Nevertheless, the Board will still consider whether service connection on a direct basis is warranted. See Combee, 34 F.3d 1039. As noted above, the record contains a diagnosis of sleep apnea during the claim period. Likewise, chemical exposure in-service has been conceded. Thus, the current disability and in-service injury requirements have been satisfied. The remaining question is whether a breathing disorder, to include sleep apnea, was related to his military service, including in-service chemical exposure. In this regard, the record does not contain a positive medical nexus opinion. Instead, the April 2012 VA examiner found that it was not at least as likely as not that a breathing disorder, to include sleep apnea, was related to his military service, to include in-service chemical exposure. To the extent that the Veteran himself and now the appellant believe that his breathing disorder was due to his military service, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious through lay observation. Jandreau, 492 F.3d 1372, 1377. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, a lay person is not competent to address etiology in the present case. Thus, the Board finds that the medical nexus requirement has not been met. In short, without a link to military service, the Board concludes that the greater weight of the evidence is against the Veteran's claim of entitlement to service connection for a breathing disorder. Thus, the appeal must be denied with regard to the breathing disorder claim. Heart Disorder First, the Board has considered whether service connection for a heart disorder may be granted on a presumptive basis. Cardiovascular-renal disease, including hypertension, is presumed to have been incurred in service if manifested or aggravated within one year of separation from service to a degree of 10 percent or more, provided that the Veteran has served a minimum of 90 days either during a period of war or during peacetime service after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309; 38 C.F.R. § 3.307. A 10 percent manifestation of hypertension requires diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. While the Veteran satisfies the service requirement of this regulation, the evidence does not show manifestation of hypertension to a degree of 10 percent or more within one year of his separation from service. Instead, the first record of hypertension is from June 1999, thirteen years after the Veteran's separation from service. Accordingly, there is no basis for a grant of presumptive service connection as a chronic disease. As noted above, the appellant has not alleged, nor does the record show, that the Veteran participated in a radiation risk activity as defined by 38 C.F.R. § 3.309(d)(3). Moreover, the record does not show a diagnosis of a heart condition that is a radiogenic disease within the definition of 38 C.F.R. § 3.311(b)(2). Again, the Board will still consider whether service connection on a direct basis is warranted. See Combee, 34 F.3d 1039. During the pendency of this appeal, the Veteran's problems included cardiomegaly, tract mitral and tricuspid insufficiency, diastolic dysfunction, sinus tachycardia, and hypertension. Likewise, as noted above, chemical exposure in-service has been conceded. Thus, the current disability and in-service injury requirements have been satisfied. The question is whether the Veteran's heart disorder was related to his military service, including in-service chemical exposure. In this regard, the April 2012 VA examiner found that it was not at least as likely as not that the Veteran's heart disorder was related to his military service, to include in-service chemical exposure. While the Veteran himself and now the substitute appellant believe that the Veteran's heart disorder was due to his military service, the question of causation again extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. See Jandreau, 492 F.3d 1372, 1377. Thus, the medical nexus requirement has not been met. Alternately, service connection for these disabilities may be established by a continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013)(holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a)). In this case, hypertension is the only one of the Veteran's disorders that qualifies as a chronic condition under 38 C.F.R. § 3.309(a). The record does not show and the Veteran did not allege continuity of his hypertension dating back to his military service. While the Veteran, in an October 2002 statement, noted a slow decline in his health following his separation from service, this statement does not specifically allege symptoms of or hypertension for the entirety of that time. Thus, the evidence is against a finding of continuity of symptomatology. In short, for reasons expressed above, the Board concludes that the greater weight of the evidence is against the Veteran's claim of entitlement to service connection for a heart disorder. Thus, the appeal of this issue must be denied. ORDER Service connection for liver cancer and associated metastases is granted. Service connection for depression is granted. Service connection for a breathing disorder other than that caused by metastatic liver cancer is denied. Service connection for a heart disorder is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs