Citation Nr: 1317093 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 10-34 807 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from August 1945 to November 1946. He passed away in January 2009. The appellant is his surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2009 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in January 2009. 2. The Veteran's death certificate identifies the cause of his death as esophageal cancer. 3. At the time of his death, the Veteran's only service connected disability was bronchial asthma/chronic obstructive pulmonary disorder (COPD). 4. The more persuasive evidence does not establish that the Veteran's service connected disability was either the principal or a contributory cause of his death. CONCLUSION OF LAW Criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Cause of Death To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312. The Veteran passed away in January 2009. His death certificate identified the cause of his death as esophageal cancer. At the time of his death, the Veteran's only service connected disability was bronchial asthma/COPD. The appellant seeks service connection for the cause of the Veteran's death. At a hearing before the Board in May 2013, the appellant's representative pointed to evidence in the record identifying the known link between esophageal cancer and gastroesophageal reflux disease (GERD), and argued essentially that Veteran's service connected bronchial asthma/COPD caused GERD, which caused the esophageal cancer that caused his death, and that therefore his service connected bronchial asthma/COPD should be considered to be a contributory cause of his death. In support of this contention, the appellant submitted several medical articles from the internet, as well as two statements from medical professionals who had treated the Veteran during his life. Turning first to the private medical opinions, in August 2010, Dr. Sunde wrote that the Veteran struggled for decades with asthma and COPD, both of which he felt ultimately contributed to the Veteran's death. However, Dr. Sunde provided no rationale for such an assertion, which significantly diminishes the probative value of his opinion and the weight that can be afforded to it. The appellant also submitted an April 2012 statement from Dr. Daeke who wrote that he had been the Veteran's attending physician earlier in his life before the onset of his esophageal cancer. He noted that the Veteran had substantial problems with COPD and bronchospasm and was on daily inhalers and intermittent steroid boluses. Dr. Daeke noted that the Veteran did experience intermittent gastroesophageal reflux symptoms during the steroid boluses which were treated with H2 blockers and proton pump inhibitors; and he stated that it was certainly medically possible that the Veteran's breathing problems coupled with reflux esophagitis secondary to the steroids could have led to cellular changes that then led to the carcinoma. Thus, he concluded that the severity of the Veteran's COPD was a contributing cause of his death. Thus, Dr. Daeke effectively concluded that there certainly possibly could be a relationship between the Veteran's esophageal cancer and his service connected disability. However, "could be" in the context of a medical opinion is the same as "could not be" and therefore cannot provide the requisite nexus. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Nevertheless, given the suggestion that the cause of Veteran's death could have been in part caused by his service connected disability, VA obtained several medical opinions. In July 2011, a VA examiner reviewed the Veteran's claims file and treatment records, noting that his asthma/COPD was treated with the usual medications including beta-agonists/anticholingergics, both short and long-acting MDIs/nebulizers and inhaled steroids. The Veteran was also on theophylline and oral steroids for exacerbations and was eventually on home oxygen. The examiner noted that the Veteran was a longtime smoker, and she observed that neither his VA nor his civilian medical records included any reporting of chronic heartburn/GERD-like symptoms. Having reviewed the evidence of record, the examiner opined that the Veteran's esophageal cancer was neither directly nor proximally related to his use of asthma/COPD medications. She explained that the medical literature about the relationship between asthma medications and esophageal cancer found the connection to be between whether there is chronic reflux disease, due to the asthma medications, that develops (or places the patient at a higher risk of developing) into complications of Barrett's disease and esophageal cancer. That is, there is no direct relationship between asthma medication and esophageal cancer, as asthma medications in and of themselves do not cause esophageal cancer. The examiner also addressed the mechanism between asthma medication and esophageal cancer, explaining that asthma medications can cause a relaxation of the lower esophageal sphincter. The reduced pressure at the sphincter puts the patient at risk for chronic gastroesophageal reflux, which can change the histology of the cells in the lower esophagus, a process which is known as Barrett's esophagus, a premalignant condition. The abnormal cells may then become dysplastic (or cancerous). The examiner did remark that the Veteran's significant smoking history was also a risk factor for any malignancy and noted that smoking itself could also cause esophagitis. Having explained the causal relationship between esophageal cancer and bronchial asthma; the examiner found that the Veteran's medical treatment records did not show any indications that he had chronic acid disease as a side effect of his ongoing use of his asthma/COPD medications. The examiner noted that the common symptoms for chronic acid reflux were heart burn, regurgitation and dysphagia, but a review of his treatment records showed only dysphagia around the diagnosis of the advanced esophageal cancer. That is, it was not an ongoing chronic issue prior to the esophageal cancer being diagnosed. As such, the examiner concluded that the dysphagia was secondary to the cancer itself, and not to the Veteran's service connected disability. The examiner added that a review of the treatment records also failed to show any reports of reflux, heart burn, peptic ulcer disease, chronic abdominal pain, or regurgitation. The examiner observed that there was a cardiac evaluation for atypical chest pain, but noted that there was no chronicity of such complaints that would suggest that the chest pain was due to an ongoing chronic reflux disease. Additionally, she noted that there were no prior endoscopic evaluations before 2008 to indicate ongoing acid disorder or concern for Barrett's disease. Based on these findings, the examiner concluded that there were no significant symptoms for a chronic acid disorder related to the Veteran's asthma/COPD medication use and hence no relationship between the medications used to treat his service connected disability and his esophageal cancer. A second opinion was obtained in June 2012. The examiner explained that his residency, Board Certification, and more than twenty years of surgical practice was in the practice of general surgery and as such he asserted considerable expertise with regard to both esophageal cancer and GERD. The examiner noted that the Veteran's service treatment records showed that he was diagnosed with asthma in service, but the gastrointestinal review of symptoms was negative and the service treatment records were silent for any complaints, evaluations, treatments, or diagnoses of GERD. Following service, the examiner noted that the Veteran had a 70 pack year history of tobacco abuse and was obese, which he later explained was relevant as these were two of the primary risk factors for developing esophageal cancer. The examiner observed that his review of the Veteran's post-service records, including the private treatment records from Dr. Sunde from 1996-2001 and the VA treatment records, did not locate any complaints, treatments or diagnoses of GERD. He noted that in a January 1987 treatment record it was recommend that no testing for GERD be conducted because historically GERD had not seemed to be a major contributing factor to the Veteran's airflow obstruction, and noted that in September 2000 the Veteran had specifically denied any indigestion. Thus, the examiner concluded that there was simply no medical record to support a finding that the Veteran had ever had GERD. The examiner then addressed the statement from Dr. Daeke, and particularly his assertion that the Veteran during steroid boluses developed intermittent GERD symptoms that required pharmaceutical treatments. The examiner acknowledged that inpatient records from the Veteran's November 4-10, 2000 admission for COPD and pneumonia showed that the Veteran was treated with steroid boluses as noted by Dr. Daeke, but the examiner noted that the records did not document any orders for any GERD or peptic ulcer medications. Additionally, he noted that the Veteran was only treated with steroid boluses approximately 6-8 times in the decade before his death, and a note in November 2000 stated that the steroid treatments were only for short periods of time. From this the examiner reasoned that even if there were times that the Veteran experienced GERD symptoms while being treated with steroids (and the examiner stressed that he did not find any record of this) the impact of the infrequent, short duration episodes of GERD symptoms would be negligible in terms of inducing chronic esophagitis. Thus, the examiner concluded that despite the statement from Dr. Daeke, the weight of the evidence suggested that the Veteran never had any significant amount of chronic GERD that could cause chronic esophagitis that would then lead to esophageal cancer. The examiner explained that the three biggest risk factors for the development of esophageal cancer were tobacco abuse, obesity and GERD; which he found to be relevant as the treatment records showed no evidence of GERD, but did document both long-standing obesity and tobacco abuse. As such, the examiner opined that the Veteran's esophageal cancer was due to his tobacco abuse and obesity. He then further addressed the statements from Dr. Daeke and Dr. Sunde, noting that neither doctor provided any rationale for their suggestions that the Veteran's asthma/COPD contributed to his death, and neither cited to any supporting medical records which would make their conclusions specific to the facts of the Veteran's case. At this juncture, the Board notes that as finder of fact, it must determine, both the weight and credibility of all the evidence of record. To this end, equal weight is not accorded to each piece of evidence contained in a record; and every item is not considered to have the same probative value. Rather, the Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). As discussed above, opinions have been received from four medical professionals. All four are doctors and as such they are all found to have the requisite medical training and experience necessary to opine on complex medical questions. However, a plain reading of the four opinions leaves no doubt that the VA opinions are more probative. As an initial point, neither Dr. Daeke nor Dr. Sunde offered any rationale for his opinion. Instead each provided brief and highly speculative statements and neither pointed to any actual medical treatment record to bolster their opinions. Conversely, both VA examiners grounded their opinions in the medical evidence of record; pointed to the risk factors for developing esophageal cancer; noted that the Veteran had two of the three risk factors for esophageal cancer unrelated to his service connected disability; and reviewed/discussed the relevant medical literature. The VA examiners looked specifically to the relevant findings in the Veteran's case, and specifically addressed why the Veteran's lone risk factor for esophageal cancer, namely that he may have experienced some symptoms of GERD during his life, was not of sufficient severity or chronicity to have caused the esophagitis that would have had to be present if his service connected bronchial asthma contributed in any way to his development of esophageal cancer. Thus, the VA examiners went from a broad, macro perspective which acknowledged that bronchial asthma could lead to esophageal cancer if the medication used to treat the bronchial asthma caused GERD, to a narrow, micro perspective of finding that in the Veteran's case he did not develop GERD as a result of his bronchial asthma. It is noted that the appellant's representative suggested that there were two opinions that supported service connection and two that had concluded that service connection was not warranted and that this equated to equipoise and mandated the resolution of reasonable doubt in the appellant's favor. However, to accept such a conclusion would require the Board to entirely ignore the lengthy and thorough explanations the VA examiners provided for why they had reached their conclusions. This the Board cannot do. As discussed, the VA examiners' opinions are found to be considerably more probative than are the private opinions and therefore they are afforded greater weight. When this is done, the evidence for and against simply is not in equipoise, but rather tilts significantly against the finding that service connection for the cause of the Veteran's death is warranted. The appellant's representative also cited to Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008), for the premise that a review of the claims file alone does not automatically render one medical opinion superior to or more probative than another. The Board does not disagree with this holding. However, here, it is not the review of the Veteran's claims file that makes the examiners' opinions more probative, but rather it is the fact that such a review failed to show that the Veteran had been diagnosed with GERD or had even experienced chronic symptoms of GERD that is relevant; as well as the fact that in such a case the medical literature did not support a connection between esophageal cancer and bronchial asthma. As such, the review of the claims file alone was not what made the VA opinions more probative, it was the better reasoned and more supported conclusions that made them more probative. As noted, the appellant submitted several medical articles from the internet in support of her claim; and the United States Court of Appeals for Veterans Claims (the Court) has recognized that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). The VA examiner in 2012 reviewed the articles, and summarized their essential findings which were that patients with asthma had a two-fold incidence of GERD and that GERD can cause chronic esophagitis that sometimes leads to the development of esophageal cancer. However, the examiner concluded that even if the articles' findings were conceded, the fact remained that the Veteran did not have any objective documentation of GERD and the weight of the medical evidence was overwhelming that he had no significant chronic reflux esophagitis. This conclusion, based on a review of the Veteran's treatment records, means that the patients in the articles had presented with a medical picture that was different from the Veteran's picture, and therefore the findings of the study are not applicable to the Veteran's case. Finally, the examiner noted an abstract of an article which addressed the hypothesis that patients with esophageal cancer might have a worsened clinical course if they also have COPD. He noted that the article came out of a university in Poland and was no means a widely quoted or accepted in U.S. medical literature. Regardless, he noted that the fact that some patients with esophageal cancer and COPD might hypothetically have an accelerated esophageal cancer clinical course does not mean that the Veteran in this case did. Thus, these articles do not support a grant of service connection in this case. The Board is very sympathetic towards the appellant's case, and regrets the loss of her husband. The Board is also deeply appreciative of his honorable service to his country. However, the Board is bound by the law, and this decision is dictated by the relevant statutes and regulations. Here, as discussed, the weight of the evidence in this case is overwhelmingly against a conclusion that the Veteran's death was in any way the result of his service connected bronchial asthma/COPD. As such, service connection for the cause of the Veteran's death is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, section 5103(a) notice must be tailored to the claim. The notice should include (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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In the present case, notice was provided by a March 2009 letter, which informed the appellant of all the elements required by the Pelegrini II Court as stated above. While the letter did not specifically inform the appellant that the Veteran's only service connected disability was his COPD/bronchial asthma, such a failure is at most harmless error, as it is clear from the record that the appellant was well aware of this fact as evidenced by the fact that she submitted not one, but two private medical opinions which attempted to link the Veteran's death to his lone service connected disability. She also testified at a hearing before the Board at which this theory of entitlement was thoroughly discussed. Moreover, neither the appellant nor her representative have suggested that she has in any way been prejudiced with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All relevant VA and private treatment records appear to have been obtained, as were service treatment records. Two private medical opinion were also received in support of the appellant's appeal, and several copies of potentially relevant medical articles were submitted. VA also obtained two medical opinions. The opinions were based on a full and complete knowledge of the evidence of record and on a review of the medical literature. Moreover, both opinions were supported by highly detailed rationales, and neither the appellant, nor her representative, has in any way questioned the adequacy of either of the VA medical opinions. Additionally, the appellant testified at a hearing before the Board in May 2013. The Court has held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the appellant's representative fully explained the issue on appeal and the VLJ asked questions to ensure that all relevant treatment records had been obtained. As such, the requirements expressed in Bryant were clearly addressed. Moreover, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the appellant's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs