Citation Nr: 1320709 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 10-01 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from September 1948 to September 1951, and November 1951 to December 1979. He died in August 2006. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Appellant submitted a Notice of Disagreement (NOD) with this determination in July 2007, and perfected her appeal in January 2010. The Appellant was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in July 2012. A written transcript of that hearing was prepared and incorporated into the evidence of record. In October 2012, the Board referred this case for an independent medical expert (IME) opinion. In November 2012, the Board received the IME opinion. The Appellant was provided a copy of this opinion with an opportunity to present further argument and/or evidence. Thus, the claim has been returned to the Board for adjudication. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above 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 issue on appeal. FINDINGS OF FACT 1. The Veteran died on August [redacted], 2006. His death certificate shows that the immediate cause of death was prostate cancer with an interval between onset and death of 5 years. 2. The Veteran was not service-connected for any disability at the time of his death. 3. The Veteran's service records contain a Form DD 1141, Record of Exposure to Ionizing Radiation, which indicates an accumulated does of 0.240 rem between 1962 and 1972. Therefore, the Veteran is a "radiation-exposed Veteran" for VA purposes. 4. The Veteran's cause of death (prostate cancer) is not a disorder that is presumed to be due to exposure to ionizing radiation, but it is a radiogenic disease. 5. The evidence indicates that the Veteran's cause of death (prostate cancer) was not manifested during the Veteran's period of active service or within one year from discharge from service, and it has not otherwise been shown to be related to military service, to include exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.309(d) 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 in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). In the context of a claim for DIC benefits, § 5103(a) notice must 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing § 5103(a) - compliant notice. After a review of the claims folder, the Board finds that the September 2006 VCAA letter satisfied the duty to notify provisions prior to the initial adjudication of the claim on appeal. See 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1) ; Hupp v. Nicholson, 21 Vet. App. 342 (2007). The September 2006 and December 2008 VCAA letters informed the Appellant of the general evidence necessary to substantiate her cause of death claim. As the appellant alleged that the Veteran's death was related to his exposure of ionizing radiation during service, the December 2008 letter also asked the Appellant for specific information to assist in developing that aspect of the claim. The letter advised the Appellant of her and VA's respective duties for obtaining evidence. Although the Appellant was not advised of the criteria for assignment of an effective date in the event of award of the benefit sought, she has not been prejudiced by this notice defect as the decision herein denies the claim. Next, VA has a duty to assist the Appellant in the development of the claim. This duty includes assisting her in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA obtained the Veteran's service treatment records and VA outpatient treatment records. Additionally, copies of private medical records surrounding the time of his death have also been incorporated into the evidence of record. Additionally, opinions by the Director of Radiation and Physical Exposures and an independent medical expert were obtained in connection with the issue on appeal. Therefore, 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). Significantly, neither the Appellant nor her representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist her 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). II. Service Connection Service connection for the cause of the Veteran's death may be granted if a disability incurred in or aggravated by service was either the principle or a contributory cause of the Veteran's death. 38 C.F.R. § 3.312(a) (2012). For a service-connected disability to be the principle cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b) (2012). For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially, and combined to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(c)(1) (2012). 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. "Service-connected diseases 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 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. " 38 C.F.R. § 3.312(c)(3) (2012). Generally, minor service-connected disabilities, particularly those of a static nature, or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2) (2012). "There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature." 38 C.F.R. § 3.312(c)(4) (2012). Service connection for a claimed disorder may be warranted based on exposure to ionizing radiation. Such entitlement may be shown in three ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, a radiation-exposed veteran may be presumptively service-connected for any of the specific diseases listed in 38 C.F.R. § 3.309(d), which encompass a variety of different forms of cancer, although not prostate cancer, as discussed further herein. A "radiation-exposed veteran" is one who participated in a radiation-risk activity which, by definition, means the onsite participation in a test, or within six months of the test, involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3) . If the requirements for presumptive service connection under 38 C.F.R. § 3.309(d)(3) are not met, service connection may also be established if the evidence shows the existence of any other "radiogenic" diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2) or other claimed diseases considered to be radiogenic through a showing of competent scientific or medical evidence. 38 C.F.R. § 3.311(b)(4). Prostate cancer is one of those diseases. 38 C.F.R. § 3.311(b)(2). When it has been determined that: (1) a veteran has been exposed to ionizing radiation; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c) . When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. § 3.311(b), (c)(1) . The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is "at least as likely as not" that the disease resulted from in-service radiation exposure or whether there is "no reasonable possibility" that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1) . Lastly, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cause of Death The Appellant contends that the Veteran's prostate cancer first manifest in service or shortly thereafter. She also contends that his prostate cancer, which was the cause of his death, was due to exposure to ionizing radiation in-service. The Certificate of Death lists the immediate cause of death as prostate cancer with an interval between onset and death of 5 years. No other underlying causes or significant conditions contributing to death, but not resulting in the underlying cause, were noted. The Board notes that the Veteran was not service-connected for any disability at the time of his death in August 2006. Thus, the Board will consider whether the evidence links the Veteran's active duty service to the cause of his death. The Veteran's service treatment records are void of any treatment for or diagnosis of prostate cancer. During service in the Navy, the Veteran was exposed to ionizing radiation as a weapon chief aboard nuclear submarines and as a member of the team to change out nuclear war heads as part of the SALT treaty. The Veteran's service records contain a Form DD 1141, Record of Exposure to Ionizing Radiation, which indicates an accumulated does of 0.240 rem between August 1962 and 1972. Post-service treatment records clearly reflect a diagnosis of prostate cancer in 2001. The Veteran was treated with external beam radiation therapy and radioactive implant. He was on hormonal therapy up until 2003, when he developed metastatic involvement in the pelvis and right leg. In September 2003 he showed signs of progression with involvement of the liver as well as multiple pulmonary nodules and pretracheal lymphadenopathy. He was treated with caroplatin and Taxotere and did well until May 2005, when he presented with recurrent pulmonary embolism and progressively enlarging liver mass. He also developed a number of additional complications, including recurrent pulmonary emboli, bleeding from the prostate gland, chronic pain, weight loss, and severe lower extremity venous disease. He died in August 2006 due to prostate cancer and these additional related complications. In an August 2006 statement, the Veteran's treating oncologist, Dr. Willerford, noted that the Veteran had an unusual form of metastatic prostate cancer that was diagnosed initially in 2001. The doctor noted that the tumor produced very little PSA, and in that regard, was likely present for a long period of time preceding his diagnosis. Additionally, he stated that the Veteran was exposed to radiation during his military service. He concluded that radiation was a known carcinogen and more likely than not contributed to his later development of prostate cancer. In a July 2007 statement, the Appellant related her husband's prostate cancer diagnosis to exposure to radiation of years in Hiroshima and nuclear submarines. The Appellants submitted another October 2007 letter from the Veteran's treating oncologist. He stated that he performed a complete and thorough review of the Veteran's service medical records. He reported that his original professional opinions regarding the Veteran's cancer, including its probable cause by radiation exposure during his time in service, as well as the time of onset, have not changed as a result of his review. The case was referred to the VA Director of Compensation and Pension Service for review. In April 2009, in accordance with the provisions of 38 C.F.R. § 3.311, the Director of Compensation and Pension Service forwarded the case for an opinion from the office of the Under Secretary for Health as to the relationship between the Veteran's disability and his exposure to ionizing radiation in service. The Director of Radiation and Physical Exposures (DRPE) completed a radiation review of the Veteran's case in December 2009. The Director stated that Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was used to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's prostate cancer. This program is available on the Internet at https://www.niosh-irep.com/. The exposure was assumed to have occurred as a single acute does in the earliest year of exposure (1962). This assumption would increase the likelihood for causation of cancer in the IREP calculation. The program calculated a 99th percentile value for the probability of causation of 0.17 percent. Additionally, the Director noted that Dr. Willerford's opinion concerning the Veteran's prostate cancer being present in 1979 was based on his statement indicating that the prostate cancer was "an unusual form of prostate cancer." He did not specific what he meant by this. Some forms of prostate cancer may be slower to develop, but the Veteran had no symptoms of the disease when he left service in 1979. Twenty-two years passed before the cancer was diagnosed. At best, the Director felt the physicians' statement was speculative. The Director concluded that it was unlikely that the Veteran's prostate cancer could be attributed to radiation exposure received while in the military service. In December 2009, an opinion was provided by the Director of the VA Compensation and Pension Service. The opinion summarized the Veteran's in-service occupation and duties, exposure to radiation, private physician letters, and the findings made by the DRPE. Following a review of the record in its entirety it was concluded that there was no reasonable possibility that the Veteran's prostate cancer was the result of his occupational exposure to ionizing radiation during service. The Appellant was afforded a hearing in July 2012. The Appellant stated that during the Veteran's career, there was only one time that he was seriously ill, which was a case of appendicitis. The Appellant stated that the Veteran was diagnosed in 2001 with prostate cancer, but that his treating oncologist stated that his cancer had metastasize before they were married, 25 years prior. She reported that the Veteran's treating oncologist was convinced that he had cancer before he retired from service. The Appellant discussed the Veteran's exposure to radiation, including time in Hiroshima and aboard nuclear submarines. In October 2012, the Board referred this case for an IME opinion discussing whether the Veteran's prostate cancer was related to his time in-service. In November 2012, the Board received the IME opinion from an experienced urologic oncologist. The physician stated that he had significant experience in basic and translational research in the biology of prostate cancer progression, so he was familiar with prostate cancer biology and natural history. He also noted that he had the opportunity to review the Veteran's medical records. The IME concluded that it was not likely (less than 50 percent) that the Veteran's prostate cancer had its onset in the service or within one year of discharge. The Veteran completed his service in 1979. The prostate cancer was diagnosed in 2001. Although he could not locate the original pathology report, it was mentioned in some of the records that the cancer had a Gleason score of 7. The Veteran went on to receive hormonal therapy and external beam radiation and radioactive seed implant. Unfortunately, he later developed metastasis, presumably castrate-resistant disease, and ultimately died in 2006. There IME then addressed the letter from Dr. Willerford, that stated that the Veteran had an "unusual form of metastatic prostate cancer that...produced very little PSA," and "in that regard was likely present for a long period of time preceding the diagnosis." The IME reported that this statement did not make sense to him. First, when a prostate cancer produces very little PSA, it is a sign of cellular dedifferentiation (immaturity). In these cases, the tumor becomes very aggressive with rapid progression. Tumors with rapid progression have a shorter overall natural history. This argues that the tumor was likely not present in 1980 (one year after military discharge), 21 to 22 years prior to the initial diagnosis in 2001. Second, it was not clear whether Dr. Willerford was talking about the serum PSA or the tissue PSA. The former would be measured by blood test, and the latter would be measured by immunostaining. The IME suspected that he was talking about the blood test. Regardless, low PSA production, as measured in blood or in tissue, is a sign of aggressive cancer that progresses over a relatively short period of time. The Board finds that the weight of the competent evidence shows that service connection for the cause of the Veteran's death is not warranted. A review of the claims file indicates that the Veteran was exposed to ionizing radiation as a weapon chief aboard nuclear submarines and as a member of the team to change out nuclear war heads as part of the SALT treaty. The Veteran's service records contain a Form DD 1141, Record of Exposure to Ionizing Radiation, which indicates an accumulated does of 0.240 rem between August 1962 and 1972. Thus, the Veteran is considered a radiation-exposed Veteran. Additionally, medical records show that the Veteran was diagnosed with prostate cancer 2001. Pursuant to the first method for establishing service connection based on radiation exposure, prostate cancer is not among the diseases subject to presumptive service connection under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2). Consequently, service connection cannot be granted on a presumptive basis pursuant to 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Pursuant to 38 C.F.R. § 3.311(b)(2), a "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and prostate cancer is specifically included as a "radiogenic disease" under 38 C.F.R. § 3.311(b)(2). The Veteran's prostate cancer manifested more than 20 years after the Veteran's exposure to ionizing radiation in service, which is within the period specified in 38 C.F.R. § 3.311(b)(5) . In accordance with applicable regulations, VA first obtained documentation of the Veteran's dose estimates of radiation, as well as a medical opinion from the Under Secretary for Health in December 2009, concerning the relationship between the Veteran's disability and his exposure to radiation in service. See 38 C.F.R. § 3.311. The Director of Radiation and Physical Exposures completed a radiation review of the Veteran's case in December 2009. The Director stated that Interactive Radioepidemiological Program of the National Institute for Occupational Safety and Health was used to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's prostate cancer. The exposure was assumed to have occurred as a single acute dose in the earliest year of exposure (1962), which would increase the likelihood for causation of cancer in the IREP calculation. The program calculated a 99th percentile value for the probability of causation of 0.17 percent. Additionally, the Director noted some forms of prostate cancer may be slower to develop, but the Veteran had no symptoms of the disease when he left service in 1979. Twenty-two years passed before the cancer was diagnosed. At best, the Director felt Dr. Willerford's statement was speculative. The Director concluded that it was unlikely that the Veteran's prostate cancer could be attributed to radiation exposure received while in the military service. Based on these findings, the Under Secretary for Benefits, through the Director of Compensation and Pension Service, provided an opinion in December 2009 concluding that there is no reasonable possibility that the Veteran's cancer was the result of radiation exposure. The Director of the Compensation and Pension Service is a member of the VA Central Office and a subordinate of the Under Secretary for Benefits who handles this duty on the Under Secretary's behalf. See M21-1MR, Part IV.ii.1.C.11.c. The probative value of a medical opinion is derived from factors such as whether it is factually accurate, fully articulated, and soundly reasoned. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the collective information and opinions provided by DPRE and the Director of Compensation and Pension Service, which are based on the most favorable dose estimates and other factors specific to the Veteran's case, are found to represent the most probative and accurate evidence on file addressing the nexus issue of radiation exposure and the diagnosed prostate cancer. As summarized herein, all of those opinions in this case fail to support a grant of service connection. Additionally, the Veteran's treating oncologist reported that the Veteran's tumor produced very little PSA, and in that regard, was likely present for a long period of time preceding his diagnosis. He concluded that radiation was a known carcinogen and more likely than not contributed to the Veteran's later development of prostate cancer. While the oncologist reported that he reviewed the Veteran's service record while rendering his opinion, it was without reference to and support from medical or scientific rationale, nor consideration of the estimate of the amount of radiation exposure. The exposure record and the opinions using that data provide a more accurate measure of the amount of radiation to which the Veteran was exposed and hence this evidence is more reliable and probative in relation to addressing the critical matter of etiology in this case. The Board also notes that the Appellant maintains that the Veteran's prostate cancer was related to in-service radiation exposure. The Board acknowledges that the Veteran is competent to report on his symptoms and on the occurrence of events in service. The Board considered whether the lay evidence constitutes competent and credible evidence of etiology in this particular case. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing the symptoms at the time support at later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). The origin of prostate cancer is a complex matter requiring medical expertise. Lay persons are not competent to opine as to medical etiology or render medical opinions on matters of such complexity and as such the Veteran's previous statements and the Appellant's opinions on this matter are of no probative value. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, having weighed the evidence, service connection is not established for prostate cancer as a "radiogenic disease." See 38 C.F.R. § 3.311. Even if the provisions of 38 C.F.R. § 3.311 do not provide a basis for the grant of service connection for prostate cancer, service connection must still be considered on a direct basis under 38 C.F.R. § 3.303(d) in order to determine whether the disease diagnosed after discharge was incurred during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Review of his claims file reveals no other service-related incident identified by the Veteran or the reviewing physicians that might also be a causative factor in the development of prostate cancer. The November 2012 IME opinion concluded that it was not likely that the Veteran's prostate cancer had its onset in the service or within one year of discharge. First, when a prostate cancer produces very little PSA, it is a sign of cellular immaturity. In these cases, the tumor becomes very aggressive with rapid progression, leading to a shorter overall natural history. This argues that the tumor was likely not present in 1980 (one year after military discharge), 21 to 22 years prior to the initial diagnosis in 2001. Additionally, the IME stated that low PSA production, as measured in blood or in tissue, is a sign of aggressive cancer that progresses over a relatively short period of time. The IME reported that he was an experienced urologic oncologist that he had significant experience in basic and translational research in the biology of prostate cancer progression, so he was familiar with prostate cancer biology and natural history. Additionally, the Board notes that the initial diagnosis of prostate cancer occurred in 2001, more than 20 years after his separation from service. The lapse of so many years after his separation from service and the first documented suggestion of the claimed disorder is also probative evidence to be considered in determining whether this claimed disability may be traced back to his military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that the preponderance of the competent evidence is against a relationship to service on a direct service connection basis. Further, the Veteran was not diagnosed with prostate cancer within a year after his separation from service, and hence presumptive service connection is not warranted. As such, the Board finds that the preponderance of the evidence is against the Appellant's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim of service connection for the cause of the Veteran's death must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs