Citation Nr: 1322364 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 09-41 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: J. Michael Woods, Esquire ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to February 1969. He died in February 2008. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied entitlement to service connection for the cause of the Veteran's death. This case was previously before the Board in April 2011, at which time it was remanded for additional evidentiary development. As will be further explained herein, there has been substantial compliance with the actions requested in that remand and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). In the April 2011 Remand the Board observed that in an October 2008 rating decision, a claim of eligibility for Dependents' Educational Assistance benefits was denied, which was followed by the filing of a timely Notice of Disagreement. It was pointed out that no Statement of the Case (SOC) had been subsequently issued, which was a procedural defect requiring a remand. Manlincon v. West, 12 Vet. App. 238 (1999). An SOC addressing this claim was issued in July 2012; however, the appeal was not perfected thereafter, and accordingly that issue is not in appellate status. Based upon a July 2013 review, it does not appear that any documents pertinent to this case exist in a Virtual VA file. 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 February 2008 at the age of 59; the immediate and sole cause of death listed on the death certificate was renal cell carcinoma. 2. At the time of the Veteran's death, service connection was in effect for a right shoulder disability, assigned a 10 percent evaluation; and for a left leg scar assigned a non-compensable evaluation. 3. The Veteran had service in the Republic of Vietnam during the Vietnam era and therefore in-service exposure to herbicides including Agent Orange is presumed. 4. The competent medical evidence is at least in equipoise regarding the matter of whether the Veteran's fatal renal cell carcinoma was related to his in-service herbicide exposure. 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 service. 38 U.S.C.A. §§ 1110, 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 Duty 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the appellant, and remand for such notice and/or development would be an unnecessary use of VA time and resources. Factual Background The Veteran's certificate of death reveals that he died in February 2008 at the age of 59, and that the immediate and sole cause of his death was renal cell carcinoma. The appellant filed a service connection claim for the cause of the Veteran's death in June 2008, claiming that the cause of the Veteran's death was due to service. At the time of the Veteran's death, service-connection was in effect for a right shoulder disability, assigned a 10 percent evaluation; and for a left leg scar assigned a non-compensable evaluation. Service treatment records do not reflect any specific complaints, treatment, or diagnosis of renal cell cancer during service. The Veteran's private terminal medical records dated in 2007 and 2008 are on file. A CT scan report of the chest dated in October 2007 revealed bilateral pulmonary nodules (consistent with metastatic disease), right renal lesions and a renal stone. A January 2007 CT scan report reveals a history of kidney cancer and an impression of increasing pulmonary metastatic disease. The records reflect that the Veteran was treated for metastatic renal cell carcinoma between October 2007 and February 2008. The last medical record on file dated on February 18, 2008, reveals that the Veteran's metastatic renal cell cancer was progressing in spite of treatment and that there was evidence of several new and increasing in size pulmonary metastasis. In a January 2009 statement, the appellant asserted that in addition to the renal cell carcinoma, the Veteran also had lung cancer, cancer of the larynx, and bone cancer, which all played a role in his death. Pursuant to an April 2011 Board Remand, a VA opinion was obtained for the file in July 2011 based on a review of the claims file. The physician noted that metastatic renal cell carcinoma had been diagnosed during a September 2007 hospitalization of the Veteran. The physician proceeded to summarize the private treatment records dated from October 2007 to February 2008, as well as CT scan findings made during that time. She determined that the Veteran's primary cancer was renal cell carcinoma, and mentioned that this was the cause of his death according to the death certificate. She further indicated that the primary renal cell cancer had metastasized to the lumbar spine and lungs, and possibly to his left adrenal gland. She concluded that according to the Institute of Medicine's Health Effects of Agent Orange studies, there was inadequate/insufficient evidence to determine whether an association exists between Agent Orange exposure and renal (kidney and renal pelvis) cancer. In December 2011, additional evidence was provided in support of the claim which was accompanied by a waiver. This evidence included copies of prior Board decisions issued in 2003 and 2005 granting service connection for cause of death claims due to renal cancer. Also on file are 2 articles from the Internet dated in 2011, indicating that VA studies conducted at the VAMC in Shreveport, LA had linked Agent Orange exposure and kidney cancer. Also added to the file in 2011 was a private medical opinion of Dr. H. S. dated in November 2011. The doctor indicated that all of the Veteran's records were made available for his review. Based on a review of those records and reference to and consideration of the 2011 articles/reports of studies linking Agent Orange exposure and the later development of kidney cancer, the doctor opined that it was as likely as not that both lung cancer and renal cell cancer were caused by the Veteran's in-service exposure to Agent Orange. He added that it was also as likely as not that renal cell carcinoma and lung cancer were associated with each other as a primary and metastatic spread, since the Veteran had both malignancies at the same time. Analysis The appellant contends that the Veteran's cause of death, due to renal cancer, was due to his presumed exposure to Agent Orange or other herbicide while in service. The appellant is also essentially arguing that the Veteran had lung cancer, also as a primary cancer, in addition to his renal cell carcinoma, which caused or contributed to cause death, warranting service connection on a presumptive basis. Dependency and Indemnity Compensation (DIC) may be awarded to a Veteran's spouse for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. Id. A service-connected disorder is one that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110. A service-connected disability will be considered the principal (primary) cause of death when such disability, singly 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 service-connected disability will be considered a contributory cause of death when such disability contributed substantially, or combined to cause death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). See Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. As an initial matter, service records confirm that the Veteran served in the Republic of Vietnam during the Vietnam Era. He is therefore presumed to have been exposed to an herbicide agent during service, to include Agent Orange. See 38 C.F.R. § 3.307(a)(1)(6)(iii). In addition, the Veteran's DD 214 indicates that his awards and decorations include a Purple Heart. As such the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are applicable in this case. This provision states, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. However, as a practical matter these provisions are of little applicability in this case, as the issue does not involve the incurrence of a disease or injury during the Veteran's active service period. The key question here is whether the Veteran's fatal renal cell carcinoma was caused by or the result of his presumed exposure to Agent Orange during service; and whether lung cancer may also be considered a primary or contributory cause of the Veteran's death. In this regard, it is noted that under VA law, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) are classified as presumptive conditions associated with herbicide exposure; however, renal/kidney cancers are not. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). VA regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in or as a result of service. 38 C.F.R. §§ 3.303(d), 3.309(e) (2011). See also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange.) 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. In essence, the file contains two opinions addressing the matter of the Veteran's fatal renal cell and lung cancers and their relationship to each other and to service. In this regard, among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The first opinion was provided by a VA physician in 2011. That physician determined that the Veteran's primary cancer was renal cell carcinoma, and mentioned that this was the cause of his death according to the death certificate. She further indicated that the primary renal cell cancer had metastasized to the lumbar spine and lungs, and possibly to his left adrenal gland. She concluded that according to the Institute of Medicine's Health Effects of Agent Orange studies, there was inadequate/insufficient evidence to determine whether an association exists between Agent Orange exposure and renal (kidney and renal pelvis) cancer. In essence, although the VA examiner indicated that she could not resolve the issue regarding the relationship between the Veteran's fatal renal cell cancer and his in-service exposure to Agent Orange, her opinion is found to be adequate. The Board is cognizant of the holding of Jones v. Shinseki, 23 Vet. App. 382 (2010), where the Court stated that while VA need not "proceed through multiple iterations of repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile," it must be clear "that the examiner has not invoked the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled." In essence, the Court in Jones acknowledged, there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation (as is the case in essence here), it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. With regard to the 2011 opinion, as detailed above, the VA examiner reviewed the claims folder, summarized the relevant facts and history, and indicated that an opinion could not be provided regarding the likely etiology of the Veteran's fatal renal cell cancer. Accordingly, in essence, the VA examiner concluded that an opinion could not be provided without resort to speculation. To be adequate, a medical opinion must do more than state a conclusion that etiology of a disability is unknown or unknowable; rather, the medical examiner must support his or her conclusion with sufficient rationale and explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign the doctor's opinions"). That explanation was provided by the VA examiner in this case, as discussed above. However, as a practical matter, while adequate, the 2011 VA opinion neither supports nor undermines the appellant's claim. In contrast, the record contains a private medical opinion of Dr. H. S. dated in November 2011. The doctor indicated that all of the Veteran's records were made available for his review. Based on a review of those records and reference to and consideration of the reports of studies (also on file) linking Agent Orange exposure and the later development of kidney cancer, the doctor opined that it was as likely as not that both lung cancer and renal cell cancer were caused by the Veteran's in-service exposure to Agent Orange. He added that it was also as likely as not that renal cell carcinoma and lung cancer were associated with each other as a primary and metastatic spread, since the Veteran had both malignancies at the same time. The aforementioned private medical opinion was issued based on a full review of the file, and is supported by the clinical evidence as well as studies referenced by the opining doctor, which do in fact reflect that both renal cancer and lung cancer were co-existing clinical conditions shown during the months prior to the Veteran's death. With respect to the studies discussed in that opinion, the Court has held 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). Here, while the Veteran was not actually involved in the studies referenced by the doctor, the findings regarding the possibility of an etiological relationship between kidney cancer and exposure to Agent Orange are pertinent to the Veteran's case, and discussion of the studies are accompanied by a positive supporting medical opinion pertinent to the claim, in that regard. Significantly, the Board finds no reason to question the credentials and experience of the private doctor who provided the opinion received in 2011 and furthermore, after carefully reviewing this evidence, the Board finds no adequate basis to reject this competent medical opinion which is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Hence, this evidence has been assigned a great deal of probative weight by the Board. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (1998); (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). 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. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine, when the evidence is in "relative equipoise, the law dictates that the claimant prevails. Id. Based on the foregoing, the Board finds that the evidence is at least in equipoise in regard to the matter of whether the Veteran's fatal renal cell cancer with accompanying lung cancer is etiologically linked to herbicide exposure to which the Veteran was presumed to have been exposed during his service in Vietnam. To the extent that there is any reasonable doubt as to this critical inquiry, that doubt is CONTINUE ON THE NEXT PAGE resolved in the appellant's favor. Accordingly, the Board concludes that service connection for the cause of the Veteran's death is warranted. ORDER The appeal to establish service connection for the cause of the Veteran's death is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs