Citation Nr: 1325980 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 07-21 865 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran, who died in October 2005, served on active duty in the United States Navy from January 1956 to December 1959. The appellant is his surviving spouse, and the marriage certificate indicates that they were married in November 1960. This case was previously before the Board of Veterans' Appeals (Board) in June and December 2010. Each time, it was remanded for further development. In June 2010, the case was remanded so that the appellant could be scheduled for a hearing. That hearing was held at the RO before the Acting Veterans Law Judge whose signature appears at the end of this decision. In December 2010, the case was remanded for readjudication, after the appellant submitted additional evidence which had not previously been considered by VA. Following the requested development, the VA Appeals Management Center in Washington, D.C. confirmed and continued the denial of entitlement to service connection for the cause of the Veteran's death. Thereafter, the case was returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran died in October 2005, as a result of non-small lung carcinoma with metastasis to the brain. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. Non-small lung carcinoma with metastasis to the brain was first manifested many years after service, and the preponderance of the competent evidence of record is against a finding that it is in any way related to service. 4. The preponderance of the evidence of record is against a finding that the claimed asbestos exposure in service contributed substantially or materially to cause the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.A. §§ 1310, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the appeal, the Board must determine whether VA has met its statutory duty to assist the appellant in the development of the issue of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In December 2005, VA received the appellant's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of her application, VA informed the appellant of the criteria for service connection for the cause of the Veteran's death. VA also notified the appellant of the information and evidence necessary to substantiate and complete her claim, including the evidence to be provided by her, and notice of the evidence VA would attempt to obtain. See the January 2006 VCAA letter. Following the notice to the appellant, VA obtained or ensured the presence of the Veteran's service treatment and personnel records; records from Umqua Medical, P.C. and Mercy Medical Center reflecting the Veteran's treatment from August through October 2005; reports from G.A.F., D.O., dated in February and June 2006 and September 2010; and reports from E.J.O., III, M.D. and R.E.L., M.D., dated in July 2006. In May 2008, the claims file was reviewed by a VA physician for an opinion as to the etiology of the Veteran's fatal non-small lung carcinoma with metastasis to the brain. The VA physician reviewed and addressed the appellant's theory of the case and the evidence of record in light of the recent medical literature and his personal experience reviewing hundreds of Veterans' claims. Thereafter, he rendered an opinion and set forth the reasons he reached the opinion he did. Therefore, the Board concludes that the VA physician's report is adequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In addition to the foregoing evidence, the Board notes that the transcript of the appellant's August 2010 hearing has been associated with the claims folder. The hearing transcript shows the presiding Acting Veterans Law Judge conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2) insofar as (1) explaining fully the issue and (2) suggesting the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, the transcript of the hearing shows the presiding Acting Veterans Law Judge identified the material issue, determined that no additional evidence was going to be submitted during the hearing, gave the appellant's representative an opportunity to elicit testimony from the appellant and her witness, clarified the reason the RO had denied the claim, attempted to clarify the degree of the Veteran's exposure to asbestos in service, and explained the procedure by which the Board would make its determination. Therefore, there was no prejudice to the appellant's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). During the pendency of the appeal, the United States Court of Veterans Appeals (Court) set forth certain additional requirements with respect to claims for Dependency Indemnity and Compensation benefits based on service connection for the cause of death. Those requirements consisted of the following: (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 cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In Hupp, the Court stated that the content of the duty to assist notice letter would depend upon the information provided in the claimant's application for service connection for the cause of the Veteran's death. While VA was not required to assess the weight, sufficiency, credibility, or probative value of any assertion made in the claimant's application for benefits, the Court held that the notice letter should be "tailored" and must respond to the particulars of the application submitted. 38 U.S.C.A. § 5103(a). In this case, the notice sent to the appellant in January 2006 was not tailored, specifically, to the appellant's claim. For example, it did not include a statement of the conditions, if any, for which a Veteran was service-connected at the time of his death. However, the fact that the notice was not tailored, specifically, to the appellant's claim has not resulted in prejudice to the appellant in the development of the record. She and her representative have shown a familiarity with the criteria set forth in Hupp, as demonstrated, for example, in multiple communications with VA and the testimony rendered at the appellant's hearing on appeal. Therefore, the fact that the duty to assist letter was not tailored, specifically, to the appellant's claim constituted no more than harmless error. Accordingly, it does not require corrective action. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be shown . . . that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also, Overton v. Nicholson, 20 Vet. App. 427 (2006). In sum, the appellant has been afforded a meaningful opportunity to participate in the development of her appeal. She has not identified any outstanding evidence which could support her claim; and there is no evidence of any VA error in notifying or assisting her that could result in prejudice to her or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Applicable Law and Regulations Dependency and indemnity compensation may be awarded to a Veteran's surviving spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or a contributory cause of death. 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. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, to support a claim of entitlement to service connection for the cause of the veteran's death, there must be competent evidence of the fatal disability; competent evidence of a disease or injury in service; and competent evidence of a nexus between the in-service injury or disease and the fatal disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For certain disorders, such as malignant tumors, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2012). Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307 (2012). In addition to the foregoing, the applicable law and regulations state that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Factual Background The death certificate shows that Veteran died in October 2005, as a result of non-small lung carcinoma with metastasis to the brain. An autopsy was not conducted. It was noted that there were no other conditions contributing to the Veteran's death but not resulting in the underlying cause given. Tobacco was listed as contributing to death. The Veteran's usual occupation was listed as a plumber in the pipe fitting industry. The evidence shows that in service, the Veteran's primary occupational specialty was as an Aviation Electronics Technician. During part of his active duty, he was assigned to the aircraft carrier, U.S.S. Shangri-La. The Veteran's service treatment records, as well as the reports of his December 1955 service entrance examination and his November 1959 service separation examination are negative for any evidence of a chronic, identifiable lung or brain disorder of any kind, including non-small lung carcinoma with metastasis to the brain. Records from Umqua Medical, P.C., and the Mercy Medical Center show that non-small lung carcinoma with metastasis to the brain and adrenal glands was first manifested in 2005. The diagnosis was confirmed by a bronchoscopy, biopsy and radiographic studies, including a CT scan of the chest and a PET scan of the brain. In an August 2005 report of a medical oncology consultation, E.J.O., III, M.D., noted that since the age of 14, the Veteran had been smoking up to 2 packs of cigarettes per day and that he had recently cut back to 10 cigarettes per day. Dr. O. also noted that the Veteran had been a farmer for 29 years and that he had served in the Navy. The Veteran's medical history included chronic obstructive pulmonary disease and multiple skin cancer removals. On a September 2005 report of admission to the Mercy Medical Center, it was noted that the Veteran had been a plumber for 29 years. In February 2006, G.A.F., D.O., the Veteran's family physician, reported that the Veteran's demise from small cell lung cancer had been very rapid. Dr. F. noted that other medical problems at the time of the Veteran's death included hypertension, hyperlipidemia, and COPD and that he had been encouraged to quit smoking. Dr. F. stated that the Veteran had other injuries and medical problems but that there was no sustainable treatment or the problems were self-limiting. In June 2006 and September 2010, Dr. F. reported that he had treated the Veteran from 1989 until his death in October 2005. Dr. F. stated that it was known that the Veteran had had 2 to 4 years of exposure to asbestos in the Navy but that he had not been aware of such exposure prior to his death. Dr. F. also stated that the most likely factors contributing to the Veteran's death were cigarette smoking and asbestos exposure. Dr. F opined that more than 51 percent of the Veteran's lung cancer had been caused by his exposure to asbestos in the Navy. In July 2006, E.J.O., III, M.D., one of the Veteran's treating oncologists stated that it had recently been brought to his attention that the Veteran had been exposed to asbestos in the Navy. Dr. O. noted that the possibility that the Veteran's lung cancer could have been caused or at least influenced by his asbestos exposure was significant. Later in July 2006, R.E.L., M.D., another of the Veteran's treating oncologists, opined that it was possible that the Veteran fatal non-small lung carcinoma with metastasis to the brain could have been the result of asbestos exposure. In May 2008, a VA physician reviewed the Veteran's claims file to determine whether there was a relationship between his exposure to asbestos in service and his development of his non-small lung carcinoma. It was noted that the ship to which he had been assigned in service was regarded as a ship with asbestos exposure due to its inherent design. The reviewing physician noted that such a statement could be applied to virtually any ship constructed prior to the 1970's. It was noted that the Veteran had been a farmer for most of his adult life. The reviewing VA physician noted the onset of the Veteran's lung carcinoma in 2005 and his rapid demise. He stated that the Veteran's smoking had begun in service. The reviewing VA physician also reviewed the statements from G.A.F., D.O.; E.J.O., III, M.D.; and R.E.L., M.D., as well as the recent medical literature. The VA physician noted that smoking was the major modifiable risk factor in the 160,000 cases of lung cancer a year. He reported that the risk factor for lung cancer caused by smoking was 90 percent and that of the 20 percent of lung cancer patients who were non-smokers, most were women. Of environmental cancers, such as those caused by smoking, 38 percent were adenocarcinoma like the Veteran had. Other environmental factors included asbestos exposure. A study of over 58,000 men with lung cancer, 524 had been caused by asbestos exposure. The reviewing VA physician noted that in his experience reviewing hundreds of cases of Veteran's claims, the Navy veterans who had been most heavily exposed and found to have clear-cut asbestosis, most were machinist's mates, boilermen, and steamfitters. Among them, the VA physician reported 3 instances of cancer - one bronchial cancer and two mesothelioma. In light of the Veteran's history, the medical literature, and the VA physician's experience, the VA physician opined that the Veteran's asbestos exposure in service had been minimal at worst. In this regard, he noted that the Veteran's chest X-rays and CT scans in 2005 had not shown any evidence of asbestosis. The VA physician recognized the opinions that asbestos exposure could be a contributing factor to the Veteran's lung cancer but emphasized that most of the evidence supported a finding that long-term, heavy cigarette smoking was the overwhelming cause of the Veteran's malignancy. Therefore, the reviewing VA physician concluded that it was less likely than not that the Veteran's fatal lung cancer was the result of his exposure to asbestos in service. Analysis During her August 2010 hearing before the undersigned Acting Veterans Law Judge, the appellant testified that the Veteran's fatal lung cancer was due, at least in part, to his shipboard exposure to asbestos in service. In support of her claim, she cited multiple statements from the Veteran's treating physicians. Therefore, she maintained that service connection was warranted for the Veteran's fatal lung cancer and, in turn, the cause of his death. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. The Board acknowledges the appellant is competent to give testimony about what the Veteran experienced after his separation from service. For example, she is competent to report when he was first diagnosed with lung cancer. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Federal Circuit Court discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau, supra. In this case, however, the etiology of cancer is beyond the knowledge of lay personnel. Moreover, she does not report symptoms or a diagnosis of lung cancer prior to the initial manifestations many years after service. Therefore, her opinion, without more is not dispositive. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). Moreover, evidence favorable to the appellant's claim that does little more than suggest a possibility that his illnesses might have been caused by in- service events is insufficient to establish service connection. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). In this case, the Veteran died in October 2005 after a brief illness with non-small lung carcinoma with metastasis to the brain. Although his treating oncologists stated that it was possible that such disorder had been the result of the Veteran's exposure to asbestos in service, it must be emphasized that evidence of "possible" causation is insufficient to establish service connection. In September 2010, the Veteran's treating family physician, G.A.F., D.O., stated that the primary cause of the fatal lung cancer was the Veteran's exposure to asbestos in the Navy. Even assuming that the Veteran was exposed to asbestos in service, Dr. F.'s opinion is of limited value, because he fails to explain the basis for his opinion. The value of the treating physicians' opinions is further reduced by the fact the evidence compiled during the Veteran's treatment for lung cancer does not even mention the involvement of asbestos exposure. It does show that the Veteran had a history of smoking and the August 29, 2005 treatment report from E.J.O., III, M.D., states that "The patient has developed non-small lung carcinoma as a result of chronic smoking." Moreover, when Dr. O. signed the death certificate, he indicated that tobacco had contributed to the cause of the Veteran's death. There was no mention of asbestos exposure. Indeed, the results of the workup and associated tests performed by or for Dr. O. in 2005, were negative for any evidence of the residuals of asbestos exposure. The foregoing evidence notwithstanding, the Veteran's claims file was reviewed by a VA physician to determine the nature and etiology of the Veteran's fatal lung cancer. From his own experience and his review of the medical literature, the VA physician noted that a majority of lung cancer cases were related to smoking and rarely to asbestos exposure. In this regard, he noted no evidence of asbestosis or the residuals of asbestos exposure in the Veteran's medical history including that recorded during his treatment for lung cancer in 2005. Therefore, he concluded that it was less likely than not that the Veteran's fatal lung cancer was due to his asbestos exposure in service. Unlike the Veteran's treating physicians, the VA physician reviewed the Veteran's claims file, including his service and medical history. In addition, the VA physician reported the reasons that he reached the opinion he did. Therefore, the Board finds the VA physician's opinion more full and complete than that of the Veteran's treating physicians. As such, the Board finds the VA physician's opinion to be of greater probative value. In so finding, the Board notes that the Court has explicitly rejected the broad application of the 'treating physician rule' that gives the opinions of treating physicians greater weight in evaluating veterans' claims. Guerrieri v. Brown, 4 Vet. App. 467, 417 - 473 (1993). Inasmuch as the inservice evidence is negative for the presence of the fatal lung cancer with metastasis, and inasmuch as the preponderance of the competent evidence of record is against a finding that the Veteran's inservice asbestos exposure contributed substantially or materially to cause his death, service connection is not warranted on that basis. However, that does not end the inquiry. The appellant also contends that the Veteran's smoking either started in service or was aggravated by easy access to cigarettes in service. Therefore, she contends that service connection is warranted on that basis. For claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C.A. § 1103(a) (West 2002). Despite that prohibition, the VA General Counsel has held that neither 38 U.S.C.A. § 1103(a) nor its implementing regulations at 38 C.F.R. § 3.300 (2012) bar a finding of secondary service connection for a disability related to use of tobacco products after service. See VAOPGCPREC 6-2003; 69 Fed. Reg. 25178 (2004). According to the General Counsel opinion, where secondary service connection for disability due to smoking is at issue, adjudicators must resolve (1) whether a service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would have occurred but for the use of tobacco products caused by the service-connected disability. If these questions are answered in the affirmative, the secondary disability may be service connected. VAOPGCPREC 6- 2003. Although the evidence shows that smoking contributed substantially and materially to cause the Veteran's death, the Veteran did not have had a service-connected disability of any kind. Thus, he could not meet the criteria that a service-connected disability had caused him to use tobacco products. As such, service connection is not warranted for his use of tobacco products; and, therefore, service connection for the cause of the Veteran's death is not warranted on that basis. In light of the foregoing discussion, service connection for the cause of the Veteran's death is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ KRISTI L. GUNN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs