Citation Nr: 1326146	
Decision Date: 08/16/13    Archive Date: 08/26/13

DOCKET NO.  08-25 379	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

The Appellant-widow


ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from September 1967 to January 1968 and on active duty (AD) from November 1990 to June 1991 that included service from January to May 1991 in Operation Desert Shield/Desert Storm during the Persian Gulf War.  He also had additional service in the Army Reserve National Guard.  He died in September 2006.  The appellant is his surviving spouse.  She appealed to the Board of Veterans' Appeals (Board/BVA) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In support of her claim the appellant testified at a hearing at the RO in April 2011 before a local Decision Review Officer (DRO).  A transcript of the hearing is of record.

In December 2011, the Board remanded the claim to the RO via the Appeals Management Center (AMC) to provide the appellant-widow notice of what was needed to substantiate her claim and to obtain a medical nexus opinion concerning whether a service-connected disability either caused or contributed substantially or materially to the Veteran's death.  Because, however, the Board determined the medical opinion obtained was inadequate to decide the claim, the Board additionally requested a medical expert opinion in April 2013 from a pulmonologist affiliated with the Veterans Health Administration (VHA).  The designee provided his medical expert opinion in June 2013.  That same month, the Board sent the Appellant-widow and her representative a copy of the opinion and gave them 60 days to submit additional evidence and/or argument in response to it.  See 38 C.F.R. § 20.903 (2012).  The representative submitted an additional statement (Hearing Memorandum) in July 2013, and the Appellant-widow indicated 

on her July 2013 medical opinion response form that she had no further argument or evidence to submit and, therefore, wanted the Board to immediately proceed with the adjudication of her appeal.


FINDINGS OF FACT

1.  The Veteran died in September 2006 and the death certificate shows the immediate cause of his death was non-small cell lung cancer with underlying causes of sepsis and respiratory failure.

2.  At the time of his death, service connection was in effect for multiple-joint pain exclusive of the right knee due to undiagnosed illness, rated 10-percent disabling.

3.  A service-connected disability was neither the principal nor contributory cause of his death.

4.  The evidence instead shows that his ultimately terminal lung cancer did not first manifest during his service or in the first year after separation from active duty, and the most probative (meaning competent and credible) evidence indicates the fatal lung cancer and other conditions noted on his death certificate that ultimately led to his death were unrelated to his military service - more so the result, instead, of his chronic smoking.


CONCLUSION OF LAW

A disability incurred or aggravated in service or that may be presumed to have been incurred in service did not cause or contribute substantially or materially to the Veteran's death.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), upon receipt of a complete or substantially complete application, VA has duties to notify and assist a claimant 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, 3.326(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 obtain; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO as the Agency of Original Jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If, however, for whatever reason it was not or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to rectify ("cure") the timing defect in the provision of the notice since the intended purpose of the notice is preserved, rather than frustrated, in that the claimant is still provided opportunity to participate meaningfully in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 


Additionally, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court held that a claim of entitlement to service connection consists of five elements:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date.  So notifying the claimant of what evidence is necessary to substantiate the claim under U.S.C.A. § 5103(a), the first notice element in Quartuccio v. Principi, 16 Vet. App. 183 (2002), requires notice of all five of these elements, so including the "downstream" disability rating and effective date elements.  See Dingess at 486; Quartuccio, 16 Vet. App. at 187.

When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies.  See 38 U.S.C.A. § 7261(b)(2) (West 2002).  The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant, not VA, bears the burden of proof of not only establishing there is a VCAA notice error but also, above and beyond that, of showing the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, so including for cause of death, § 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).  But while there are these particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a pre-decisional adjudication of the claim prior to providing a § 5103(a)-compliant notice.

Here, only some, not all, of the relevant notice in this instance preceded the initial adjudication of the claim in November 2007.  Nevertheless, as explained, this timing error may be "cured" by issuance of a fully compliant notice followed by readjudication of the claim, including as mentioned in an SOC or SSOC.  See again Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).  And the VCAA duty to notify was satisfied by way of a March 2007 letter in combination with a more recent December 2011 letter that, together, fully addressed all notice requirements and was consistent with the Court's mandates in Hupp.  The letters informed the Appellant-widow of the evidence needed to substantiate her claim and of her and VA's respective obligations in obtaining this supporting evidence.  Therefore, she was "provided the content-complying notice to which she was entitled."  Pelegrini, 18 Vet. App. at 122.

Furthermore, the claim was readjudicated and a September 2012 SSOC.  Consequently, the Board finds that the duty to notify has been satisfied inasmuch as her claim has been reconsidered since providing all required notice.  38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).

As for the additional duty VA has to assist her in the development of the claim, the Veteran's service treatment records (STRs) are in the claims file, as are the pertinent records of his evaluation and treatment since service.  Also obtained were medical nexus opinions concerning whether there was any correlation between his death and military service, and the Appellant-widow was additionally afforded a DRO hearing pursuant to her request. 

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) of the Board or local DRO at the RO chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position.  To this end, during the hearing, the presiding DRO noted the issue on appeal but did not suggest any evidence that was lacking or would help substantiate this cause-of-death claim.  But in her testimony and pleadings, the Appellant-widow has evidenced her actual knowledge of the type of information and evidence needed to substantiate her claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).  Moreover, neither she nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) in the conducting of that hearing, nor have they identified any prejudice in the conducting of that hearing.  And in any event, to the extent there was a deficiency in suggesting the submission of evidence, the Board finds that it did not prejudice her claim.  In Bryant, 23 Vet. App. at 498-99, the Court held that, although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit.

Consider also that the Board remanded this claim after that hearing to provide the appellant-widow corrective notice of the type of evidence needed to substantiate her claim (i.e., Hupp notice) and to obtain a medical nexus opinion specifically insofar as whether the Veteran's death was related to disability incurred in or aggravated by his military service.  Moreover, when the Board subsequently found that opinion lacking, including in terms of sufficiency of explanation, the Board sought and obtained an additional opinion from a medical expert (pulmonologist) to further help in deciding this claim.  So given the development that has occurred during the pendency of this appeal, including providing proper VCAA notice and obtaining additional evidence such as the medical nexus opinions mentioned, the Board finds that any perceived or actual deficiency in the DRO hearing was ultimately 
non-prejudicial.  See Id.  Furthermore, the appellant having been fully informed of what evidence was needed to substantiate her claim and of the medical expert's opinion, of which she received a copy, since has indicated in response in July 2013 that she had no additional information or evidence to submit.  She therefore indicated she wanted the Board to immediately proceed with the adjudication of her appeal.

Since the record reflects compliance with the Board's remand directives, certainly substantial compliance, no further development of the claim is required.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A claimant is entitled to compliance with remand directives, and the Board itself commits error, as a matter of law, in failing to ensure compliance).  But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-4 (1999) (indicating situations when it is acceptable to have "substantial", even if not "exact" or "total", compliance with remand directives).

All necessary development has been accomplished, and therefore appellate review of this claim may proceed without undue prejudice.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Neither the Appellant-widow nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable.  Hence, no further notice or assistance is required to fulfill VA's duty to assist 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).  The Board therefore is proceeding, as requested, with the adjudication of the claim.

Analysis

According to governing statutes and regulations, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).

The term active military service includes AD and any period of ACDUTRA during which the individual concerned was disabled or died from a disease or an injury incurred in or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, though not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. § 101(24), 106; 38 C.F.R. § 3.6(a).

Reserve and National Guard service generally means ACDUTRA and INACDUTRA.  ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year.  It can also refer to the Reservist's or Guardsman's initial period of training.

INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d).  Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training.  These drills are deemed to be part-time training.

So to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled or died from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA.  38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., AD) does not obviate the need for him to establish that he is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA.  Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998).

Similarly, in order for a claimant to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled or died from an injury, but not disease, incurred or aggravated during INACDUTRA.  Id; see also Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).

If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, are service connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Continuity of symptoms is required, however, where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  Id.  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of 
post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the 
post-service symptomatology.  Clyburn v. West, 12 Vet. App. 296, 302 (1999).  

However, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (§ 3.303(b) does not have any effect beyond affording an alternative route for proving service connection for chronic diseases identified in § 3.309(a)).

But having said that, service connection may be granted for any disease diagnosed after discharge from service, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

So, in this particular instance, establishing entitlement to direct service connection requires:  (1) competent and credible evidence confirming the Veteran had the now claimed about disability or, at the very least, showing he did at some point prior to his death; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).  See also Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009)).

But aside from the general statutes and regulations providing for service connection, the law also provides for compensation for a Persian Gulf War Veteran with a qualifying chronic disability that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period.  38 U.S.C.A. § 1117 (West 2002).


A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of any of the following): (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms, i.e., chronic fatigue syndrome (CFS), fibromyalgia, irritable bowel syndrome (IBS); or (3) any diagnosed illness that VA determined by regulation to warrant presumptive service connection.  38 U.S.C.A. § 1117 (a)(2); 38 C.F.R. § 3.317(a)(2)(i) (2012).

Regulations clarify that there must be "objective indications of a qualifying chronic disability," which include both "signs" in the medical sense of objective evidence perceptible to an examining physician and other, non-medical, indicators that are capable of independent verification.  38 C.F.R. § 3.317 (a)(1) and (3).  A disability is considered "chronic" if it has existed for six months or more or if the disability exhibits intermittent episodes of improvement and worsening over a six-month period. 38 C.F.R. § 3.317 (a)(4).  Signs or symptoms that may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders.  38 U.S.C.A. § 1117(g); 38 U.S.C.A. § 3.317(b).

The claimed chronic disability must have been manifest during active service in the Southwest Asia Theater of operations or manifest to a compensable degree by December 31, 2016.  Effective October 16, 2012, VA adopted an interim final rule that was published in the Federal Register on December 29, 2011.  76 Fed. Reg. 81,834.  The interim final rule amended 38 C.F.R. § 3.317 regarding compensation for disabilities suffered by Veterans who served in the Southwest Asia Theater of Operations during the Persian Gulf War.  The amendment revised § 3.317(a)(1)(i) to extend the period during which disabilities associated with undiagnosed illnesses and medically unexplained chronic multi-symptom illnesses must become manifest in order for a Veteran to be eligible for compensation.  The period was extended to December 31, 2016.  In this final rulemaking, VA is also correcting the section title of § 3.317.  The provisions of this final rule shall apply to all applications for benefits that are or have been received by VA on or after December 29, 2011, or that were pending before VA, the Veterans Court (CAVC), or the Federal Circuit Court on December 29, 2011.

Compensation is not payable, however, if there is affirmative evidence that:  1) an undiagnosed illness was not incurred during active military service, 2) an undiagnosed illness was caused by a supervening event or condition, or 3) the illness is the result of the Veteran's willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c) (2012).  The disability must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory test.  38 C.F.R. § 3.317(a)(1)(ii).

To establish service connection for the cause of his death, the evidence must show that disability incurred in or aggravated by his service either caused or contributed substantially or materially to his death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.  A service-connected disability will be considered as the principal (primary) cause of death when the 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 contributory cause of death is inherently one not related to the principal cause.  In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death.  It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection.  38 C.F.R. § 3.312(c).

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).

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).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether such evidence is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is incapable of opining on matters requiring medical knowledge.  In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).


On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the claimant, but also the claimant's demeanor when testifying at a hearing when he/she has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).


Since this claim at issue is for cause of death, the Board's analysis will focus on whether the Veteran's service-connected disability caused or contributed substantially or materially to his death.  At the time of his death, service connection was only in effect for multiple-joint pain exclusive of the right knee due to an undiagnosed illness, which was rated as 10-percent disabling.  Significantly, this disability did not affect a vital organ.  See 38 C.F.R. § 3.312(c)(2).  There is no probative (meaning competent and credible) evidence suggesting a nexus or correlation between his joint pain and any of the conditions listed on his death certificate that either caused or contributed substantially or materially to his death.  Indeed, the Appellant-widow does not assert this type of causation.  Therefore, service connection is not warranted on this basis.

Instead, the appellant-widow has alternatively asserted that the Veteran's death was due to environmental hazards or immunization shots during his AD service during the Persian Gulf War.  See her December 2007 notice of disagreement (NOD), August 2008 substantive appeal (on VA Form 9), and April 2011 hearing transcript.  As to whether any of the conditions that caused or contributed substantially or materially to the Veteran's death were related to his military service, the most probative evidence is against this notion.

To the extent the appellant asserts the Veteran's death was related to his Persian Gulf War service, this assertion was only in the context of exposure to environmental hazards; she did not claim nor does the evidence indicate that an undiagnosed illness was involved.  Therefore, the Board finds no basis to apply the provisions of  38 C.F.R. § 3.317 because the disorders that caused or contributed to death were diagnosed (rather than undiagnosed) conditions.


In looking at the Veteran's STRs, including those specifically from his ACDUTRA and AD periods, he was shown to have had pneumonia in October 1967.  Initially, the records indicate he was admitted for an upper respiratory infection (URI) and the diagnosis was R/O [rule out] pneumonia.  A clinical record cover sheet shows the diagnosis was pneumonia, left lower lobe, organism and cause not specified.  See STRs dated in October 1967.

AD STRs include a November 1990 medical history report that was negative for respiratory or related problems.

The report of a Southwest Asia Demobilization/Redeployment Medical Evaluation dated in May 1991 shows the Veteran denied receiving any treatment and of having a cough or sinus infections.  He did not believe he was exposed to chemical or germ warfare and he did not take any chemical agent prophylaxis.  A medical examination report dated that same month found no lung abnormality.  An associated medical history report shows he had pneumonia at Ft. Jackson in 1968.  Other than that, he denied having had shortness of breath, chronic cough, or any other respiratory problems.

Aside from these periods of ACDUTRA and AD, there are other STRs that include periodic examinations and medical history reports, which revealed no lung abnormality or history of respiratory disorders.  See service examinations and medical history reports dated in January 1968, June 1972, January 1982, April 1986, and August 1990.  The only respiratory problem noted was a URI in May 1983.


A Comprehensive Clinical Evaluation Program (CCEP) Patient Questionnaire completed in September 1995 shows the Veteran indicated he then currently averaged smoking 10 to 12 cigarettes per day and that in the past he had smoked an average of 20 cigarettes a day.  He indicated that, while in the Persian Gulf, he was exposed to smoke from oil fires, cigarette smoke from others, CARC (chemical agent resistant compound) paint, other paints or petrochemical substances, other solvents and/or petrochemical substances, fumes from tent heaters, diesel and/or other petrochemical fuel, personal pesticide use, drugs (pyridostigmine) used to protect against nerve agents, and immunizations against botulism and anthrax.  The questionnaire also included symptoms, but he reported no shortness of breath or other respiratory problems.

His post-service medical records did not reflect any lung problems immediately after or even several years after his active duty.

During a May 1995 VA general medical examination, there was no cough or expectoration; his diaphragm had full and symmetrical excursion; and his lungs were clear.  His exercise tolerance test was only limited due to his ankle, not his breathing.

During a September 1995 VA examination, he reported smoking 1 package of cigarettes a day for the past 20 years.  A review of systems showed he had no unexplained cough, sputum production, hemoptysis, wheezing, asthma, bronchitis, emphysema, tuberculosis (TB), or pleurisy.  His IPPDs per Army physicals were always negative.  His most recent chest X-ray was 1 year earlier and was normal.  On examination, his lungs had clear vesicular breath sounds without rales, rhonchi, or wheezing.  The assessment included tobacco use.


So based on his medical history up to that point, the record shows there was no indication of lung cancer during service or during the first post-service year.  Therefore, service connection for lung cancer on a presumptive basis is not available since his cancer (malignant tumor) did not manifest to a compensable degree within 1 year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

In fact, to the contrary, he was not shown to have any of the medical conditions that caused or contributed substantially or materially to his death until many years after service.  In the appropriate circumstance, such as here, the Board may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). 

Consider also that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which, as mentioned, is an alternative means of linking the condition now claimed to service, although applying to lung cancer since it is a condition listed in § 3.309(a) as "chronic", nonetheless does not apply in this particular instance inasmuch as there was no indication or notation of lung cancer during the Veteran's service.  In other words, this notion of continuity of symptomatology only applies when a condition was first "noted" in service, which did not occur here.

The Veteran's lung cancer was not detected until 2006, when he was hospitalized from April to May 2006.  The records generated during his hospitalization provided a history of his illness, which apparently had started in March 2006 with URI symptoms that were treated with antibiotics.  He later became dyspneic and was given bronchodialator and multiple courses of antibiotics with no improvement of his symptoms.  CT scans of his chest revealed a mass in his right upper lobe area, pneumothorax of 10 percent, and atelectasis of the right upper lobe and a mass, possibly in the bronchial and right upper lobe.  There was also evidence of paratracheal adenopathy.  His personal history was shown to include smoking a package of cigarettes a day for several years.  These records also show a biopsy was performed.  His discharge summary contains diagnoses of moderately differentiated squamous cell carcinoma, right lung; chronic obstructive pulmonary disease (COPD); post obstructive pneumonitis/pneumonia; and tobacco use.  Other consultation reports date the onset of his symptoms back to February 2006 with a bout of bronchitis and heavy coughing.  He had a history of heavy smoking and continued to actively smoke.  The records contain assessments that include 
non-small cell lung cancer with post-obstructive pneumonia and COPD/cigarette smoking.  One consultation report stated he most likely had carcinoma of the right lung from the cigarette smoking.

He completed a 6-week course of treatment and clinically he was dramatically improved and his lesion had shrunk down significantly.  See the July 2006 private treatment record.  However, in September 2006 he was readmitted with his last cycle of treatment noted to have been in August 2006.  His social history indicated he had a greater than 80 pack year history of cigarette smoking.  The assessment included dyspnea.  The differential diagnoses included dyspnea secondary to community acquired pneumonia, pulmonary embolus, COPD, or related to his cancer.  X-rays were unchanged since the ones taken a few days earlier, but he had left-sided infiltrates that were not present in April 2006.  A CT scan revealed multiple infiltrates mainly on the left side, diffuse pulmonary interstitial.  

The assessment indicated the left-sided infiltrates, which were new, and pneumonia was suspected although the specific type was uncertain.  There was no improvement with antibiotics and atypical organisms or fungus was considered a possibility.  Another assessment noted respiratory failure, episode of hyperventilation, pneumonia, and lung cancer.  He died that same month while hospitalized.  The death summary indicates his condition declined during his hospitalization with worsening respiratory status and ultimately mechanical ventilation.  His oncologist was very concerned regarding progression of the malignancy due to the symptoms.  A lower left lung wedge resection and biopsy was performed that did not reveal any malignancy or infection cause, but suggested "sarcoidosis".  He was noted to have suspected pneumonia with a negative culture.  Because the Veteran had not wanted prolonged mechanical support the decision was made to withdraw care after being supported for 3 weeks.  His hospital course was complicated by respiratory failure, which was felt to be due to bilateral pneumonia versus sarcoid or as a result of his lung cancer.

His death certificate shows he died in September 2006 and that his lung cancer, which was listed as the immediate cause of death, only dated back to 4 months prior to his death.  Medical conditions listed as the underlying cause of death were pneumonia, which was of 3 weeks' duration; sepsis that was of 1 week duration; and respiratory failure, which also was of 3 weeks' duration.

In compliance with the Board's remand instructions an opinion was sought regarding the cause of the Veteran's death in relation to his military service.  Initially, an opinion was offered by a nurse practitioner who did not have the claims file available to review; therefore, she could not offer an opinion.  However, in May 2012 she was able to review the Veteran's claims file and offer an opinion, but which was inconclusive.  She stated that, according to medical literature, 
non-small cell lung cancer was caused by tobacco smoking and that tobacco smoking caused approximately 90 percent of the lung cancer cases.  She also noted links between asbestosis exposure, radon, petroleum based chemicals, beryllium, nickel, copper, choromium, cadium, and diesel exhaust to cancer.  With multiple possible etiologies and none more prevalent that another, she could not resolve the matter without resorting to mere speculation.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data.  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.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative").  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, 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.  And this remained unclear in this particular instance.

The Court has held that, once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision").  See, too, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data."  
See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009).  Therefore, it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis.  Daves v. Nicholson, 21 Vet. App. 46, 51 (2007).  When the record leaves this issue in doubt, it is the Board's duty to remand for further development.  The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination.  See Wallin v. West, 11 Vet. App. 509, 514 (1998).

The Jones Court acknowledged that an "examination is not inadequate merely because the examiner states he or she cannot reach a conclusion without resort to speculation."  Jones, 23 Vet. App. at 391.  The Court also found that "VA is not bound to proceed through multiple iterations of medical opinions until it declares that no further examinations would assist the claimant[,]" which, in the Court's view, was "inherent in a finding that the duty to assist has been fulfilled."  Id.  The Court in Jones explained that the duty to assist, rather, requires VA to obtain all relevant information that may reasonably be obtained before the Board may rely on a VA medical examiner's opinion to deny a claim and enumerates the steps under which the duty to assist may apply.  Id., at 388.  The Court first found that the duty to assist applies when "an examiner specifically identifies additional information that would facilitate a more conclusive opinion."  The Court then found that "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion."  Id., at 389.

The Court in Jones went on to point out that, while an opinion that diagnosis or etiology was not possible without resorting to speculation was just as much a medical conclusion as a firm diagnosis or a conclusive opinion, a bald statement that it would be speculative to render an opinion as to etiology or diagnosis was ambiguous and, thus, it must be clear that the examiner has considered "all procurable and assembled data," by obtaining all relevant tests and records that might reasonably illuminate the medical analysis.  Id., at 390.

Therefore, here, rather than again remanding this claim and possibly not obtaining a more definitive opinion on this determinative issue of causation, the Board instead in April 2013 elected to obtain an expert opinion from a VHA medical specialist (pulmonologist).  38 U.S.C.A. § 7109; 38 C.F.R. § 20.901.

In response, in June 2013 the Chief of the Pulmonary Section of the VA Boston Healthcare System reviewed the claims file for the purpose of assessing whether the Veteran's military service had caused or contributed substantially or materially to his death.  The commenting physician noted the Veteran's military experience and exposure, and the course of the illness that resulted in death.  He stated that the Veteran's only significant pre-disposing factor for lung cancer was a long history of cigarette smoking and pointed out that prolonged cigarette smoking was the major risk factor for lung cancer.  The lung cancer and subsequent treatments with chemotherapy and radiation pre-disposed him to pneumonia, sepsis, and respiratory failure.  Granulomatous inflammation was described in the lung biopsy prior to his death.  The relation of this process to the previously identified histoplasmosis or to possible sarcoidosis was unclear.  So based on his review, this examiner opined that the Veteran's military service, to specifically include his period of ACDUTRA and AD, was unlikely to be causally related to his death.  This examiner added that the environmental exposures in service also were unlikely to have contributed to the medical conditions that resulted in the Veteran's death.  The environmental exposures he may have experienced during the Persian Gulf War over a period of approximately 5 months, in the estimation of this commenting VHA medical expert, were too brief to predispose to subsequent lung cancer or the other described lung ailments.

This VHA medical expert's opinion, especially since for the most part uncontroverted, is highly probative against this cause-of-death claim since the opinion was predicated on an accurate factual predicate or premise and because he considered the Veteran's pertinent medical history and, most importantly, comprehensively discussed the underlying rationale of the opinion, which is where most of the probative value is derived.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (wherein the Court discusses, in great detail, how to assess the probative weight of medical opinions and the value of reviewing the claims file.  The Court holds that claims file review, as it pertains to obtaining an overview of the claimant's medical history, is not a requirement for medical opinions.  The Court added, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.").  The adoption of an expert medical opinion, such as this VHA opinion, may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if, as here, the expert fairly considered the material evidence seemingly supporting the claimant's position.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995).

As is true with any piece of evidence, the credibility and weight to be attached to the medical opinions are within the province of the Board as adjudicators.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71, 73 (1993).  See, too, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence).  It is entirely within 

the Board's province to give more probative weight to certain pieces of evidence than others.  See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).  The Board is mindful that it cannot make its own independent medical determination and there must be plausible reasons for favoring one medical opinion over another.  Evans at 31; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Here, though, there are legitimate reasons and bases for accepting this VHA examiner's opinion as highly probative and, indeed, the most probative in this instance.

In pertinent part, the commenting physician found the underlying medical conditions, pneumonia, sepsis, and respiratory failure, were due to the lung cancer and its treatment - so complications.  As for the lung cancer, itself, he provided an adequate explanation of why it was not related to environmental exposure and, in fact, he found the Veteran's well-documented long history of cigarette smoking a more likely cause for the pre-disposition of lung cancer.

The only medical evidence the appellate has submitted in support of her claim is a December 2007 letter from medical professionals at Montgomery Cancer Center.  This letter affirms the type of cancer the Veteran had, but noted his death was actually caused by respiratory failure secondary to pneumonia.  Even with this evidence, it does not establish a nexus between the pneumonia and his military service.  While he was diagnosed once with pneumonia in service in October 1967, the letter did not establish a nexus between the two episodes of pneumonia.  Conversely, the VHA medical expert did in fact address the etiology of the pneumonia that contributed to death and explained that it was related to the Veteran's cancer treatment, not military service, so not any pneumonia he earlier had while in service.  Thus, the appellant's assertion of causation is unsupported by the medical evidence.

Having said that, the Board also considered the appellant's lay statements in support of her claim.  The particular circumstances of this case are not the type of situation discussed in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) and a number of other related cases or progeny holding that lay evidence may be sufficient to establish this required nexus (i.e., link) between the Veteran's military service and his disability and/or death.  There is no evidence the appellant has any medical training or expertise.  Although lay persons are competent to provide opinions on some medical issues, see Kahana, supra, as to the specific issue in this case, whether the Veteran's ultimately terminal lung cancer was related to his military service, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue requiring expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

As his death involved several medical conditions, a long history of smoking, exposure to environmental hazards, and a lengthy period between his service and the onset of the disorders that eventually caused and contributed to his death, it presents a fare more complicated etiological picture that can be competently addressed by a mere lay person.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  Therefore, in the absence of supporting medical evidence, she simply does not have or, at least, has insufficient evidence to refute the medical findings noted above.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom, i.e., need for supporting medical nexus evidence, in a claim for rheumatic fever).


Recognizing that the VHA medical expert implicated the Veteran's chronic cigarette smoking as the cause for his ultimately fatal lung cancer, the Board must also point out that for a claim, as here, filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability (or, here, death) resulting from injury or disease attributable to chronic smoking.  38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2012).

For these reasons and bases, the preponderance of the competent and credible evidence is against finding a medical condition that caused or contributed substantially or materially to the Veteran's death was related to his military service.  As there is no reasonable doubt to resolve in the appellant's favor, the claim must be denied.  38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).


ORDER

The claim of entitlement to service connection for the cause of the Veteran's death is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs