Citation Nr: 1328943 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 08-16 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Scott W. Golemon, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from November 1942 to September 1945. He died in November 2006. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. In June 2010, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in July 2010 and was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with the mandates of its remand. 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 November 2006; the amended death certificate lists transitional malignant ureter cancer as the cause of the Veteran's death. Rectal adenocarcinoma and bowel obstructions are listed as significant conditions contributing to death but not resulting in the underlying cause. 2. At the time of the Veteran's death, service connection had been established for bilateral hearing loss disability, posttraumatic stress disorder, peripheral neuropathy of the bilateral upper and lower extremities, tinnitus, and irritable bowel syndrome. 3. The Veteran died 61 years after separation from service; his transitional malignant ureter cancer was diagnosed more than 60 after separation from service. 4. The most probative competent evidence of record is against a finding that a service-connected disability was either the principal or a contributory cause of 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.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Hupp v. Nicholson, 21 Vet. App. 342 (2007). Notice was provided in March 2007 and May 2009. VA has a duty to assist the appellant in the development of the claim. The claim file includes VA and private medical records and correspondence, clinical opinions, written articles, and the statements of the appellant in support of the claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim for which VA has a duty to obtain. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that an adequate VA opinion is of record. The claim file includes a May 2013 opinion by a physician which is predicated on consideration of the Veteran's disabilities, his symptoms, his medical history, and pertinent medical literature. The rationale is more than adequate. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal criteria Cause of Death The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). 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, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). 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. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Service Connection on a secondary basis Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Analysis The Board has reviewed all of the evidence in the claim file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The appellant is claiming entitlement to service connection for the cause of the Veteran's death as related to his service-connected irritable bowel syndrome (IBS). The Veteran died in November 2006. At the time of the Veteran's death, service connection had been established for bilateral hearing loss disability, posttraumatic stress disorder, peripheral neuropathy of the bilateral upper and lower extremities, tinnitus, and IBS. An August 2006 record from the University of Texas, MD Anderson Cancer Center record reflects that the Veteran had a history of colon carcinoma diagnosed in 1989 for which he underwent chemoradiation followed by an abdominoperineal resection and a colostomy. The record reflects that the Veteran had urothelial carcinoma of the left ureter which appeared to be locally advanced. The Veteran's original death certificate, dated in November 2006 and signed by S. Gomez, MD, lists a single cause of his death: transitional malignant ureter cancer. In a letter dated in June 2008, Dr. Gomez stated that when she initially completed the Veteran's death certificate, she had cared for the Veteran for only two weeks in a hospice setting. She said she had not reviewed the Veteran's medical records at that time, but had since reviewed additional medical records at the request of the appellant. She stated that as a result of this review, she had amended the Veteran's death certificate to include rectal adenocarcinoma and complications of bowel obstruction to his cause of death. She stated, "[t]he information from his primary care provider in particular, helps to outline that his ureteral cancer in early 2006 was 'probably related to the ongoing history with colon cancer recurrences.'" The file now contains an amended death certificate, dated in June 2008 and signed by Dr. Gomez, which lists transitional malignant ureter cancer as the cause of the Veteran's death. Rectal adeno carcinoma and bowel obstructions are listed as significant conditions contributing to death but not resulting in the underlying cause. In November 2007 correspondence, a private physician, J.V. Peet, MD, opined that the Veteran had a long history of IBS, later developed colon cancer, then additional rectal cancers, and in 2006 developed a ureteral cancer. Dr. Peet opined that the ureteral cancer was probably related to the ongoing history with colon cancer recurrences. He opined that more appropriate diagnoses for the Veteran's death certificate would have been (1) IBS since the 1940s, (2) secondary colon cancer in 1989, (3) multiple recurrences of colon cancer from 1990 to 2003, and (4) ureteral cancer from 2005 to 2006. In a March 2008 medical opinion, a VA physician noted that he had reviewed the claims file. The physician opined that it was less likely than not that the Veteran's colon cancer was caused by IBS, and that it was less likely than not that the Veteran's ureteral cancer was caused by either IBS or colorectal cancer. The clinician noted that risk factors for colorectal cancer are known to be genetic and environmental factors, family history, familial polyposis, chronic ulcerative colitis, diabetes mellitus, status post cholecystectomy, alcohol, obesity, cigarette smoking, and prior pelvic irradiation. Risk factors for urothelial neoplasm were noted to also include cigarette smoking. The Board notes that the record reflects that the Veteran had "drunk heavily in the past" and that at one time he drank every day, including hard liquor. (See March 2005 VA examination and August 2006 University of Texas clinical record.) A July 1989 private record from Doctors Hospital reflects that the Veteran reported that he drinks an average of six drinks of liquor, usually Vodka, a day. A June 2005 VA examination record (neurology purposes) reflects that the Veteran had a history of alcohol abuse for approximately 50 years, but had quit approximately 10 years earlier. With regard to cigarette smoking, the Board notes that the August 2006 University of Texas clinical record reflects that the Veteran was a former smoker. In addition, a July 1989 clinical record from Doctors Hospital reflects that the Veteran smoked a pack of cigarettes a day, and a March 2008 VA record reflects that the Veteran had smoked for 50 years. An October 2012 VA opinion is of record. The report reflects that there are many factors that have been identified as potential causes of transitional cell carcinoma. These include "cigarette smoking, which more than quadruples the risk and contributes to as the vast majority of the cases, and occupational exposure to organic compounds, petroleum products, heavy metals, and asbestos. The same patients are at risk for bladder cancer and approximately 5-10 percent of patients with transitional cell kidney cancer will develop bladder cancer." The clinician stated that based on what was written on the revised death certificate, the clinician was unable to make a statement as to the probability of the Veteran's IBS causing or contributing substantially or materially to the Veteran's death. The Board notes, with regard to occupational exposure to heavy metals, that an August 2006 clinical record reflects that the Veteran was a retired metal worker. A March 2005 VA examination report reflects that the Veteran studied metallurgy in college, and worked in metal quality control product assurance, to include work for two steel companies. A May 2013 VA expert medical opinion is of record. The expert opined that it is not as likely as not that the Veteran's IBS was either the principal or contributory cause of his death. She also opined that it is not as likely as not that the Veteran's cancers worse caused by, or chronically worsened by, IBS. She opined that IBS does not cause bowel obstructions. She also opined that it is not likely that either of the patient's malignancies were related to active service. The expert's opinion reflects that she reviewed the entire claims file, to include the Veteran's extensive prior medical history, the previous medical opinions, and the amended death certificate. The expert stated, in pertinent part, as follows: There is a significant discrepancy between Dr. Peet's written statement that the Veteran had multiple recurrences of colorectal cancer between 1990 and 2003, all of which required removal (i.e. resection), and the patient's statements to multiple physicians in 2006 that he had not undergone any follow up colonoscopy exams between the time of his rectal cancer diagnosis in July 1989 and June 2006. No records were provided by Dr. Peet to support his statement that the Veteran had multiple recurrences of colorectal cancer and there are no records of additional surgical procedures being performed on the Veteran's remaining colon apart from a parastomal hernia repair in 1994. A colonoscopy done in June 2006 showed no evidence of recurrent colon cancer and the Veteran's CEA [carcinoembryonic antigen] level was normal. The cytology and biopsies obtained from the Veteran' s urine, left ureteral mass, and large retroperitoneal para-aortic mass all revealed urothelial (transitional cell) carcinoma, not metastatic adenocarcinoma consistent with a primary colorectal source. The urothelial malignancy diagnosed in 2006 was a new and historically different kind of cancer than the rectal cancer diagnosed 17 years earlier. The evidence supports that the Veteran was cured of his rectal cancer via AP resection of the rectum and distal sigmoid colon followed by post-operative chemoradiation in 1989. The Veteran's bowel obstructions involved the small intestine and on multiple occasions were felt to be most likely related to adhesions. Indeed, adhesions are a common cause of bowel obstructions and the Veteran was at risk for having adhesions given that he had previously undergone abdominopelvic surgical procedures and radiation therapy. . . . IBS is a functional disorder. . . . individual who have IBS can also develop other unrelated GI diseases such as bowel obstructions (a structural entitle usually diagnosed via abdominal x-ray, CT scan, or other radiographic technique. . . It is not at all uncommon for individuals to have more than one common GI malady or disease during their lifetime. . . . Reputable websites provided by Mayo Clinic, Cleveland Clinic and the American Cancer Society have excellent patient information documents on their websites which discuss IBS and clearly state that IBS does not increase an individual's risk for colon cancer (i.e. IBS isn't a trigger for or cause of colorectal cancer). This is in line with common teaching on this subject throughout my 25+ years as first a Gastroenterology Fellow at Mayo Clinic and subsequently as a Gastroenterology Consultant. . . . The clinician made the following pertinent conclusions: the Veteran's IBS did not cause his rectal cancer in 1989 or his urothelial malignancy in 2006. The Veteran was cured of his rectal cancer via AP resection and post-operative chemoradiation in 1989. The Veteran's recurrent small bowel obstructions in 1994, 1997, and 2006 were likely related to his adhesions. The Veteran was subsequently diagnosed with a new and historically different urothelial malignancy originating in his left ureter in 2006. There was no evidence of recurrent or metastatic colorectal cancer discovered following a thorough investigation in the summer of 2006. The Veteran died as the result of his urothelial malignancy in November 2006. The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule." See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The Board finds that that the May 2013 VA opinion is the most probative opinion of record. It includes consideration of the Veteran's past medical history and a thorough review of his disabilities, treatment, and outcome. The expert also cites to the Veteran's clinical records and medical authority to support her opinion. The opinions of Dr. Gomez and Dr. Peet do not discuss the Veteran's extensive history of smoking, which has been noted to be a risk factor for the Veteran's cancer, or his history of alcohol use, also noted to be risk factor. They also do not cite to medical authorities to support their opinions. Moreover, Dr. Gomez's opinion was based, in part, on the statement of Dr. Peet that the Veteran had had recurrent colon cancer; however, as noted by the 2013 VA opinion, the clinical evidence of record does not reflect recurrent colon cancer. The record reflects that the Veteran was diagnosed with rectal cancer in July 1989 with no treatment and no recurrence. A March 2005 VA mental health examination report reflects that the Veteran reported a past medical history of "cancer of the colon in 1989, and [he] underwent radical resection of the entire colon. He has had a colostomy since then. He had no recurrence." A June 2005 VA examination report for neurology purposes reflects that the Veteran's past medical history included colon cancer with resection in 1989; no recurrences were noted in the examination report. A June 2006 record from Dr. Maggat states that the Veteran reported that he never had a follow-up colonoscopy since his surgery for rectal cancer. An August 2006 clinical record from University of Texas reflects that the Veteran reported that his colon cancer had been treated in 1989 and it was in remission. Thus, the Board finds that the opinions of Dr. Peet and Dr. Gomez are based on unsupported and incorrect facts. The Board also notes that at the Board hearing, the appellant's attorney contended that the Veteran had a chronic history of taking laxatives for constipation and that this long term use of laxatives could have been a factor in the cause of his death. (See Board hearing transcript pages 16 and 17.) The Veteran's spouse may be competent to state that the Veteran took laxatives; however, the clinical evidence of record is against a finding of chronic use of laxatives by the Veteran prior to his diagnosis of cancer in January 2006. The Board finds that the clinical records, made based on contemporaneous statements by the Veteran, and for purposes of diagnosis and treatment, are more probative than the lay statements made by the appellant made years later. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (the Board may not ignore testimony simply because someone is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). A March 2005 VA examination report reflects that the Veteran reported "pain in his stomach after he eats certain foods, and frequent indigestion and diarrhea." The report is negative for any complaints of constipation or chronic laxative use. The report reflects that the Veteran stated that he had had diarrhea ever since the end of World War II. The diagnosis was chronic diarrhea. As the Veteran was being examined for service-connection for IBS (stomach, intestine, and duodenum problems), the Board finds it would have been reasonable for him to have noted constipation and chronic use of laxatives, if such were the case. A June 20, 2006 record from Dr. Hester reflects that the Veteran had complaints of left abdominal pain and constipation; it was noted that his current medications were "aspirin and Vicodin prn, no herbal supplements or other medications or blood thinners." The report is negative for the use of laxatives. A June 26, 2006 clinical record from Dr. Maggart reflects that the Veteran denied any constipation. His medications were noted to be Vicodin and aspirin. A July 2006 private record from Dr. M. Harrel reflects that the Veteran reported a one week history of constipation. It was noted that he had been treated 2 1/2 weeks earlier for a similar problem and had been placed on Lactulose, which had been allowing him to have normal bowel movements until the prior week. The Veteran was diagnosed with transitional cancer on July 19, 2006 (July 19, 2006 biopsy findings were consistent with a high-grade urothelial carcinoma in the ureter.) An August 2006 clinical record reflects that the Veteran had constipation; but reflects that the Veteran admitted "to not taking stool softeners and laxatives regularly." (See August 2006 clinical record from University of Texas, MD Anderson Cancer Center.) August 2006 records reflect that the Veteran reported constipation and laxative use at that time; however, this was after the Veteran was found to have a tumor in his ureter and after having been prescribed Lactulose in June/June 2006. In sum, the record is against a finding that the Veteran had chronic use of laxatives, due to his service-connected IBS, or that he had chronic use of laxatives prior to June/July 2006 when he was placed Lactulose and diagnosed with ureter cancer. Importantly, none of the clinical opinions of record reflects that the Veteran's use of laxatives was a cause, or contributory factor, to the Veteran's death. In sum, the most probative clinical evidence of record is against a finding that the Veteran's cause of death was causally related to, or substantially contributed by, active service or a service-connected disability. The appellant has not been shown to have the experience, training, or education necessary to make an etiology opinion as to the cause of the Veteran's death. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the causes of transitional malignant ureter cancer and the relationship between it and other disabilities. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The claims file includes evidence that the Veteran was a prisoner of war of the German government, in Austria, during World War II. The Board has considered the provisions of 38 C.F.R. §§ 3.307 (a)(5) and 3.309(c) but finds that service connection for the cause of the Veteran's death is not warranted under the presumptions of those regulations. Transitional malignant ureter cancer, rectal adenocarcinoma, and bowel obstructions are not disabilities listed under those provisions. The Board appreciates the Veteran's honorable service and sacrifices. The Board is also sympathetic to the appellant's situation as a widow; however, the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for the cause of the Veteran's death must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs