Citation Nr: 1329591 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 08-37 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from June 1975 to February 1977. He died in November 2006. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2010, the Appellant appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the file. In August 2010, the Board remanded the case for further development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran died in November 2006, and the death certificate lists the cause of death as poorly differentiated adenocarcinoma of the lung; no other condition was listed as contributing to death. 2. The Veteran's fatal lung cancer was not incurred in service or was otherwise related to service. 3. The Veteran's service-connected disabilities at the time of his death were bilateral hearing loss and tinnitus and a service-connected disability is not shown to have caused or contributed materially in producing or hastening 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. §§ 1131, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for dependency and indemnity compensation, including the cause of death, notice under 38 U.S.C.A. § 5103(a) must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his death, (2) an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition, and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters, dated in May 2007 and in September 2010. The Appellant was notified of the type of evidence that was required to substantiate the claim for the cause of death. The Appellant was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that she could submit other records not in the custody of a Federal agency, such as private medical records. The notice included the provision for the effective date of the claim. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent of pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim; and of Hupp v. Nicholson, 21 Vet. App. 342 (2007) (an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition, and an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected, and a statement of the conditions for which a Veteran was service-connected at the time of his death). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice, the claim was readjudicated as evidenced by the supplemental statement of the case, dated in February 2010. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist In May 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) on the question of a causal relationship between the Veteran's cause of death and service. As the VHA expert considered the Veteran's medical history and described the disability in sufficient detail and provided a rationale to support the conclusions reached in the opinion, the Board finds that the VHA opinion is adequate to decide the claim of service connection for the cause of the Veteran's death. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). The Appellant and her representative were provided a copy of the VHA opinion and afforded the opportunity to submit additional evidence and argument. The Appellant responded in September 2013. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Appellant in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. When any veteran dies from a service-connected disability, the veteran's surviving spouse is entitled to dependency and indemnity compensation. 38 U.S.C.A. § 1310. A death will be considered to result from a service- connected disability when the evidence establishes that such disability, which is causally related to service, was either the principal or a contributory cause of the veteran's death. 38 C.F.R. § 3.312(a). For a service-connected disability to constitute a principal cause of death, it must be shown to be the primary cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially and materially to the veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312(c). Although there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c). Evidence The Veteran's adjudicated service-connected disabilities were bilateral hearing loss and tinnitus with a combined rating of 60 percent. The Veteran was rated totally disabled based on individual unemployability since June 1999. The death certificate shows that in November 2006 the Veteran died at home. The immediate cause of death was listed as poorly differentiated adenocarcinoma of the lung. No other condition was listed as contributing to the cause of death. The Veteran served on the USS Oklahoma from June 1975 to November 1976. The service treatment records contain no complaint, finding, history, treatment, or diagnosis of lung cancer. VA records show that the Veteran had a long history of smoking. In November 2005, the Veteran gave a 35 year history of smoking one pack of cigarettes a day. He stated the he worked in coal mines for 12 years and worked in a fiberglass factory. In June 2005, the Veteran was seen in follow-up for thyroid carcinoma, which was first diagnosed in 1997. In October 2005, the Veteran was treated for complaints of chest pain of three weeks' duration. X-rays showed right pleural effusion with right basilar atelectasis and a question of a nodular density in the right mid-lung field. In November 2005, a CT scan showed abnormal pleural and parenchymal changes in the right chest. In December 2005, it was noted that the Veteran had a history of both metastatic papillary thyroid carcinoma and parathyroid carcinoma with thyroidectomy and I-131 treatment. The Veteran underwent a thoracotomy with rib resection, partial lobectomy, and partial decortications. In January 2006 a pathology report for specimens taken in December 2005 were positive for poorly differentiated adenocarcinoma of the right pleura. The Veteran died of lung cancer in November 2006. In May 2013, a VHA expert in occupational medicine reviewed the Veteran's medical history regarding adenocarcinoma of the lung and thyroid cancer and the assertion that the Veteran was exposed to red lead pain, which contained either red chromate or zinc chromate, in service, which caused the lung cancer. The VHA expert stated that red lead, including applying or removing lead based paint, is not commonly associated with lung cancer, citing two case studies, finding no excess risk of lung cancer due to occupational exposure to organic lead or inorganic lead. The VHA expert stated that Chromium is associated with lung cancer, including lead or zinc chromate. The VHA expert cited epidemiologic studies on the relationship between exposure to hexavalent chromium, the most toxic form, and lung cancer and that there was strong relationship, which was best seen in productions workers. The VHA expert stated, however, the Veteran's case was not analogous to exposure to chromate or zinc chromate in production workers. The VHA expert stated production workers were exposed to raw materials on a nearly constant basis over their working life time, which was not expected in US Navy personnel. Further, the VHA expert explained that the Veteran's potential exposure was estimated to be approximately one year compared to the working lifetime of a production worker of 20 to 40 years. While being a member of the deckforce on the USS Oklahoma City would expose the Veteran to red lead paint, lead chromate, or zinc chromate, the amount of exposure was not analogous to that in the production of lead chromate or zinc chromate pigment. The VHA expert found no literature references supporting an increased risk of cancer of the lung with the type of exposure and absorption that would be expected in the Veteran, taking into account possible exposure with ship renovation or repair, including chipping, grinding, sanding, torching or reapplying red lead paint containing either lead chromate or zinc chromate pigments. The VHA expert expressed the opinion that the Veteran's long history of cigarette smoking was the proximate cause of the Veteran's lung cancer as opposed to a one year of possible exposure removing or applying red lead paint. Cigarette smoking was found to be the greatest risk factor for the development of lung cancer in the Veteran. The VHA expert concluded that the Veteran's poorly differentiated adenocarcinoma of the lung, non-small cell lung cancer, was not the type of cancer associated with exposure to red lead paint in the context of expected exposure as a member of the deck force. The VHA expert also concluded that it was less likely as not that the anticipated exposure to red lead paint as a member of the deck force caused the Veteran's lung cancer. Analysis The Appellant does not argue and there is no competent lay or medical evidence that the fatal lung cancer was affirmatively shown to have been present in service or that lung cancer manifested to a compensable degree within one year following separation from service in 1977, as lung cancer was not shown until 2005. The Appellant also does not argue and there is no competent lay or medical evidence that the service-connected disabilities, namely, bilateral hearing loss and tinnitus caused or contributed materially in producing or hastening the Veteran's death. The Appellant does assert that the Veteran's fatal lung cancer was caused by exposure to red lead paint and zinc chromate while the Veteran was serving aboard a naval ship. To the extent that the Appellant attributes the Veteran's cause of death to exposure to red lead paint and zinc chromate in service, the Appellant as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency is a question of fact, which is to be addressed by the Board. Although the Appellant is competent to describe symptoms she observed before the Veteran's final illness, the Appellant as a lay person is not competent, that is, not qualified through specialized education, training, and expertise to offer an opinion on medical causation. 38 C.F.R. § 3.159 (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.); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses.). The Appellant's opinion as a lay person is limited to inferences that are rationally based on her perception and does not require specialized education, training, or experience. As a lay person, the Appellant without specialized education, training or experience is not competent to infer based on personal observation alone that the Veteran's lung cancer was caused by exposure to red lead paint and zinc chromate in service. Although the Appellant is competent to relate contemporaneous medical diagnoses and symptoms that later support a diagnosis by a medical professional, there is no contemporaneous medical diagnosis or later diagnosis by a medical professional that relates the Veteran's death to an in-service injury, disease or event, including exposure to red lead paint and zinc chromate in service or that a service-connected disability caused or contributed to the cause of the Veteran's death. For these reasons, the Board rejects the Appellant's statements as competent evidence to substantiate the claim that the cause of the Veteran's death was related to exposure to red lead paint and zinc chromate in service. The only competent medical evidence addressing the question of whether the Veteran's death was related to exposure to red lead paint and zinc chromate in service is the opinion of a VHA expert in occupational medicine. The VHA expert reviewed the Veteran's history and the medical literature in rendering the opinion that the Veteran's exposure to red lead pain and zinc chromate was not analogous to studies that showed an association between lung cancer and exposure to chromate or zinc chromate in production workers. The VHA expert stated production workers were exposed to raw materials on a nearly constant basis over their working life time, which was not expected in US Navy personnel. The VHA expert stated that the Veteran as a member of the deckforce on the USS Oklahoma City would have been exposed to red lead paint, lead chromate, or zinc chromate, but the amount of exposure was not analogous to that in the production of lead chromate or zinc chromate pigment. The VHA expert found no literature references supporting an increased risk of cancer of the lung with the type of exposure and absorption that would be expected in the Veteran, taking into account possible exposure with ship renovation or repair, including chipping, grinding, sanding, torching or reapplying red lead paint containing either lead chromate or zinc chromate pigments. The VHA expert expressed the opinion that the Veteran's long history of cigarette smoking was the proximate cause of the Veteran's lung cancer as opposed to a one year of possible exposure removing or applying red lead paint. The VHA expert explained that the cigarette smoking was the greatest risk factor for the development of lung cancer in the Veteran. The VHA expert concluded that the Veteran's poorly differentiated adenocarcinoma of the lung, non-small cell lung cancer, was not the type of cancer associated with exposure to red lead paint in the context of expected exposure as a member of the deck force. The VHA expert also concluded that it was less likely as not that the anticipated exposure to red lead paint as a member of the deck force caused the Veteran's lung cancer. The Board finds the opinion of the VHA expert persuasive evidence, which opposes rather than supports the claim. As there is no competent lay or medical evidence in favor of the claim, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs