Citation Nr: 1336353 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-00 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to June 1990. He died in September 2006, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The appellant testified before the undersigned Veterans Law Judge at a videoconference hearing in June 2011. A transcript of the hearing has been associated with the claims file. A review of the Veteran's Virtual VA claims folder and Veterans Benefits Management System electronic folder show that they contain only evidence that is duplicative of that contained in the paper claims file. The appellant's claim was previously denied by the Board in a June 2012 decision. The appellant appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a November 2012 Order, the Court vacated the portion of the June 2012 Board decision denying service connection for the cause of the Veteran's death and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). 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 had active military service from December 1968 to June 1990, including service in the Republic of Vietnam during the Vietnam era from January 1970 to December 1970. 2. The Veteran died in September 2006, and the appellant is his surviving spouse. 3. The Veteran's death certificate lists the immediate cause of death as a malignant neoplasm of the brain; there are no other causes or significant conditions listed. 4. At the time of his death, the Veteran was not service-connected for any disabilities. Service connection was later granted for type II diabetes mellitus for accrued benefits purposes. 5. A disability incurred in service was the principal cause of the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have been met. U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). However, given the fully favorable decision contained herein, no discussion of the duties to notify and assist is necessary. Legal Criteria and Analysis The appellant contends that service connection is warranted for the cause of the Veteran's death. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of 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. As tumors, malignant, or of the brain or spinal cord or peripheral nerves, are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either (1) the principal (primary) cause of death or (2) a contributory cause of death. To be considered a principal (primary) cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to a veteran's death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). A claimant bears the "'evidentiary burden' to establish all elements of [the] claim, including the nexus requirement." Fagan v. Shinseki, 573 F. 3d 1282, 1287-88 (2009). The Board's duty is to consider all pertinent medical and lay evidence of record and assign probative weight to that evidence based on its credibility and competency. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also 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"). A claimant "is given the 'benefit of the doubt' 'regarding any issue material' to the [] claim 'when there is an approximate balance of positive and negative evidence.'" Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over another one by providing an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). In short, a medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez, 22 Vet. App. at 304. In making all determinations, the Board must also fully consider the lay assertions of record. 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). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. In the present case, the Veteran's death certificate lists the immediate cause of death as a malignant neoplasm of the brain. There were no other causes or significant conditions listed. Treatment records associated with the claims folder reveal that the Veteran was first diagnosed with an anaplastic astrocytoma in October 1999. At the time of his death, he was not service-connected for any disabilities. However, service connection was later granted for type II diabetes mellitus for accrued benefits purposes, and a 20 percent disability evaluation was assigned. These facts are not in dispute. Rather, the central question before the Board is whether the Veteran's malignant neoplasm of the brain (herein after "brain cancer" or "tumor"), which caused his death was incurred in service or otherwise resulted from his active duty service. On this question, the appellant has presented alternative theories of entitlement. However, inasmuch as this claim is being granted herein, the Board will only address the theory upon which the claim will be granted. The appellant contends that the Veteran had a slow growing tumor that first formed during his active duty service. She maintains that the tumor went undetected or was misdiagnosed as sinusitis. The Veteran's service treatment records do not reveal any complaints, treatment, or diagnoses of a brain tumor. The appellant does not maintain otherwise. Rather, she contends that symptomatology of a brain tumor first manifested during service. In particular, the appellant testified at her July 2011 Board hearing that the Veteran developed hand tremors while serving with the 160th Special Ops Group in Ft. Campbell, Kentucky. She also stated that he had low-grade type headaches almost constantly during service, which pain relievers did not seem to alleviate. She further noted that he sought treatment during service, but was told that his complaints were related to sinus problems. Finally, she testified that he underwent a personality change during service. The Veteran's service treatment records show that he was seen and treated for numerous sinus infections while in service. The Board also observes that, on a June 1986 report of medical history report, the Veteran checked the box indicating that he was having or had had periods of depression or excessive worry. However, the service treatment records do not indicate that such symptoms were related to a brain tumor. The appellant further testified at the July 2011 Board hearing that the Veteran continued to have the same symptoms after he retired from service. She described his symptoms as becoming progressively worse until he finally sought medical help. She also indicated that a computed tomography (CT) scan was first performed in 1999, which revealed the brain tumor. The appellant's own assertions describing the Veteran's in-service and post-service symptoms and behavior are found to be competent and credible evidence of such symptoms and are therefore presumed to be true for purposes of this decision. See Dalton, 21 Vet. App. at 36; Nieves-Rodriguez, 22 Vet. App. at 304. Her assertions are probative evidence to this limited extent. However, the appellant's assertions, by comparison, are not probative evidence establishing that the Veteran's in-service and post-service symptoms were the result of an undiagnosed brain tumor. The question of whether the Veteran's brain cancer (or its precursors) may have been present, but undiagnosed, during service is a complex medical question not capable of lay observation, and the appellant is not shown to be a medical professional. Thus, her assertions, while credible, are not competent evidence addressing this medical question. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. In other words, while the appellant may be competent to describe observable symptoms, she is not competent to attribute them to a specific diagnosis, such as brain cancer as opposed to a sinus disorder, in this case. The record before the Board contains conflicting medical opinions addressing this question. First, in a July 2002 letter, a physician, Dr. G.K. (initials used to protect Veteran's privacy), indicated that the Veteran had been his patient at a VA Medical Center (VAMC) Oncology Clinic. He noted that the Veteran first recalled some generalized headaches in 1989 that slowly worsened over time. The headaches were initially attributed to sinus trouble. The headaches persisted, and over the next several years, additional symptoms developed, including balance problems, seeing dots before his eyes, and then right leg paresthesias and memory problems. A brain mass was found in 1999. Dr. G.K. went on to clarify in his July 2002 letter that he had been asked to review the Veteran's service records and provide an opinion as to whether the Veteran's brain tumor may have played a role in his initial headaches. Dr. G.K. made clear that there "is no way of knowing for sure" and that it would have been unusual to have such a long period of time between initial symptoms and more advanced neurological complaints. However, according to a prominent neuro-oncologist at Duke (Dr. H.F.) with whom he discussed the specifics of the case, it was possible that the tumor was present in the late 1980s as a low grade lesion and thereby could have caused the headaches. The tumor would then have transformed from a low-grade lesion to a high-grade lesion in the period prior to surgery and pathological examination. Dr. G.K. then related that the process, according to Dr. H.F., was not uncommon for patients that were the Veteran's age. In a March 2004 letter, Dr. H.F., the same physician identified in Dr. G.K.'s July 2002 letter, wrote that the Veteran had been under his care at the Brain Tumor Center at Duke University Medical Center. He noted that the Veteran had been diagnosed with a high grade glioma after presenting with symptoms of headaches, personality and memory changes, and right-sided numbness. Dr. H.F. then opined that, although the Veteran's tumor was diagnosed as a high grade tumor in 1999, given the nature of brain tumors, it was possible that he had a low grade tumor in 1988 when he reportedly began experiencing headaches, subtle personality changes, and an increase in irritability. In a second letter dated in May 2005, Dr. H.F. again summarized the Veteran's history of symptoms and treatment. He then opined that, although the Veteran's tumor was diagnosed as a high-grade tumor in 1999, given the nature of the brain tumor, it was as likely as not that the Veteran had a low-grade tumor in 1988 when he reportedly began experiencing headaches, subtle personality changes, and an increase in irritability. In November 2009, a VA examiner reviewed the matter. In summarizing the history of the case, the VA examiner observed that the Veteran was found to have a brain tumor in 1999 and later died of a malignant brain tumor in September 2006. The VA examiner also noted that the Veteran had a history of a nasal fracture in the 1970's, which led to a septoplasty and continued symptoms of nasal congestion and phlegm thereafter, which were attributed to sinus/respiratory problems until the time of his discharge from service in 1990. The VA examiner found that the diagnoses and treatments given were consistent with the symptoms and signs presented by the Veteran. The VA examiner then concluded that there was no evidence to support the contention that the symptoms in 1980s were in any way related to the brain tumor. The Board then referred the matter for a VHA medical expert opinion. Accordingly, in October 2011, a VA oncologist reviewed the facts of the case and concluded that the Veteran's symptoms during service, including sinus problems, hand tremors, and headaches, were not related to anaplastic astrocytoma; the cause of anaplastic astrocytoma is unknown; and onset cannot be certain during the Veteran's active duty service. In a January 2012 addendum, the VA oncologist explained, in pertinent part, that the Veteran's sinus problems were related to allergic rhinitis; the hand tremor were related to an anxiety disorder; and, the headaches were related to tension headaches. In the November 2012 Joint Motion, the parties agreed that the evidence of record was inadequate to decide the appeal. Specifically, they found that the October 2011 VHA opinion failed to address the evidence of personality changes during service. Consequently, in September 2013, the Board obtained an additional VHA opinion. The reviewer, who is the chief of hematology and oncology at a VA facility, reviewed the medical evidence of record in detail. In addition, several references to different articles in medical literature regarding brain tumors were noted. In pertinent part, the physician indicated that the Veteran's symptoms during service were non-lateralizing and nonspecific. All symptoms had a differential diagnosis. He stated that, certainly, a persistent and worsening headache over years, in this individual, could be the result of a low grade brain tumor, which ultimately evolved, but the location did not justify all of the symptoms in service. The physician did not see how a tumor in this location would relate to sinus problems or hand tremors, unless the tremors were unilateral on the right. He indicated that, while irritability and personality changes could be related to a tumor located in the frontal lobe, these symptoms and hand tremors could also be seen with anxiety, stress, depression, and posttraumatic stress disorder. Nevertheless, the physician concluded that it was at least as likely as not that the Veteran's anaplastic astrocytoma had its onset in service. The Board finds that this September 2013 opinion is adequate and the most probative evidence of record. All of the reported symptoms are considered, along with the Veteran's documented medical history and accepted principles contained in medical literature. The physician considered the possible other causes for the symptomatology manifested by the Veteran during service and concluded that, while there could be other causes, it was at least as likely as not that this symptomatology showed that the Veteran's anaplastic astrocytoma had its onset during service. Because this disability is the same that was documented as the principle cause of the Veteran's death, the Board finds that the evidence is at least in equipoise, and the claim is granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Subject to the provision governing the award of monetary benefits, service connection for the cause of the Veteran's death is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs