Citation Nr: 1313313 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 11-11 959A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to dependency, indemnity and compensation (DIC) benefits under 38 U.S.C.A. § 1318 (West 2012). 2. Entitlement to accrued benefits. 3. Entitlement to DIC benefits based on service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310 (West 2002). REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESSES AT HEARING ON APPEAL Appellant, A.G. and B.H. ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from April 1946 to October 1947 and from January 1948 to May 1954. He served in the Korean Conflict and received the Combat Infantryman Badge. The appellant is his widow. These issues come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In that decision, the RO denied entitlement to service connection for the cause of the Veteran's death. The appellant testified before the undersigned at a July 2012 Board hearing. A transcript of the hearing has been reviewed and is in the file. 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. At the July 2012 Board hearing, the appellant withdrew the claims for entitlement to DIC benefits under 38 U.S.C.A. § 1318 and accrued benefits. 2. The Veteran died in February 2010; the cause of death listed on the death certificate was lymphoma. 3. At the time of death, the only service-connected disability was posttraumatic stress disorder (PTSD) which was rated as 70 percent disabling. 4. Service-connected PTSD contributed substantially and materially to the Veteran's death. CONCLUSIONS OF LAW 1. The criteria for withdrawals of claims for entitlement to DIC benefits under 38 U.S.C.A. § 1318 and accrued benefits have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. Entitlement to DIC benefits under § 1310 based upon service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1110, 1131, 1310, (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As a preliminary matter, the appellant has been provided all required notice. The evidence currently of record is sufficient to substantiate her claim for service connection for cause of the Veteran's death. The agency of original jurisdiction (AOJ) will be responsible for addressing any notice defect with respect to the effective date element when effectuating the award. See, Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No further development with respect to this claim is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative on the record at a Board hearing. 38 C.F.R. § 20.204(b)(1). In the present case, at the July 2012 Board hearing, the appellant and her representative withdrew the claims for entitlement to DIC benefits under 38 U.S.C.A. § 1318 and accrued benefits. There remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review these appeals; they are dismissed. Although, withdrawing a claim for death pension was mentioned, the record shows the appellant is already in receipt of death pension benefits (See March 2011 RO decision granting death pension benefits). Service Connection for the Cause of the Veteran's Death Service connection will be established for disability resulting from personal injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). Dependency and indemnity compensation (DIC) may be awarded to a surviving spouse upon the service connected death of a veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.5(a) (2012). 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. 38 C.F.R. § 3.312(a) (2012). A service connected disability will be considered as the principal (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. 38 C.F.R. § 3.312(b) (2012). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c)(1) (2012). In determining whether the 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. Id. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2) (2012). In the same category are service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. Id. 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) (2012). 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. 38 C.F.R. § 3.312(c)(4) (2012). In this situation, 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. Id. Further, where the veteran served continuously for ninety (90) or more days during a period of war, and if a malignant tumor became manifest to a degree of 10 percent or more within one year from the date of his or her 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 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Generally, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to a Veteran's use of tobacco products during service. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300(a) (2012). "Tobacco products" means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. Id. Service connection is not prohibited if the disability can be service-connected on some basis other than a veteran's use of tobacco products during service, or if the disability became manifest during service. See 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300(b) (2012); see also VAOGCPREC 6-2003 (neither the statute nor the regulation bars a finding of secondary service connection for a disability related to a veteran's use of tobacco products after the veteran's service, where that disability is proximately due to a service-connected disability that is not service-connected on the basis of being attributable to the veteran's use of tobacco products during service). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 C.F.R. § 1154(a) the Board must do more than look for a medical nexus in adjudicating claims with lay evidence; it must also discuss competence and credibility. The Court noted that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. Id; See also 38 C.F.R. § 3.159(a)(2) (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 the facts or circumstances and conveys matters that can be observed and described by a lay person). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Veteran, served from April 1946 to October 1947 and from January 1948 to April 1954. He participated in combat during the Korean War and received the Combat Infantryman Badge. At the time of his death in February 2010, he was service-connected for PTSD which was 70 percent disabling. Lymphoma is the only condition listed on the death certificate. The appellant's theory in this case is that the Veteran's service-connected PTSD caused him to smoke cigarettes, which in turn caused lymphoma. Alternately, she alleged his lymphoma was caused by service (see January 2012 statement). The appellant, and the Veteran's son and daughter-in-law (also his neighbors) testified that throughout his life the Veteran smoked and suffered from PTSD symptoms. (Transcript, pp 9-10.) The Board finds the lay statements provided in this case to be competent and credible regarding the observation of the Veteran's smoking habits and observable PTSD symptoms. 38 C.F.R. § 3.159(a)(2); Caluza, 7 Vet. App. at 511. Although the cause of death in this case requires some medical expertise, to the extent they describe the Veteran's lifestyle and habits, they are relevant these statements are assigned some weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, Footnote 4 (Fed. Cir. 2007). Although an August 2008 VA social worker's noted shows the Veteran denied tobacco use for the past seven years, the balance of the evidence shows the Veteran smoked nearly up until his death in 2010. The Veteran had also reported heavy drinking for a time after separation from service (see February 2001 pulmonary consultation record and December 2008 VA PTSD examination record). A VA record from August 1998 shows the Veteran had a positive purified protein derivative test as well as restrictive pulmonary disease. A February 2001 VA pulmonary consultation record noted a past hospitalization to rule out tuberculosis in 1998. The Veteran's social history noted he worked in molybdenum mines for fifteen years and was exposed to "moly dust" part of the time. Also, he worked two years in another underground mine, possibly zinc. At that time, he stated he had quit tobacco two months prior. It was noted that the 1998 chest computed tomography (CT) scan showed bilateral pulmonary fibrosis largely in the bases with no discrete nodules seen. The assessment was pulmonary fibrosis, possibly secondary to his mining exposure. In August 2008, a VA pulmonary record noted the Veteran had probable usual interstitial pneumonitis (UIP) with honeycombing. An addendum stated there were limited treatment options for UIP. In a December 2008 VA examination report for PTSD, the Veteran stated his usual occupation was a laboratory technician at a mining company. In February 2009, an addendum showed the Veteran was not competent to manage his VA benefits (the appellant was appointed the VA fiduciary). In June 2009, a VA record noted the diagnosis of pulmonary fibrosis, most likely UIP. The Veteran had a negative biopsy for tuberculosis/lymphoma. As the past biopsy was negative, the Veteran wanted no follow up. The need for hospice and palliative care was mentioned. By December, records noted an enlarged neck mass. The Veteran was admitted to the hospital for treatment. A VA surgery consultation noted a history of chronic renal failure, restrictive lung disease, and anemia. Biopsy results were procured and the December 2009 VA discharge summary showed a principal diagnosis of diffuse large B cell lymphoma and secondary diagnoses of pulmonary fibrosis, chronic kidney disease, atrial fibrillation with a right ventricular rhythm, hypertension, anemia and deconditioning. The February 2010 death certificate shows the cause of death was lymphoma only. As lymphoma was not diagnosed until many years after service, the one year presumption does not provide a route to service connection for the cause of death. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. In April and July 2012, opinions were submitted by two clinicians who were also the parents of the Veteran's daughter-in-laws; they observed the Veteran while he was alive. The Veteran's daughter-in-law noted at the Board hearing that her parents were around her father-in-law while he was alive. (Board Transcript, pp 12-13.) The April 2012 opinion, completed by Dr. Y.E. (a cardiopulmonary physiologist) stated that PTSD contributed to the lymphoma. Dr. Y.E. noted in spite of his work history as a miner, there was no pneumoconiosis, coal miner's lung or silicosis. The UIP was an intercurrent condition. Dr. Y.E. wrote that it would be "premature" to link PTSD and lymphoma at present based on studies. But lymphoma diagnosis was stress itself. The relationship between smoking and lymphoma was linked. The Veteran probably had chronic bronchitis. Epidemiologic studies show a relationship between cigarette smoking and non-Hodgkin's lymphoma. The mechanism by which smoking causes or increases risk of non-Hodgkin's lymphoma is speculative. But it was more likely that in this case the Veteran's heavy smoking linked the PTSD with the lymphoma. In July 2012, Dr. B.E. rendered an opinion. She noted that the Veteran's chronic smoking was raised several times but his PTSD rendered him incapable of quitting. Studies showed people with PTSD had a higher rate of heavy smoking than those without PTSD. She observed the Veteran to have increasing depression over the years. Studies showed that release of stress hormones could affect cancer cells directly. It was more likely than not that PTSD played a role in the course of lymphoma and at least as likely as not played a role in its development. Additionally, Dr. B.E. said that the Veteran had a lung biopsy in April 2009 with negative results. She felt a more proactive patient would have sought a second opinion or follow up; by the time lymphoma was diagnosed it was already Stage IV. Stress related to war led to heavy smoking, weakened immune defenses and ultimately played a role in the course of lymphoma and ultimately in death. The Board sought a Veteran's Health Administration (VHA) opinion from an oncologist. The opinion was completed in April 2013. The oncologist reviewed the file and noted that diffuse large B-cell (DLBCL) lymphoma, the type of cancer the Veteran had, was an aggressive form of lymphoma and was a contributory cause of the Veteran's death. She confirmed that while other types of lymphoma (follicular B-cell non-Hodgkin's and Hodgkin's lymphoma) had been suspected to have an association with cigarette smoking, there were no conclusive studies to suggest a definitive association between DLBCL and tobacco use; however, it was suspected the Veteran's lymphoma might have been aggravated by smoking. The oncologist went on to agree with the opinion that smoking had been associated with PTSD and PTSD impeded smoking cessation (an epidemiological study was cited and attached). She also concluded that the service-connected PTSD contributed to the Veteran's death long term by perpetuating and aggravating tobacco use, which in turn contributed to additional comorbidities like emphysema and fibrosis. Such conditions compromised the Veteran's ability to tolerate aggressive treatment for lymphoma. As a result, there was a 50 percent likelihood that tobacco use caused comorbidities that might have prevented aggressive treatment for the lymphoma and other conditions that contributed significantly to his immediate death. Analysis Doctors B.E. and Y.E. observed the Veteran during his lifetime; cited to relevant medical literature which supported the detailed rationale for their conclusions. They possess the expertise to express competent opinions on the matters they commented on. The VHA oncologist also provided a well-reasoned opinion with citation to studies that was more specific in addressing the Veteran's specific type of cancer. She also acknowledged the interplay between PTSD and smoking. Overall, these opinions are not in conflict with each other and the Board affords them great weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009). As explained claims for service-connection directly based on the effects of tobacco products are barred. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300(a). However, if the disease can be service-connected a basis other than the direct use of tobacco products the claim may be granted. 38 C.F.R. § 3.300(b)(1). The Board finds that shown here by the April 2013 VHA opinion which explained that the Veteran's PTSD was likely linked to the comorbidities which contributed to death. The evidence supports a grant of service connection for the cause of the Veteran's death. Service connection would also be permissible, if the smoking was caused by a service connected disability, and the smoking caused or aggravated another disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). After considering all of the evidence, the Board finds that the claim is in equipoise and the benefit of the doubt rule is for application here. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board finds the opinions in this case support that the Veteran's service-connected PTSD contributed materially in the causation of death via tobacco use which compromised his overall health in fighting his lymphoma. 38 C.F.R. § 3.312(c)(1). In coming to this determination, the Board relies heavily on the medical opinions submitted regarding this case. ORDER Entitlement to accrued benefits is dismissed. Entitlement to DIC benefits under 38 U.S.C.A. § 1318 is dismissed. Entitlement to DIC benefits based on service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310 is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs