Citation Nr: 1512420 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 12-35 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1958 to January 1982. He died in October 2009. His surviving spouse is the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota. FINDINGS OF FACT 1. The Veteran's death certificate states that he died in October 2009; myeloproliferative disorder and thrombocytopenia were reported as significant conditions contributing to his death. 2. Myeloproliferative disorder and thrombocytopenia are not attributable to service. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the Veteran's cause of death. U.S.C.A. §§ 1110, 1111, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance 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 a February 2010 letter. With regard to the duty to assist, the claims file contains the Veteran's service treatment records, and post-service medical records. June 2010 and October 2012 VA medical opinions were also obtained. The Board finds that these medical opinions are adequate because the medical professionals reviewed the Veteran's claims file, and provided a detailed rationale for all conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board finds that VA has satisfied its duties to notify and assist. II. Service Connection for Cause of Death The death of a Veteran will be service connected if the evidence shows that a disability incurred in or aggravated by active service 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 to the cause of death. 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) . The standards and criteria for determining whether or not a disability from which a Veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the Veteran is still alive. 38 U.S.C.A. § 1310. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, certain chronic diseases may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Similar to presumptive service connection, certain diseases associated with exposure to herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii) . The Veteran's Certificate of Death, issued on October 14, 2009, listed acute intracerebral hemorrhage, and head injury-accidental fall as the causes of death. Myeloproliferative disorder and thrombocytopenia were reported as other significant conditions. The Appellant contends that the Veteran was diagnosed with lung cancer and underwent chemotherapy prior to his death. She claims that the chemotherapy led to the Veteran's myeloproliferative disorder. Initially, the Board notes that the Veteran served in Vietnam and that lung cancer is listed as a disease that has been associated with Agent Orange exposure. However, lung cancer is not the cause of the Veteran's death, thus the only issue before the Board is whether the Veteran's chemotherapy, which was used to treat his lung cancer, is related to his myeloproliferative disorder. There are no complaints, treatment, or diagnosis of a myeloproliferative disorder or thrombocytopenia in service. Post-service records reveal a diagnosis of myeloproliferative disorder. However, they do not show that the Veteran's condition was caused by chemotherapy. The treatment records only show that the Veteran developed anemia following surgery and chemotherapy. A medical opinion was obtained in June 2010. The VA examiner concluded that the Veteran's cause of death was not caused by or the result of thrombocytopenia due to chemotherapy for his lung cancer. The VA examiner reasoned that the Veteran's thrombocytopenia did not start until approximately 10 years after chemotherapy. The VA examiner also noted that the Veteran had a genetic defect, which is not the mutation that is commonly due to chemotherapy. Therefore, the VA examiner concluded that the Veteran's bone morrow disorder "had nothing to do with his chemotherapy." In June 2011, the Appellant submitted a statement from Dr. S.I., the Veteran's private provider, who evaluated him from October 2008 and October 2009. Dr. S.I. opined that there is a greater than 50 percent probability that the Veteran's myelodysplasia was the result of the chemotherapy prescribed to treat his previous diagnosis of lung cancer. Dr. S.I. did not provide a rationale for his opinion. A VA medical opinion was also obtained in October 2012. The VA examiner contacted the private provider and was informed that the private provider's opinion was based on the increased blood disorder following the chemotherapy. The provider also stated that, "it remains that no one can say with any degree of certainty that the Veteran's myelodysplasia was not caused by his chemotherapy and that there is a reasonable chance that it was." The VA examiner, however, noted that the Veteran's myelodysplasia was found nearly 10 years after his chemotherapy and chemotherapy-associated myelodysplasia occurs at a median interval of 48 months after chemotherapy. Furthermore, in 10 to 20 percent of myelodysplasia cases associated with prior chemotherapy, approximately 80 percent have documented chromosomal abnormalities in chromosome 5, 7, or 11 which were not present in the Veteran. Thus, the VA examiner concluded that "while it is easily within the realm of possibility that treatment rendered for the Veteran's lung cancer could cause his myelodysplasia without typical post-chemo chromosomal abnormalities, the odds indicated by the weight of the literature indicates that it is less likely as not that this Veteran's myelodysplasia was caused by or related to previous treatment for his lung cancer." Based on the evidence, the Board finds that there is no evidence linking the Veteran's myelodysplasia to service or chemotherapy. The Veteran's service treatment records show no complaints, treatment, or diagnosis of myelodysplasia. Furthermore, post-service treatment records do not link his myelodysplasia to service or his chemotherapy following lung cancer. The October 2012 VA examiner opined that it is less likely as not that this Veteran's myelodysplasia was caused by or related to previous chemotherapy treatment for his lung cancer. The Board is aware that Dr. S.I. opined that that there is a greater than 50 percent probability that the Veteran's myelodysplasia was the result of the chemotherapy prescribed to treat his previous diagnosis of lung cancer. However, Dr. S.I. provided no rationale to support his opinion. In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Because Dr. S.I. failed to provide a basis for his conclusion, the Board finds this opinion lack probative value, and therefore, give greater weight to the VA examiner's opinion. The only other evidence to link these conditions to service or to chemotherapy is the Appellant's own assertions. Although lay assertions may serve to support a claim for service connection by supporting the occurrence of lay observable events or the presence of a disability or symptoms of a disability subject to lay observation, Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), determining the precise etiology of the Veteran's death is a complex question involving multiple factors and knowledge of blood disorders. In this case, the facts are complex enough that the Appellant's perception about the cause of the Veteran's death is not sufficient to outweigh the opinion of the VA medical examiners who carefully considered the specific facts of this case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) Thus, the Board finds that the Appellant's lay opinion is not entitled to significant weight as compared to the VA opinions. Accordingly, the Board finds that the preponderance of the evidence is against service connection for the cause of the veteran's death. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See Gilbert, 1 Vet. App. at 55 . ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs