Citation Nr: 1636648 Decision Date: 09/19/16 Archive Date: 09/27/16 DOCKET NO. 12-15 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kristy L. Zadora, Senior Counsel INTRODUCTION The Veteran, had active service from April 1971 to April 1972, and died in November 2004. The appellant is his surviving spouse and has been authorized by VA to act as his substitute claimant. See 38 U.S.C.A. § 5121A (West 2014). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which reopened the appellant's claim, but denied service connection for the cause of the Veteran's death. The appellant appealed the denial of service connection, and in a November 2014 decision, the Board also granted her application to reopen but denied the underlying claim. The Board's denial was appealed to the United States Court of Appeals for Veterans Claims (Court), and in August 2015 the Court granted a Joint Motion for Remand (JMR) from the appellant's representative and the VA Secretary. In their JMR, the parties expressly limited the issue on appeal to the matter of service connection for the cause of the Veteran's death. In October 2015, the Board remanded the instant appeal. As will discussed herein, the Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the remand orders with regard to the instant claim and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The Veteran died in November 2004. 2. At the time of the Veteran's death, service connection had been established for posttraumatic stress disorder and tinnitus. 3. The cause of the Veteran's death, amyloidosis, was not related to service, to include in-service exposure to Agent Orange. CONCLUSION OF LAW The Veteran's death was not caused by a disease or injury incurred in or aggravated by service, nor did any such disease or injury contribute substantially or materially to his death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). A notice letter was sent to the appellant in October 2010, prior to the initial adjudication of the claim on appeal. Notice sent to the appellant included descriptions of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the appellant and what information and evidence would be obtained by VA. The appellant was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b). In addition, neither the appellant nor her representative have alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311(Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . or all [Social Security Administration] disability records must be sought - only those that are relevant to the veteran's claim"). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In cause of death cases, a medical examination or opinion is necessary if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service connected disability and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). While 38 U.S.C.A. § 5103A (a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is necessary to substantiate the claim, and VA is excused from providing such assistance only when no reasonable possibility exists that such assistance would aid in substantiating the claim. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008). Moreover, based on the foregoing, the Board determines that the AOJ has substantially complied with the October 2015 remand directives by sending the appellant a letter in December 2015 requesting that she complete an appropriate authorization form to allow VA to obtain records from specific healthcare providers as well as other health care providers who had treated the Veteran, as applicable to the instant claim, and, as such, that no further action is necessary in this regard. See D'Aries, supra. The Board notes that the appellant was informed that the authorization forms she had submitted were incomplete and that she must submit a fully complete authorization form with the name and address of the provider in a February 2016 letter. The appellant did not respond to this letter. The Board points out that, in order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). Moreover, VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Swann v. Brown, 5 Vet. App. 229, 233 (1993). As previously indicated, the AOJ notified the appellant that the authorization forms she had submitted were incomplete in a February 2016. Under these circumstances, the Board finds that, with respect to this request, no further AOJ action in this regard is required. A VA examination of the Veteran's claims file was provided in October 2012, and the Board finds that VA has satisfied its duty to assist not only by acquiring service records as well as records of private and VA treatment, but also in providing the October 2012 examination. Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claim and no further notice or assistance is required. Moreover, the Board notes that neither the appellant nor her representative have argued that the VA etiology opinion is inadequate or that VA's duty to assist has otherwise not been met. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). II. Service Connection for the Cause of the Veteran's Death The Veteran died in November 2004, and the appellant is seeking to establish service connection for the cause of the Veteran's death. To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered 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 thereto. 38 C.F.R. § 3.312 (b). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. 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. 38 C.F.R. § 3.312 (c). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). 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, 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. In this situation, however, 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. 38 C.F.R. § 3.312 (c). The Veteran's certificate of death reflects that he died of sepsis, with secondary related diagnoses of multi-organ failure and amyloidosis. The appellant essentially argues that the Veteran's in-service exposure to Agent Orange either hastened the onset of amyloidosis, or otherwise aggravated the disease beyond its natural progression. She has noted that members of the Veteran's family, including his mother and uncle, also had the disorder, but that their disease courses were very different from the Veteran's. Therefore, she suggests, the Veteran's amyloidosis was of a different nature and independent from his inherited or familial amyloidosis. Generally, amyloidosis, is a "group of conditions of diverse etiologies characterized by the accumulation of insoluble amyloid in various organs and tissues of the body, which compromise vital function." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007), pg 70. The record reflects that the Veteran had a variant of amyloidosis called familial amyloidosis, which is "any inherited form of amyloidosis." Service connection may be granted for a disability which is the result of disease or injury incurred or contracted or for aggravation of a preexisting injury incurred in line of duty in service. 38 U.S.C.A. § 1110. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a). Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303 (c). Rather, a defect of congenital, familial or hereditary origin by its very nature pre-exists military service. Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). If the defect is congenital, therefore, the presumption of sound condition at service entrance does not attach. See Quirin v. Shinseki, 22 Vet. App. 390, 397 (2002); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects). If it is determined that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have pre-existed service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted based on aggravation. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990), published at 56 Fed. Reg. 45, 711 (1990). The VA General Counsel's opinion notes that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental "defect," on the other hand may not be service-connected although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. Id. Thus, as an initial matter, the Board must determine whether the Veteran's familial amyloidosis is to be considered a "disease" or "defect" for the purposes of the appellant's claim. To that end, the Board finds that for the purposes of applying 38 C.F.R. § 3.303, familial amyloidosis is a disease - not a defect - and therefore the nature of the claimed disorder does not necessarily preclude entitlement to service connection. A "disease" is a condition considered capable of improving or deteriorating, whereas a "defect" is not considered capable of improving or deteriorating. Durham v. United States, 214 F.2d 862, 875 (D.C.Cir.1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C.1975). In this case, the evidence shows that although the Veteran has a genetic defect underlying amyloidosis, the claimed disorder itself is a "disease" as it is shown to have on onset, progression, and eventually deterioration rather than having remained a static disorder as one might expect of a "defect." A veteran is presumed to have entered service in sound condition with respect to his or her health except as to defects, infirmities, or disorders "noted" on service entrance. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). Where no defect, infirmity, or disorder was noted on service entrance, the burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153). Again, where a congenital disease is not noted at entry, the presumption of soundness applies. Quirin, at 396-397. Here, the Veteran's service treatment records do not indicate any complaints or treatment referable to amyloidosis, including on pre-induction examination in October 1970. Thus, the Board finds that the Veteran was sound on entrance into service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Here, based on his service, the Board finds that he was exposed to Agent Orange. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the certain diseases - including AL amyloidosis - shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, with some exceptions not including AL amyloidosis, which shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii) (2014). AL amyloidosis, or "primary" amyloidosis, is distinguished from ATTR, or familial amyloidosis. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007), pg 70. The Board is mindful that 36 C.F.R. § 3.307 (a)(6) specifically identifies AL amyloidosis, and thus interprets the regulation as intentionally identifying AL amyloidosis to the exclusion of other forms of amyloidosis. Nonetheless, where the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records reflect no signs or symptoms referable to amyloidosis during service or on separation examination in April 1972, and post-service treatment records indicate that the Veteran was diagnosed with familial amyloidosis polyneuropathy at the Mayo Clinic in October 1997-25 years after separation from service. A June 1998 treatment reports reflects that the Veteran's mother was diagnosed with amyloidosis around the same time. In a December 2000 letter, Dr. G.G.S. opined that the Veteran's "manifestations of his Familial Amyloidosis condition might have been the result of his exposure to agent orange." A May 2001 VA examiner noted that because familial amyloidosis is a genetic disorder, it could not have been related to his personal exposure to Agent Orange. This opinion was echoed by a VA examiner in February 2001 who added that there is no "documentation in any of the medical literature to support that the onset of [the Veteran's] symptoms [was] earlier because of Agent Orange exposure." The Veteran and the appellant have submitted numerous articles, reports, and other treatise documents into the record. In pertinent part, some of these reports note similarities between AL amyloidosis and familial (or ATTR) amyloidosis. Specifically, the articles note that "clinical features of ATTR amyloidosis overlap with AL amyloidosis and the disease cannot be reliably distinguished on clinical grounds alone." Nonetheless, the Veteran's treatment records reflect that amyloidosis was definitively identified to be a familial variant, rather than having been AL, or primary (i.e. acquired). The articles also indicate that in the case of familial amyloidosis "[w]ithin each family disease begins at nearly the same age." The Veteran and the appellant have noted that in the Veteran's family, the disease has historically manifest between the ages of 60 and 70, while the Veteran reported that symptoms began when he was 40 years old. He and the appellant thus suggest that the Veteran's exposure to Agent Orange-which VA recognizes is associated with the onset of AL amyloidosis-caused a premature onset of the Veteran's familial amyloidosis. At least one article, however, indicates that in families with a particular genetic mutation-the same specific genetic mutation which the Veteran had-considerable variation regarding "manifestation and age of onset is observed." Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (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 Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159 (a)(2). The disease at issue, and its underlying mechanisms, are unmistakably complex as evidenced by the volume of treatise information supplied by the Veteran before his death, and more recently the appellant. Thus while the appellant may genuinely believe that the Veteran's exposure to Agent Orange caused the Veteran's familial amyloidosis to have its onset sooner, or caused it to be much worse than it otherwise may have been, her testimony to that effect is not competent and thus of no probative value in establishing a nexus to service. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board has also considered the medical literature submitted, but finds that it is of only minimal probative value. The subject of such literature is sufficiently similar to the issue on appeal, however, generic information from a medical journal, treatise, or website is too "general and inconclusive" to establish a medical nexus to a disease or injury. Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). A medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships. Sacks, 12 Vet. App. at 316-17. Here, no such medical opinion has been associated with the record, and as a result the submitted materials carry minimal probative weight for the purposes of establishing a nexus between the Veteran's terminal familial amyloidosis and service-including his exposure to Agent Orange. With regard to a December 2000 letter from Dr. G.G.S., the Board finds it too speculative to be of significant probative value. The opinion is speculative, without definitive conclusion, saying only that "manifestations of his Familial Amyloidosis condition might have been the result of his exposure to agent orange" (emphasis added). See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). Furthermore, the physician offers no explanation or underlying rationale, nor any indication of how the conclusion was reached. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions); Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record); Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). In contrast, and of great probative value is the October 2012 VA examination opinion, which was offered following a review of the Veteran's claims file and consideration of the entire record. The examiner began by indicating that the Veteran's amyloidosis was inherited, and clearly not related to his Agent Orange exposure. Specifically, she reported that "review of the Veteran's chart notes that he has had amyloid genetic testing and is positive for mutations of the prealbumin gene," and "[t]his is consistent with familial amyloidosis." Accordingly, the examiner concluded that the Veteran's "familial amyloidosis was not due to or the result of Agent Orange but secondary to his genetic makeup." With regard to the question of whether exposure to Agent Orange may have aggravated amyloidosis, the VA examiner went on to state that "[i]t would be speculation to say that the Veteran's condition of familial amyloidosis was aggravated by his exposure to Agent Orange," and cited to an article entitled, AMYLOIDOSIS, HEREDITARY, TRANSTHYRETIN-RELATED. Given that these opinions were based on a review of the entire claims file, and application of treatise information to the particular circumstances of the Veteran's illness, the Board finds them to be of exceptional probative value in establishing that exposure to Agent Orange is note related to the onset of the Veteran's amyloidosis, or to the progress of the disease. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs