Citation Nr: 1647143 Decision Date: 12/16/16 Archive Date: 12/30/16 DOCKET NO. 13-07 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California 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 J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from January 1948 to February 1952. His awards and decorations included the Combat Infantryman Badge (CIB). The Veteran died in 2008; the present Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. VA's present Agency of Original Jurisdiction (AOJ) is the VA RO in Oakland, California. In February 2015 the Board remanded the case to the AOJ for further development, which has been accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran was service-connected for posttraumatic stress disorder (PTSD) and for cold-related injuries to both feet. 2. The Veteran's death certificate lists the immediate cause of death as respiratory failure due to underlying lung cancer; other significant conditions contributing to death but not resulting in the underlying cause of death were dementia and PTSD. 3. The most probative medical evidence of record shows the Veteran's service-connected disabilities did not cause the Veteran's death or contribute substantially or materially to his death. CONCLUSION OF LAW The requirements to establish entitlement to service connection for the Veteran's cause of death have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). The Appellant in this case has not cited any prejudice in regard to the content or timing of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Concerning the duty to assist, the Veteran's service treatment record is associated with the claims file. The Appellant has not made the AOJ or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced her in the adjudication of this appeal. The Appellant was notified of her entitlement to a hearing before the Board in support of her appeal, but she declined such a hearing. The Board reviewed the case in February 2015 and determined that additional medical opinion was required to establish causation of the Veteran's death. The Board remanded the case to the AOJ for that purpose. In response, the file was reviewed in January 2016 by a VA physician who provided the medical opinion requested. The Board had reviewed the report and finds the AOJ substantially complied with the Board's remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required). The AOJ also performed the other development action designated by the Board. Based on a review of the record, the Board finds that there is no indication that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duties to notify and assist have been satisfied and will proceed to the merits of the issue on appeal. Evidence and Analysis To establish service connection for the cause of a veteran's death, evidence must show a disability incurred in or aggravated by active service either caused or substantially or materially contributed to the veteran's death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to be a contributing cause, it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2016). A service-connected disability is one that was incurred in or aggravated by active service; one that may be presumed to have been incurred or aggravated during such service; or, one that was proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. The Veteran was service-connected for posttraumatic stress disorder (PTSD) and for cold-related injuries to both feet. The Veteran died in January 2008. The death certificate lists the immediate cause of his death as respiratory failure due to underlying lung cancer; other significant conditions contributing to death but not resulting in the underlying cause of death were dementia and PTSD. The Veteran's service treatment records (STR) include a February 1952 separation examination in which the lungs and chest were characterized as normal on examination. However, the Appellant asserts on appeal that the Veteran smoked cigarettes after service to self-medicate due to his PTSD symptoms. She states the Veteran had stopped smoking cigarettes many years before his death. The Board notes the Veteran had a VA PTSD examination in February 2002 in which the examiner stated the Veteran had attempted in the past to self-medicate with cannabis and alcohol. The examiner formally diagnosed PTSD with secondary depression, alcohol abuse secondary to PTSD and cannabis abuse secondary to PTSD. The examiner did not refer to tobacco use secondary to PTSD. In May 2011 the file was reviewed by Dr. DGK, a VA physician. Dr. DGK noted that when the Veteran was admitted to VA for inpatient treatment in December 2007, immediately prior to his death, the VA active problems list included the following: squamous cell carcinoma of the lung, atrial fibrillation, cognitive impairment, chronic obstructive pulmonary disorder (COPD), hyperlipidemia, hypertension and PTSD. Dr. DGK stated an opinion that PTSD was not a contributing factor in the Veteran's death due to lung cancer and/or respiratory failure. As rationale, Dr. DGK stated that PTSD is a psychological condition that does not cause, contribute to or enhance the development of respiratory failure or lung cancer; also, the treatments for PTSD and their potential side effects do not cause, contribute to or enhance the development of respiratory failure or lung cancer. The file contains a letter from VA physician Dr. SK, dated in July 2011 (the Board notes that Dr. SK is the physician who signed the Veteran's death certificate). Dr. SK stated she had treated the Veteran in his final illness from December 2007 to January 2008. Dr. SK stated that PTSD might have played a role in the Veteran's tobacco use disorder that might have contributed to his lung cancer; the Veteran did not smoke during his inpatient stay and had stopped smoking several years earlier, per his medical history. The Board remanded the case in February 2015 for a more comprehensive medical opinion in regard to causation of the Veteran's death. In response, the file was reviewed in January 2016 by Dr. EB, a VA physician. Dr. EB stated it is not likely the Veteran's PTSD contributed substantially or materially to the Veteran's death. As rationale, Dr. EB stated there is ample evidence in medical literature to show a direct causation between cigarette smoking and lung cancer; the Veteran in this case had a smoking history equivalent to a 70 pack year habit, which placed him at substantial risk despite his subsequent abstinence. However, in regard to the Appellant's contention that the Veteran's PTSD caused him to self-medicate by using cigarettes, data from the Center for Disease Control (CDC) show that more than half the adult population was actively smoking during the same time period as the Veteran, which shows the Veteran's habit was not out of the ordinary for the time. Further arguing against the self-medication contention is the fact that the Veteran quit smoking on his own in about 1990, leaving 12 years during which he faced PTSD symptoms without using tobacco-based cigarettes. The Veteran began using alcohol in the early 2000s, and it is well-established that the cigarette/nicotine habit is far more addictive than alcohol, yet the Veteran was able to quit smoking on his own, PTSD symptoms notwithstanding. The Veteran did admit to a 2-year marijuana smoking habit, but taken by itself this would not have contributed substantially to the lung cancer risk. Therefore, given the evidence of record to include CDC data and relevant data from medical literature, it is less likely than not that the Veteran's PTSD contributed substantially and materially to the Veteran's cause of death. The file contains conflicting medical opinion in regard to the cause of the Veteran's death, with Dr. SK essentially supporting service connection and Drs. DGK and EB essentially rejecting service connection. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). For the reasons below, the Board finds the opinions of Dr. DGK and EB, and especially that of Dr. EB, to be more probative than that of Dr. SK. First, there is no indication of what factual background was available to Dr. SK, other than her own observations of the Veteran while serving as his attending physician. In comparison, Drs. DGK and EB had the Veteran's entire medical record available, and Dr. EB cited to the Veteran's medical history in support of his opinion. Accordingly, the opinion of Dr. EB is the most probative under the first prong of Nieves-Rodriguez. Second, Dr. SK did not provide a fully-articulate opinion. She stated PTSD "might have" played a role in tobacco use disorder that in turn "might have" contributed to lung cancer, but medical opinions expressed in speculative language do not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993). In contrast, both Drs. DGK and EB stated opinions using the "at least as likely as not" legal standard required in a disability benefits determination. Thus, the opinions of Drs. DGK and EB are more probative under the second prong of Nieves-Rodriguez. Finally, Dr. SK merely provided a conclusory opinion, without any supporting rationale. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In contrast, Drs. DGK and EB, and Dr. EB especially, supported their opinions with extensive clinical rationale. In that regard, it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. Accordingly, the opinion of Dr. EB is the most probative under the third prong of Nieves-Rodriguez. The Appellant asserts VA should afford greater deference to the opinion of Dr. SK because she had attended the Veteran in a clinical environment and thus has greater personal experience with the Veteran. The Board disagrees. The Court has expressly declined to adopt a rule that accords greater weight to the opinion of the veteran's treating physician over a VA or other physician. Winsett v. West, 11 Vet. App. 420 (1998); Chisem v. Brown, 4 Vet. App. 169, 176 (1993); Guerrieri, 4 Vet. App. 467, 471-73. Further, as shown above, Dr. SK's opinion is speculative, conclusory and generally lacking in probative value. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence cited above the Board has considered the lay evidence offered by the Appellant in the form of her correspondence to VA. The Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). To the extent that the Appellant offers evidence of observable signs and symptoms, to include the Veteran's smoking habits, she is considered competent and credible. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, the etiology of lung cancer is a complex medical question that is not within the competence of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Jones v. Brown, 7 Vet. App. 134, 137 (1994) (holding that it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation). In sum, based on the evidence and analysis above the Board finds the most probative medical evidence of record shows the Veteran's service-connected disabilities did not cause the Veteran's death or contribute substantially or materially to his death. Accordingly, service connection for the cause of the Veteran's death must be denied. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In this case the preponderance of the evidence is against the claim, and the benefit-of-the-doubt rule does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs