Citation Nr: 1746987 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 13-30 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in St. Paul, Minnesota 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 T. Douglas, Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran who served on active duty from March 1969 to March 1971. The Veteran died in March 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 decision by the St. Paul, Minnesota, Department of Veterans Affairs (VA), Pension Management Center. The case was remanded for additional development in July 2015. FINDING OF FACT The persuasive evidence of record demonstrates that the Veteran died as a result of lung cancer, and that a disability of service origin did not cause or contribute substantially or materially to his cause of death. CONCLUSION OF LAW A disability incurred in or aggravated by service or presumed to have been incurred in service did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1116, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Although in correspondence dated in March 2016 the appellant provided a corrected spelling for the name of one of the Veteran's private medical care providers, she provided no indication that the physician could be located nor that records pertinent to the issue on appeal actually existed. She also noted that he had been approved for a 100 percent Social Security Administration (SSA) disability. However, she did not indicate that any records associated with that determination were pertinent to the present appeal. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). The matter was remanded in order to obtain treatment records, verify the Veteran's alleged exposure to herbicide and other toxic agents, and solicit an opinion as to the etiology of the lung cancer that caused the Veteran's death. Records were obtained and, as discussed, the service department was unable to confirm/verify the allegation of the Veteran being exposed to herbicide agents. A comprehensive medical opinion was obtained as well. There has been substantial compliance with those directives. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Neither the appellant nor her representative has raised any other issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Cause of Death A veteran's surviving spouse is eligible for dependency and indemnity (DIC) benefits when a qualifying veteran dies from a service-connected disability. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.5(a) (2016). The service-connected disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2016). It is the principal cause if it was "the immediate or underlying cause of death or was etiologically related" to the death. 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). In order to be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including malignant tumors, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2016). Veterans diagnosed with an enumerated disease who, during active 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 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)(6)(iii) (2016). An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 C.F.R. § 3.307(a)(6)(v). Certain disorders, including respiratory (lung) cancers, if manifest to a degree of 10 percent or more for a herbicide exposed Veteran may be presumed service connected. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). Generally, veterans diagnosed with an enumerated disease who served in the Republic of Vietnam, near the Korean demilitarized zone (DMZ) in areas where herbicides were known to have been applied, or who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6). VA has also administratively acknowledged (M21-1) herbicide use in Thailand and storage on Johnston Island and has established special consideration and procedures for claims based on herbicide exposure in those locations. See M21-1, IV.ii.1.H. Those provisions include directives concerning when a detailed statement of the claimed herbicide exposure must be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. See VBA Fast Letter 09-20 (May 6, 2009). The M21-1 specifies when herbicide exposure may be conceded in certain cases where the Veteran served in Thailand during the Vietnam era. VA's Compensation Service has further issued information concerning the use of herbicides in Thailand during the Vietnam era. In a May 2010 bulletin, the Compensation Service indicated that it had determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A source for this information was the declassified Vietnam era Department of Defense (DoD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Although DoD indicated that the herbicide use was commercial in nature rather than tactical, the Compensation Service determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant with characteristics of tactical herbicides, were used. Therefore, the Compensation Service determined that special consideration of herbicide exposure on a facts found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeter of Thailand military bases, allowing for presumptive service connection of the diseases associated with herbicide exposure. According to the bulletin, along with air bases, there were some small Army installations established in Thailand during this period, which may also have used perimeter herbicides in the same manner as the air bases. Therefore, if a U.S. Army veteran claimed disability based on herbicide exposure and the veteran was a member of a military police (MP) unit or was assigned an MP MOS that required duty at or near the base perimeter, then herbicide exposure on a facts found or direct basis is to be acknowledged. Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Metastatic tumors are qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2016). The appellant contends that the Veteran's death was caused as a result of service including as a result of exposure to herbicide agents (Agent Orange) during service in Germany. In statements in support of the claim she reported that the Veteran told her herbicides had been used in Germany, but provided no specific information as to that claim. She also noted that he had end-stage renal failure without indicating that the disorder was either a cause of his death or was related to service. VA records show service connection is not established for any disability. His death certificate shows he died in March 2006 with an immediate cause of death due to lung cancer. Service treatment records are negative for complaint, treatment, or diagnosis of any disorder associated with the cause of his death. Service personnel records show the Veteran had overseas Vietnam-era service in Europe (USAREUR) Germany from August 1969 to March 1971. His military occupational specialty was as an indirect fire crewman, and his principal duty was as a gunner. His Enlisted Qualification Record indicates a notation of "OS 1 THAILAND" without further explanation. There is no indication of any actual service or visitation in the Republic of Vietnam or in Thailand. The service department has reported that search efforts revealed no evidence the Veteran was exposed to herbicide agents. Private medical records show the Veteran was diagnosed with adenoma of the middle lobe of the right lung in September 2005. It was noted he had a distant history of chronic smoking. A December 2005 report included a diagnosis of acute renal failure, resolved. A July 2012 medical opinion from the Veteran's treating physician, J.B.S., M.D., reported that "one of [the Veteran's] primary duties was in the transport of toxic materials" and that "[i]t is possible that his cancer may have been connected to those duties." It was noted that he had no other risk factors for lung cancer. A December 2015 VA medical opinion found it was less likely that the Veteran's lung cancer was incurred in or caused by an in-service injury, event, or illness. The examiner explained that there were many environmental and occupational lung carcinogens currently listed by the International Agency for Research on Cancer (IARC) as known human lung carcinogens. The IARC had identified arsenic, asbestos, beryllium, cadmium, chloromethyl ethers, chromium, nickel, radon, silica, and vinyl chloride as occupational carcinogens (as a result of exposure to chemicals in the workplace). Other environmental factors that have been associated with an increased risk for developing lung cancer include exposure to second-hand smoke, ionizing radiation, and polycyclic aromatic hydrocarbons. The IARC was noted to have sufficient evidence to list tobacco smoking as a known human lung carcinogen and had identified at least 50 carcinogens in tobacco smoke. There is overwhelming evidence that cigarette smoking is still by far the most common risk factor for lung carcinoma. The examiner stated that, globally, approximately 75% of lung cancer cases were attributable in part to smoking tobacco, with a higher estimate of 85% to 90% for the United States. As the period of abstinence from smoking cigarettes increases, the risk of lung cancer decreases. However, even for periods of abstinence of over 40 years, the risk of lung cancer for former smokers remains elevated compared with that for never smokers. In summary, it was noted that smoking was the primary risk factor for the development of lung cancer and was estimated to account for approximately 90% of all lung cancers. The Veteran was noted to have had an extensive history of tobacco abuse. The examiner found that it is less likely that the his metastatic non-small cell lung cancer had its clinical onset during active service or was related to any incident of his service, to include any potential exposure to toxic chemicals and/or herbicide agents, in view of the overwhelming primary risk factor of smoking. Furthermore, lung cancer due to occupational exposures to chemicals/toxins were noted to be more intense, more prolonged, and more easily identifiable than exposures in other settings and the level and duration of exposure in cases of occupational exposure is significantly greater than that which would be observed during the Veteran's time (2 years) in the military. Based upon an extensive review of the record, the Board finds that the persuasive evidence of record demonstrates that the Veteran died as a result of lung cancer, and that a disability of service origin did not cause or contribute substantially or materially to his cause of death. He died in March 2006 and had an initial diagnosis of lung cancer in September 2005. There is no evidence that a malignant tumor was manifest within one year of his separation from active service and no probative evidence demonstrating that the Veteran had service in Vietnam, service in Thailand indicative of herbicide exposure, or actual exposure to tactical herbicide agents. The December 2015 VA medical opinion in this case is found to be persuasive. The examiner is shown to have reviewed of the evidence of record and to have adequately considered the credible lay statements of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board acknowledges the July 2012 private medical opinion from the Veteran's treating physician, but finds the opinion to be too equivocal to be of any probative weight. The use of equivocal language such as "could" or "may have" makes a statement by an examiner speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). The Board further finds that the opinion warrants a lesser degree of probative weight based upon the physician's finding that the Veteran had no other risk factors for lung cancer, which is inconsistent with the other medical evidence of record indicating he had a long history of chronic tobacco use. Consideration has been given to the appellant's personal assertion that the Veteran's death was caused or aggravated by service including as a result of herbicide exposure. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The pertinent matters at issue are not conditions that are readily amenable to probative lay comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board acknowledges that the appellant is competent to report observable symptoms, but finds there is no indication that she is competent to etiologically link any such symptoms to a medical diagnosis. She is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that she received any special training or acquired any medical expertise in evaluating such matters. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the service connection cause of death claim. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs