Citation Nr: 1752070 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-44 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to October 1995. He died in January 2008. The appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) is from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, November 2013, and March 2016, the Board remanded this issue for additional development. FINDINGS OF FACT 1. The official death certificate shows that the Veteran died in January 2008 and that the immediate cause of death was respiratory failure due to or as a consequence of pancreatic cancer. 2. Service connection was not in effect for any disability at the time of the Veteran's death. 3. The Veteran's death was not caused by a disability incurred in or aggravated by service and is not etiologically related to any incident or disease during the Veteran's active service, to include as due to radiation exposure while in service, or from exposure to submarine torpedoes or Otto fuel. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C. §§ 1101, 1110, 1116, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a November 2011 letter. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The appellant has not raised any issues 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 duty to assist argument). The Board finds that the RO substantially complied with the June 2011, November 2013 and March 2016 remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Laws and Regulations Service connection may be granted for a disorder resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disorder; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disorder and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for the cause of a Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of death. See 38 C.F.R. § 3.312(a) (2017). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause of death, or be etiologically related. See 38 C.F.R. § 3.312(b) (2017). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially to death. It is not sufficient to show that it casually shared in producing death; rather it must be shown that there was a causal connection. See 38 C.F.R. §3.312(c) (2017). 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 38 C.F.R. § 3.312(c) (1) (2017); Lathan v. Brown, 7 Vet. App. 359 (1995). Factual Background and Analysis The record reflects that the Veteran died in January 2008. The death certificate lists his causes of death as respiratory failure, urinary tract infection, and small bowel obstruction, with the underlying cause of death being pancreatic cancer. At the time of his death, the Veteran was not service connected for any disabilities. The Veteran was on active duty for over twenty years. He was exposed to ionizing radiation, as set forth in his service records, as well as other toxic substances. He had periodic exposure to ionizing radiation from 1979 to 1989. His pancreatic cancer is a radiogenic disease, and it manifested 12 years following separation. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean on site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(i), (ii). First, diseases specific to radiation-exposed veterans are the following: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, cancer of the small intestine, pancreatic cancer, multiple myeloma; lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), salivary gland cancer, cancer of the urinary tract, bronchio-alveolar carcinoma, bone cancer, brain cancer, colon cancer, lung cancer, and ovarian cancer. 38 C.F.R. § 3.309(d)(2). Second, 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). For all claims where radiation exposure during service is claimed and a radiogenic disease is diagnosed after service, 38 C.F.R. § 3.311 (2017) compels the forwarding of all records pertaining to the Veteran's radiation exposure in service to the Under Secretary for Health. The Under Secretary of Health is responsible for the preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). After it is determined by the dose assessment that the Veteran was exposed to radiation, the RO is then required to refer the case to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b) (2017). When the claim is referred, the Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c)(1) (2017). After referral, the Under Secretary for Benefits must then determine the likelihood that the claimant's exposure to radiation in service resulted in the radiogenic disease. 38 C.F.R. § 3.311(c)(1) (2017). This section provides two options: (i) If after such consideration the Under Secretary for Benefits is convinced sound scientific and medical evidence supports the conclusion it is at least as likely as not the Veteran's disease resulted from exposure to radiation in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction in writing. The Under Secretary for Benefits shall set forth the rationale for this conclusion, including an evaluation of the claim under the applicable factors specified in paragraph (e) of this section. (ii) If the Under Secretary for Benefits determines there is no reasonable possibility that the Veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction, in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c)(1) (2017). Third, and notwithstanding the above, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee, 34 F.3d at 1043-1044. Thus, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether his disability is otherwise the result of active service. In a February 2008 correspondence, the Veteran's private physician noted that the Veteran had metastatic pancreatic cancer that was aggressive in conjunction with follicular lymphoma and that both diagnoses were considered contributory with regard to the cause of the Veteran's death. The physician also noted that the Veteran had significant exposures during service, including to Otto Fuel and to submarine torpedoes and that "while one cannot say whether or not this was truly causative, there is known association between these sources of exposures and malignancy." In July 2013, the Director, Post 9-11 Era Environmental Health Program (DEHP), in a written Memorandum written for the Under Secretary, indicated that it was unlikely that the Veteran's pancreatic cancer could be attributed to ionizing radiation in service. The Memorandum noted that the Veteran's estimated lifetime exposure to ionizing radiation was 0.42 rem. The Memorandum concluded that since the Veteran's radiation dose did not exceed 5 rem in one year or 10 rem in a lifetime, it was unlikely that the Veteran's pancreatic cancer could be attributed to radiation exposure while in the military. As a result of the DEHP opinion, in a July 2013 letter, the Director of Compensation and Pension Service opined that there was no reasonable possibility that the Veteran's pancreatic cancer was the result of exposure to ionizing radiation during military service. Per the November 2013 Board remand instructions, a VA examiner conducted a records review in June 2014. The examiner opined that it was less likely than not that the Veteran's Non-Hodgkin's lymphoma and pancreatic cancer had their clinical onset during service or were related to an in-service injury including exposure to Otto fuel. The examiner noted that the diagnosis of malignancy was made 12 years after his discharge from active service and there was no literature to support the causation of his malignancies from Otto fuel exposure. The examiner also opined that it was less likely than not that the Veteran's Non-Hodgkin's lymphoma was the underlying cause of death as the Veteran was diagnosed with resectable pancreatic carcinoma and died within 6 months from this cancer. The Veteran was also noted to have grade 1 follicular lymphoma from a lymph node biopsy and he appeared to have been asymptomatic from this. The examiner also opined that it was less likely than not that the Veteran's Non-Hodgkin's lymphoma contributed substantially or materially to the cause of death as the Veteran had asymptomatic lymphadenopathy secondary to involvement by Grade 1 follicular lymphoma. This was a very typical presentation of this disorder which often runs an indolent course and was very treatable. The Veteran's death was caused by advanced pancreatic carcinoma and complications of this diagnosis and treatment. Per the March 2016 Board remand instructions, a VA examiner conducted a records review in June 2014. The examiner noted that the Veteran's dosimetry readings reveal that he received 0.412 rems during his military career which was well below all recommended exposures limits by OSHA. This was about the same amount of radiation all persons receive in 15 months from natural background radiation and about 1/20th the radiation from a standard CT scan. The examiner noted that although there was an association between radiation exposure and several cancers including pancreatic cancer, the current medical literature has not yet established a cause and effect relationship between pancreatic cancer and radiation exposure at the level documented in this Veteran during his military service. The examiner indicated that it was not likely that any statistically significant increase in the Veteran's risk of any cancers in excess of the background rate could be calculated from such a low level of exposure. He noted that although some industrial process and some chemical exposures, such as in the petroleum industry which was similar to the Veteran's work with torpedoes and fuels, were associated with increased rates of pancreatic cancer, the current medical literature had not yet established a cause and effect relationship between pancreatic cancer and the industrial, munitions and fuel exposure of the type and quantity documented in the Veteran during his military service. It was noted that the difficulties in pancreatic cancer etiology research were in part due to this being a very common cancer affecting a large portion of the population and creating a large percentage of cancer deaths. Therefore, the examiner indicated that increased risks must be overwhelming in order to be demonstrated to stand out from the large numbers already naturally present. The examiner concluded that it was not possible to objectively determine from the currently available objective evidence the contribution, if any, from the Veteran's documented radiation, chemical and industrial (fuel and torpedo work) exposures to his pancreatic cancer. He noted that they have not been able to demonstrate objective evidence that these exposures of the Veteran's military service caused or aggravated to any degree his pancreatic cancer. Therefore, he was unable to opine whether or not the Veteran's documented exposure to radiation, chemical and industrial (including fuel and torpedo work) or any other effect from his military service caused or aggravated to any degree his pancreatic cancer. Taking into account all relevant evidence, the Board finds that service connection is not warranted for the cause of the Veteran's death. As noted above, the Veteran was on active duty for over twenty years and was exposed to ionizing radiation, as well as other toxic substances. Additionally, his pancreatic cancer is a radiogenic disease, and it manifested 12 years following separation. Notably, the Board has considered the Veteran's private physician's February 2008 correspondence which noted that the Veteran had significant exposures during service, including to Otto Fuel and to submarine torpedoes, and that "while one cannot say whether or not this was truly causative, there is known association between these sources of exposures and malignancy." However, the Board notes that an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature and of little probative value. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting 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). In this instance, the private physician merely indicated that there was an association between the exposures and malignancy, but specifically noted that he could not say whether this was the cause of the Veteran's pancreatic cancer. In contrast, the April 2017 VA examiner provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran's claims file, when concluding that they had not been able to demonstrate objective evidence that the conceded radiation exposures caused or aggravated to any degree his pancreatic cancer. The Board finds this opinion to be highly probative, as the April 2017 examiner provided sound reasoning in his analysis of the Veteran's specific situation. As a result, the Board finds that entitlement to service connection for the cause of the Veteran's death is not established pursuant to the provisions of 38 C.F.R. § 3.311. Although it is conceded that the Veteran was exposed to ionizing radiation in service and dose estimates were obtained, the probative opinion of record reflects that it is very unlikely that the Veteran's pancreatic cancer was attributable to this exposure. As a result, the Board finds that entitlement to service connection for cause of death based on ionizing radiation exposure is not warranted. Accordingly, the claim must now be reviewed to determine whether service connection is warranted for the cause of the Veteran's death on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In this regard, the most probative evidence does not find that the listed immediate causes of the Veteran's death of respiratory failure, urinary tract infection, and small bowel obstruction, with the underlying cause of death being pancreatic cancer was related to any injury or disease during service. As noted above, the June 2014 VA examiner opined that it was less likely than not that the Veteran's Non-Hodgkin's lymphoma and pancreatic cancer had their clinical onset during service or were related to an in-service injury including exposure to Otto fuel. The Board again has considered the Veteran's private physician's February 2008 correspondence which noted that the Veteran had significant exposures during service, including to Otto Fuel and to submarine torpedoes, and that "while one cannot say whether or not this was truly causative, there is known association between these sources of exposures and malignancy." However, the Board again notes that an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature and of little probative value. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting 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). In contrast, the June 2014 VA examiner provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran's claims file, when concluding that it was less likely than not that the Veteran's Non-Hodgkin's lymphoma and pancreatic cancer had their clinical onset during service or were related to an in-service injury including exposure to Otto fuel. The Board finds this opinion to be highly probative, as the June 2014 examiner provided sound reasoning in his analysis. As such, service connection for the cause of death is not warranted on a direct basis. See 38 C.F.R. § 3.303. As a result, the most probative evidence is against a finding that the Veteran's respiratory failure, urinary tract infection, and small bowel obstruction, with the underlying cause of death being pancreatic cancer, which caused the Veteran's death, was in any way related to service, or to a service-connected disability. The most probative evidence also did not determine that any disease which the Veteran developed was caused or a result of any radiation exposure while in service, or from exposure to submarine torpedoes or Otto fuel. Taking into account all relevant evidence, the Board finds that service connection is not warranted for the cause of the Veteran's death. In this regard, the Board notes that the Veteran was not service connected for any disabilities at the time of his death. As to the Veteran's cause of death, respiratory failure, urinary tract infection, and small bowel obstruction, with the underlying cause of death being pancreatic cancer, the most probative evidence has found that these disabilities are not related to service to include radiation exposure while in service, or from exposure to submarine torpedoes or Otto fuel, and there is no evidence that they manifested until many years after the Veteran's separation from service. The Board has also considered the appellant's own lay assertions that the Veteran's death was related to radiation exposure in service. The appellant is competent to relate the Veteran's reports as to symptomatology, and to describe symptoms she witnessed him experiencing while they were together. However, the Board finds that there is no evidence of record to show that she has the specialized medical education, training and experience necessary to render a competent medical opinion on a complex medical matter, such as whether in-service radiation exposure subsequently caused any of the diseases that directly led to his death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Under these circumstances, the Board concludes that the record does not support a finding that a service-connected disability caused or contributed substantially or materially to cause the Veteran's death. The claim for service connection for the cause of the Veteran's death must therefore be denied. In reaching the decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (2002); 38 C.F.R. § 3.102 (2014); Gilbert. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs