Citation Nr: 1801306 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-08 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania 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 M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from November 1977 to August 1994. He died in March 2010, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Board remanded the matter for additional development. FINDINGS OF FACT 1. The Veteran died from respiratory failure caused by lung cancer with a history of tobacco abuse. 2. The established service-connected disabilities did not, singly or jointly with another disability, cause or contribute to his death, and the cause of death is not otherwise related to service, to include hazardous chemicals from burn pits or oil fires. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Laws and Regulations A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive Dependency and Indemnity Compensation (DIC). 38 U.S.C. § 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 the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as 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). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; 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)(1). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran 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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for certain chronic disabilities, including malignant tumors, if they are shown to have manifested to a compensable degree within one year after the Veteran was separated from service or through a showing of "continuity of symptomatology" since service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; cf. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's representative also references the provisions of 38 U.S.C.A. § 1318. DIC benefits can also be established when a veteran is 100 percent service connected for certain time periods, including 10 years prior to his death. Here, the Veteran was receiving a 10 percent rating; thus, these provisions are not applicable. II. Analysis The appellant seeks entitlement to service connection for the cause of the Veteran's death. She maintains that the Veteran's service-connected hypertension was a significant contributing factor in his lung cancer, which led to his death. In the alternative, she contends that exposure to environmental hazards during documented service in Southwest Asia during the Persian Gulf War during the relevant period caused or contributed to his death. The record shows that the Veteran's lung cancer was diagnosed in 2009. The death certificate reflects that the cause of his death was respiratory failure, due to and/or as a consequence of non-small cell lung cancer, due to and/or as a consequence of a history of tobacco abuse. An April 2010 letter from a doctor at an Army medical center notes treatment of the Veteran on one occasion for hypertension and states that hypertension increases a person's general overall risk for death, and that hypertension may have played a role in the Veteran's death. The Board does not find the opinion persuasive to substantiate a connection between the Veteran's hypertension and death as the opinion does not provide clinical data or a rationale to support the opinion. Also, the opinion is uncertain as it uses the phrase "may." A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185 (1999). As noted in a December 2010 VA opinion, no explanation as to mechanism was provided in the April 2010 opinion. Thus, while the April 2010 opinion further triggered VA's duty to assist to obtain a medical opinion, it does not serve to substantiate the claim. Additionally, the December 2010 VA opinion concludes that hypertension did not play a causative or contributory role in the Veteran's death. The opinion notes review of the claims file in support of the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, both the December 2010 opinion and a September 2016 VA opinions note that the death certificate lists no other cause of death other than respiratory failure, due to and/or as a consequence of non-small cell lung cancer, due to and/or as a consequence of history of tobacco abuse. Moreover, it is not shown that the disease process leading to the Veteran's death had its onset during service, or was otherwise related to, his active military service or service-connected disability. First, service treatment records are negative for findings or a diagnosis of lung disease/cancer. Although isolated pneumonia was noted in January 1985, and complaints of shortness of breath with increased heart beat were noted in September 1986, records in October 1986 and November 1988 reflect that the chest was clear to auscultation and percussion, and the assessment was hypertension. In addition, an October 1990 examination report showing that the lungs and chest were normal notes discussion of associated risks and benefits with respect to stopping tobacco use. The accompanying Report of Medical History reflects that he denied having or having had asthma, shortness of breath, pain or pressure in the chest, and chronic cough. A December 1991 record reflects that he smoked one pack of cigarettes per day. The January 1994 retirement examination report shows that the lungs and chest were normal, and use of cigarettes/tobacco was noted. No gross cardiopulmonary abnormalities were reported on chest x-ray examination, and his physical stamina was assigned a profile of "1." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). On the accompanying Report of Medical History, he denied having or having had asthma, shortness of breath, pain or pressure in the chest, and chronic cough. The September 2016 VA medical opinion concluded that the cause of the Veteran's death is less than likely related to service. Medical literature referenced from the American Cancer Society was noted to state the following: Smoking is by far the leading risk factor for lung cancer. About 80% of lung cancer deaths are thought to result from smoking. The risk for lung cancer among smokers is many times higher than among non-smokers. The longer you smoke and the more packs a day you smoke, the greater your risk. The September 2016 VA opinion notes no evidence of a diagnosis of lung cancer in the service treatment records or within one year after separation. In addition, the presumptive service connection provisions regarding Persian Gulf War veterans are inapplicable because lung cancer is a known clinical disease and not an undiagnosed illness or manifestation of a medically unexplained chronic multisymptom illness, or included on the list of presumptive infectious diseases, and has been found to be less than likely the result of his service in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(a)(1)(i)-(ii). Furthermore, the September 2016 VA opinion notes no medical evidence in either the Veteran's records or in any scientifically based medical literature to support the appellant's contention that the Veteran's lung cancer, diagnosed in June 2009, was caused by exposure to open burn pits and the fallout from oil fires during his service in the Persian Gulf. Furthermore, to the extent the Veteran's respiratory disorder resulting in death resulted from tobacco use during service, such is precluded from service connection. See 38 U.S.C.A.§ 1103; 38 C.F.R. § 3.300. In reaching this conclusion, the Board has considered the lay evidence of record. Although the Board notes the appellant's opinion, a potential connection between the Veteran's hypertension and/or exposure to environmental hazards during service and the etiology of his lung cancer/disease is not subject to lay observation. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the cause of the Veteran's death and any relationship between the disease processes leading to death, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the appellant is not competent to provide an etiological connection between service or service-connected disability and the Veteran's death, to include any inference of a continuity of symptomatology, because such a determination is medically complex in this specific case. The Board finds the December 2010 and September 2016 VA medical opinions to be significantly more probative than the appellant's lay assertions. In sum, as the VA expert medical opinions are the most probative evidence weighing against the appellant's claim, the claim must be denied. Although the appellant's case is sympathetic in nature and the Veteran had a long period of honorable service, the preponderance of the evidence is against the claim and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for the cause of the Veteran's death is not warranted. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs