Citation Nr: 1803908 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 13-32 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Michael W. Dale, Attorney WITNESSES AT HEARING ON APPEAL Appellant and D.T. ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran who served on active duty from August 1942 to May 1946 and from July 1949 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2015, the appellant testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. This appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal was found to warrant advancement on the docket at the April 2015 hearing based upon the appellant's age. FINDING OF FACT The persuasive evidence of record demonstrates that the Veteran died as a result of pneumonia with contributing factors of metastatic cancer and chronic obstructive pulmonary disease, 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. §§ 1110, 1112, 1116, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the appellant nor her attorney 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. § 1310 (2012); 38 C.F.R. § 3.5(a) (2017). The service-connected disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2017). 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. §§ 1110, 1131 (2012). 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. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). 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). Disorders, including respiratory 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. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). 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). VA has determined, however, that pharynx cancers, including to the tonsils, and digestive cancers, including to the esophagus, have no positive associated with herbicide exposure. See M21-1, IV.ii.2.C.3.k. 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 (2017). 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 Vietnam. In statements and testimony in support of the claim the appellant reported that the Veteran had been sick upon his return from Vietnam with a sore throat and cough that he self-treated with sprays, vitamins, and lozenges. She reported he had a productive cough that was intermittently more severe. VA records show service connection was established for the residuals of prostate cancer (60 percent), gout (20 percent), arterial hypertension (20 percent), coronary artery disease (10 percent), cold injury residuals to the left lower extremity (10 percent), cold injury residuals to the right lower extremity (10 percent), calcific tendonitis to the right shoulder (0 percent), hepatomegaly (0 percent), residuals of a gunshot wound to the left knee (0 percent), and erectile dysfunction (0 percent). His combined service-connected disability rating at the time of death was 80 percent. The Veteran's death certificate shows he died in November 2008 with an immediate cause of death due to pneumonia and contributing factors of metastatic cancer and chronic obstructive pulmonary disease (COPD). An autopsy was not performed. Service treatment records are negative for complaint, treatment, or diagnosis of any disorder associated with the cause of his death. In his March 1971 report of medical history for retirement the Veteran noted problems with tonsillitis during his first period of service, but none recently. He denied any history of a chronic cough. His March 1971 retirement examination revealed a normal clinical evaluation of the lungs and chest. Records show the Veteran served in the Republic of Vietnam from September 1966 to August 1967. VA examination in October 1971 noted an evaluation of the respiratory system revealed no cough or expectoration. An X-ray study of the chest was normal. Private treatment records show the Veteran had a history of prostate cancer resulting in prostatectomy in the 1990's without recurrence. He was treated for tonsillar cancer and moderately differentiated squamous cell carcinoma of the oropharynx in 2007. A November 2007 computerized tomography scan revealed no evidence of recurrent neoplasm. A November 2008 report noted a longstanding history of laryngeal cancer. VA medical opinion in February 2011 found the Veteran did not have primary prostate cancer metastatic to tonsils and had no evidence of having primary laryngeal cancer. The examiner noted that the record was reviewed and that there was no evidence of laryngeal cancer. It was further noted that his prostatic cancer was successfully treated and appeared have remained in remission without evidence of recurrence. The examiner found that it appeared that the Veteran had esophageal cancer which contributed greatly to his death with dysphagia from this condition and multiple episodes of pneumonia likely from aspiration. It was noted that the reference to longstanding laryngeal cancer in the Veteran's record more than likely came from reported history, but that it was not supported by the medical record. 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 pneumonia with contributing factors of metastatic cancer and COPD, and that a disability of service origin did not cause or contribute substantially or materially to his cause of death. There is no evidence that a malignant tumor attributable to his death was manifest within one year of his separation from active service nor that pneumonia or COPD developed during or as a result of active service. Consideration has been to the March 1971 report of medical history wherein the Veteran reported having no recent problems with tonsillitis and denied any history of a chronic cough. An October 1971 VA examination in October 1971 also noted an evaluation of the respiratory system revealed no cough or expectoration and an X-ray study of the chest at that time was normal. There is no evidence of pneumonia or COPD for many years after service. Further, as cited to above, service connection may not be presumed for the primary cancers to the tonsils, pharynx, or esophagus based on exposure to herbicide agents. There is no competent medical evidence linking the Veteran's presumed exposure to herbicide agents to those cancers. Moreover, while service connection was in effect for prostate cancer, the competent and probative evidence establishes that it was in full remission and played no part in the Veteran's development of cancers to the tonsils, pharynx, or esophagus or his death. In short, the Board finds the February 2011 VA medical opinion is persuasive that the metastatic cancer implicated in the Veteran's death was not related to his service-connected prostate cancer nor to a respiratory cancer for which service connection may be presumed. 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). There is no competent medical opinion to the contrary. 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, and the assertions of the appellant and D.T. that he had a chronic cough that had continued since his return from Vietnam. 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 and D.T. are competent to report observable symptoms, but finds there is no indication that they are competent to etiologically link any such symptoms to a medical diagnosis. They are 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 they 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