Citation Nr: 1804515 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-20 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Air Force, with active duty service from July 1963 through February 1971. The Veteran died in August 2010. The Appellant is his surviving spouse. This appeal comes to the Board of Veterans' Appeals ("Board") from a September 2011 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Des Moines, Iowa (hereinafter Agency of Original Jurisdiction ("AOJ")). The Appellant appeared and provided testimony at a July 2015 videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been reviewed and associated with the Veteran's claims file. Following this July 2015 hearing, the Appellant submitted additional medical evidence and a medical opinion letter from the Veteran's hospice physician. In submitting these additional records, neither the Appellant nor her representative requested initial review by the AOJ. See 38 U.S.C. §7105(e); 38 C.F.R. § 20.1304. Thereafter, in October 2015, the Board requested a specialist medical opinion from the Veterans Health Administration ("VHA") to resolve ambiguities contained in the evidentiary record. See 38 C.F.R. § 20.901(a). In November 2015, the Board secured and associated with the claims folder, the responsive specialist medical opinion. As required by VA law and regulation, the Board provided the Appellant and her representative copies of this report and afforded her time to respond with additional evidence or argument. See 38 C.F.R. § 20.903. The Appellant's representative responded in December 2015, stating the appeal was ready for review. In a letter dated March 2016, the Appellant requested a 90 day extension, so that she may submit additional medical evidence in support of the appeal. The Board granted this request, and advised the Appellant that she was granted an extension until June 21, 2016 to submit additional evidence or argument. To date, the Board has not received any additional evidence from the Appellant or any further requests for an extension. This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS"). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran died in August 2010; the death certificate lists the immediate cause of death as esophageal cancer with liver and bone metastases. 2. The death certificate additionally lists diabetes mellitus as a significant condition contributing to death but not resulting in the underlying cause of death. 3. At the time of his death, the Veteran was service-connected for coronary artery disease, rated as 30 percent, and diabetes mellitus, type II, rated as 20 percent. 4. The preponderance of the evidence of record is against a finding that the Veteran's death was caused by a disability incurred in, or aggravated by, active service, or is etiologically related to any incident or disease incurred in, or aggravated by, active service. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1310, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312, 3.313 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). In letters issued in May 2010 and September 2010, VA notified the Appellant of the information and evidence needed to substantiate and complete her claim, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Appellant also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Appellant be advised to submit any additional information in support of her claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Appellant in obtaining evidence and affording her the opportunity to give testimony before the AOJ and the Board. The Veteran's service treatment and personnel records have been obtained. Post-service VA and private treatment records have also been obtained, including those created at the time of the Veteran's death. The Board finds VA has further satisfied its duty to assist by obtaining three expert medical opinions addressing the theories of Appellant's claim. The Board finds these medical opinions are adequate, as they are based upon a review of the Veteran's medical history, describe the circumstances of the Veteran's death in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds the medical opinions of record are adequate to decide the Appellant's claim and any further development is not necessary to adjudicate the claim decided herein. See also 38 C.F.R. § 3.328. Moreover, the neither the Appellant nor her representative have advanced any procedural arguments in relation to VA's duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Appellant or on her behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Entitlement to Service Connection for Cause of Death The Appellant seeks to establish service-connection for the cause of the Veteran's death. Service connection for the cause of a veteran's death may be demonstrated by showing that the death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. First, as to entitlement to service connection, a claimant must show that a current disability results from a disease of injury incurred in or aggravated by a period of active duty service. 38 U.S.C. § 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In addition, disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Second, VA regulations provide the death of a veteran will be considered due to a service-connected disability when the evidence establishes that such disability was either a principle or a contributory cause of death. See 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.310, 3.312(a). A principal cause of death is one which, singularly 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). A contributory cause of death is one which contributes substantially or materially to death, that combined to cause death, or aided or lent assistance to the production of death. It is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The law also states that service-connected diseases or injuries affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases or injury primarily causing death. 38 C.F.R. § 3.312. For example, where the service-connected condition affects a vital organ and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). That being the relevant generalized law applicable to the Appellant's claim, the Board finds that service connection is not warranted for the cause of the Veteran's death on either a direct basis or a presumptive basis. As an initial determination, the Board finds that the Veteran was not service-connected for the cause of death, the esophageal cancer. VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). Here, the Veteran was known to serve inside the Republic of Vietnam during his active duty service. However, esophageal cancer is not a recognized cancer associated with herbicide exposure. The Secretary of Veterans Affairs also has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). As such, the evidence does not support a finding of presumptive service connection. Notwithstanding the foregoing, the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a Veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. See Brock v. Brown, 10 Vet. App. 155 (1997). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be competent evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. Based upon a thorough review of the Veteran's service medical records, the Board finds there is no evidence to suggest that he experienced any symptoms or signs of esophageal cancer throughout his active duty service. Similarly, In addition, the record contains no indication that esophageal cancer manifested to a compensable degree within one year of the Veteran's military service. Indeed, the record does not show that that the Veteran was diagnosed with esophageal cancer within the first year after his separation from service. As such, service connection on a presumptive basis, either as a chronic disease during service or within one year of service is not established. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1133; 38 C.F.R. §§ 3.303(b), 3.309; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Appellant has additionally argued that the Veteran's service connected diabetes mellitus and/or coronary artery disease caused or contributed to his death. See e.g. July 2015 Hearing Testimony. However, based upon a review of the medical evidence of record, and with consideration of applicable regulations, the Board finds the probative evidence is against this assertion. First, the Board acknowledges that VA's Adjudication Manual instructs that there is a reasonable possibility of service-connected death if the death certificate lists one of the Veteran's service-connected disabilities as a principal or contributory cause of death, and that DIC should be granted when the principal cause of death listed on the death certificate matches one or more of the deceased Veteran's service-connected disabilities. See M21-1, IV.iii.2.A.1.a,b (updated March 14, 2016). While the provisions of VA's Adjudication Manual are not necessarily binding on the Board, in order to fully adjudicate the Appellant's claim, the Board will consider these guidelines. However, the Board finds that the probative evidence of record is against a finding that the Veteran's service connected diabetes mellitus and coronary artery disease combined to contribute to the Veteran's death or contributed substantially or materially to the Veteran's death. Notably, the Board obtained an expert medical opinion in November 2015 from a VHA oncologist. In his opinion letter, the oncologist opined that neither the Veteran's diabetes mellitus nor his coronary artery disease caused, contributed to, or aggravated the Veteran's esophageal cancer. In support of this opinion, the oncologist explained that the Veteran was diagnosed with diabetes mellitus three years prior to his diagnosis for cancer. In those intervening three years, the oncologist explained the medical records show that the diabetes mellitus became "well controlled," with A1c levels reported as 6.2 and 6.3 in 2006 and 2007 respectively. The oncologist acknowledged that the Veteran's glucose levels remained elevated during this period, he reported the evidence did not support a finding that these elevated blood sugar levels worsened the outcome of the esophageal cancer. Rather, the oncologist explained that the Veteran's blood glucose levels showed an initial improvement during the Veteran's early chemotherapy treatment. The oncologist further explained that the Veteran's blood glucose levels were not of such severity to cause an acute problem contributing to or causing the Veteran's death. Based upon his review of the Veteran's medical records, the oncologist stated the highest blood glucose level of record was just above 200 mg/dL. Moreover, the oncologist noted that the Veteran remained on glucose controlling agents following his diagnosis for esophageal cancer. Based upon this evidence, the oncologist opined there was no evidence demonstrating that the Veteran's service-connected diabetes mellitus caused or significantly contributed to the Veteran's death. As for the Veteran's coronary artery disease, the oncologist similarly concluded there was no causal relationship. In support of this opinion, the oncologist stated the Veteran experienced a silent myocardial infarction in 1986. Based upon a review of his medical records, including multiple cardiac examinations, the oncologist observed that the Veteran's cardiac functioning remained wholly within normal limits until the date of his death. For example, the oncologist cited to a 2006 examination which reported the Veteran experienced a normal ejection fraction, normal wall motion, and normal perfusion. Additionally, an echocardiogram dated in January 2010 was normal. The oncologist explained that arteriosclerotic heart disease is typically a process that takes decades to form. Based upon the Veteran's history of normal cardiac examinations, the oncologist opined there was no evidence which would support a finding that the Veteran's service-connected coronary artery disease caused or significantly contributed to the Veteran's death. The evidentiary record contains an additional medical opinion, dated December 2010, from a VA examined in Des Moines. Based upon his review of the Veteran's medical history, the examiner concluded that the probative evidence of record did not suggest that the Veteran's service-connected diabetes mellitus caused or contributed to the Veteran's death. In support of this conclusion, the examiner acknowledged the Veteran's diabetes mellitus was listed as poorly controlled prior to his death, but explained that the treatment for the Veteran's esophageal cancer worsened his diabetes mellitus. The examiner additionally acknowledged the medical literature submitted by the Appellant which purported to show those who with diabetes mellitus have an increased risk of developing esophageal cancer. Based upon the examiner's review of this evidence, and his medical education, the examiner explained that these studied rather showed a diet high in carbohydrates increases the risk of developing esophageal cancer. The examiner further cited to additional medical studies, including one report from "Up to Date," which demonstrate that a diet low in fruits and vegetables, in addition to other factors, accounts for almost 90 percent of esophageal cancers in the United States. The Board finds that both the December 2010 and the November 2015 medical opinions of record are entitled to significant probative weight. Each opinion expressed was based upon a thorough and complete review of the claims file, considers lay statements recorded by the Veteran in submissions to the VA and to medical examiners, and thoroughly considered the Veteran's prior medical history. These opinions are supported by clear rationales, which include citations to the Veteran's pertinent medical history and treatment. As such, the Board finds the December 2010 and the November 2015 medical opinions of record are entitled to significant weight. The Board has read and considered the July 2015 medical opinion, authored by Dr. M.M. the Veteran's supervising physician during his period of hospice care. In this opinion letter, Dr. M.M. states that the Veteran's diabetes mellitus was poorly controlled prior to his diagnosis for esophageal cancer. Continuing, Dr. M.M. opined that in his opinion the Veteran's diabetes mellitus and coronary artery disease "could have been a contributing factor to [the Veteran's death] in a manner that is difficult to ascertain." While the Board has considered this medical opinion, the Board finds that it is entitled to less probative value that the December 2010 and November 2015 medical opinion letters discussed above. See Simon v. Derwinski, 2 Vet. App. 621, 622 (1992)(holding that the Board is permitted to favor one opinion over another provided that it gives adequate statements of its reasons and bases for doing so). First, the Board finds that Dr. M.M.'s conclusion that the Veteran's diabetes mellitus was poorly controlled prior to his diagnosis for esophageal cancer is inconsistent with the medical evidence of record. Based upon a review of the medical evidence, the Board finds that the Veteran's A1c levels were not suggestive of a poorly controlled condition prior to his diagnosis for esophageal cancer. As explained in detail by the November 2015 VHA medical opinion, the evidence does not support a finding that the Veteran's diabetes mellitus caused or contributed to the Veteran's death. Second, the Board finds that the overall conclusion of Dr. M.M. is expressed in vague and speculative terms. Specifically, Dr. M.M. opined that the Veteran's diabetes "could have been a contributing factor" to the Veteran's death "in a manner that is difficult to ascertain." This assessment does little more than opine that the Veteran's diabetes may have potentially contributed to his death, but that the physician is uncertain as to how or to what extent. This assessment is insufficient to establish, by a preponderance of the evidence, that any connection exists. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by in- service events is insufficient to establish service connection). Finally, the Board has fully considered the lay statements of the Appellant and the medical literature she has submitted. However, generic information from a medical journal, treatise, or website is too "general and inconclusive" to establish a medical nexus to a disease or injury, and without application to the specific facts of the Veteran's case, does little to support the Veteran's claims. See Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). As such, this evidence is entitled to little probative value. In conclusion, and upon consideration of the entire record, the Board finds no competent and credible evidence which suggests that a disability incurred in, or aggravated by, military service caused or contributed to the Veteran's death. The Board emphasizes that it is sympathetic to this appellant and is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). As the evidence is against the Appellant's claim, there is no reasonable doubt to resolve in her favor. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs