Citation Nr: 1805373 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 11-27 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1968. He died in October 2009. The appellant is his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction of the appeal has since been transferred to the Denver, Colorado RO. The appellant testified before the undersigned Veterans Law Judge in November 2013. A transcript of that proceeding has been associated with the claims file. This matter was previously before the Board in September 2014, at which time it was remanded for further development of the record. FINDINGS OF FACT 1. The Veteran died in October 2009; his death certificate listed the immediate cause of death as respiratory failure due to, or as a consequence of metastatic cancer to the lungs. 2. The Veteran was not service-connected for any disabilities during his lifetime. 3. The weight of the competent and probative evidence shows that metastatic cancer to the lungs was not present in-service or for many years later, and it is not related to a disease or injury in service, to include asbestos exposure. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior to consideration of the merits of an appeal, the Board must ensure that VA has met its duty to notify the appellant of the information and evidence necessary to substantiate a claim and to assist in obtaining relevant evidence. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA's duty to notify the appellant as to the information and evidence necessary to substantiate her claim was satisfied by a letter dated in March 2010. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and the VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any unobtained, relevant, available evidence. Furthermore, in 2009 and 2017, VA obtained medical opinions as to the etiology of the Veteran's fatal cancer. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the appellant is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection for Cause of the Veteran's Death - Applicable Law and Regulations Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In determining whether a service-connected disability contributed substantially or materially to death, the evidence must show that it combined to cause death or 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). A disability may be service-connected if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish a right to compensation for a present disability, a veteran must show (1) a present disability; (2) an 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, 1167 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities, such as malignant tumors, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including lung cancer, may be service connected if the requirements of 38 U.S.C. § 1116 (2012) and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307 (d), 3.309(e) (2017). For a Veteran to be entitled to the presumption of service connection under 38 C.F.R. § 3.307 (a)(1)(6)(iii), he or she must have been present at some point on the landmass or "inland waters" (aka brown waters) of Vietnam. Haas v. Peake, 525 F.3d 1168, 1182-83 (Fed. Cir. 2008). Such inland waterways include "rivers, estuaries, canals and deltas 'inside the country.'" Gray v. McDonald, 27 Vet. App. 313, 321 (2015). The presumption of herbicide exposure is also extended to veterans who served on ships where deck logs reference "anchoring [in] or entering the 'mouth of' the Cua Viet River, Saigon River, Mekong River Delta, Ganh Rai Bay, and the Rung Sat Special Zone." Id. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued certain procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005); see also McGinty v. Brown, 4 Vet. App. 428, 432 (1993). These guidelines note that the inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce various other cancers and tumors particularly in the chest and throat. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9; see also Ennis v. Brown, 4 Vet. App. 523 (1993). It is noted that persons with asbestos exposure have an increased incidence of various cancers, including cancers of the lung, bronchus, larynx and pharynx. Factual Background A review of the evidence of record shows that the Veteran was not service connected for any disability in his lifetime. He died in October 2009. His death certificate lists a cause of death of respiratory failure due to, or as a consequence of metastatic cancer to the lungs. With respect to the Veteran's cancers, historically, private treatment records reflect that he was initially diagnosed with renal cell carcinoma in February 2005. See McKesson Treatment Records. A tumor in the posterior right parietal lobe of the brain was also discovered at that time. See McKesson MRI Study of the Head, February 8, 2005. A February 2005 Surgical Pathology Report confirmed a diagnosis of right parietal tumor, consistent with metastatic renal cell carcinoma. A contemporaneous CT scan of the chest noted "a few tiny peripheral non-calcified nodules in both lung bases...too small for characterization or attempt for biopsy...follow up exam with nonconstrast CT in three to four months suggested." The brain tumor was subsequently excised in February 2005. Treatment records from the Oasis of Hope (Dr. C.) show that an abdominal CAT scan was performed on March 29, 2005, and that the tumor persisted in the upper pole of the left kidney. An April 2005 CT scan of the chest revealed no active pulmonary, pleural, cardiac, or mediastinal abnormalities. An April 2005 treatment note from the Presbyterian Healthcare Services noted that the Veteran had metastatic cancer to the right frontal parietal brain, status post February 2005 excision, with subsequent radiation therapy. The note references that the Veteran was also treated in Mexico. According to the Veteran's wife at that time, the primary tumor in the kidney was "undetectable" on the subsequent CT scan in 2005. The physician noted that "this part of the history" would have to be confirmed with the Veteran's oncologist. An April 2005 treatment note from Dr. C. confirmed a diagnosis of metastatic kidney cancer to the brain. The treatment notes reflected a familial history of both lung cancer and kidney cancer. Private treatment records reflect that the Veteran developed a cough in February 2009 and balance problems and confusion in June 2009. A May 2009 CT scan of the chest revealed "too numerous to count" small bilateral lung nodules, suspicious for metastatic parenchymal disease, without evidence of mediastinal or hilar adenopathy. There was no significant pleural effusion. A large mass in the left upper quadrant (renal mass) was also noted. A June 2009 Arizona Oncology note again reflected reports that the Veteran had been treated for kidney cancer in Mexico in 2005, and that (according to the Veteran and his wife) no cancer could be detected in his body at that time. The oncologist stated that it was unclear whether or not imaging or further evaluation was conducted. Upon examination in June 2009, the assessment was metastatic renal cell carcinoma, with a January 2005 date of diagnosis, and noted metastases to the lung and brain. A June 2009 Arizona Oncology note reflected a diagnosis of renal cell carcinoma, metastatic to the lungs and brain, status post resection followed by whole brain radiotherapy for solitary metastasis, 2005. The oncologist noted that the Veteran's disease had "essentially been untreated since the brain metastasis was resected, and he received radiotherapy in 2005." He stated that the course "of this cancer has, thus, been quite indolent." An August 2009 CT scan report reflected bilateral pulmonary nodules consistent with pulmonary metastatic disease, which increased in size and number from the prior examination. An October 2009 VA opinion was obtained in association with the Veteran's claim for Aid and Attendance and service connection for lung cancer. The Veteran was not able to attend the examination due to illness. The examiner noted that the Veteran "was not specifically diagnosed with asbestosis initially in the record; rather, he was diagnosed with brain and kidney cancer, and then found to have metastases to the bone and lung...The Veteran's imagining studies do NOT show evidence of hilar and mediastinal lymphadenopathy, which is consistent with asbestosis, however parenchymal disease was found, which is suggestive of asbestosis." The examiner went on to state that the current cancer in the lungs was due to metastatic process from renal cell carcinoma and not due to asbestos exposure. After review of the 2009 VA examination report, the appellant's assertions, and the private treatment records, a May 2017 VA examiner opined that the Veteran's cause of death was at least as likely as not metastatic renal cell carcinoma; that it was less likely than not that the Veteran's fatal lung cancer was a primary cancer caused by in-service asbestos exposure; that it was less likely than not that the Veteran has a diagnosis of asbestosis; and that it was less likely than not that asbestosis contributed to the Veteran's cause of death. The examiner stated that the evidence did not support a finding that the Veteran was cancer free in 2005 and that the collective record suggested that the persistent kidney cancer was left untreated. Also, concurrent with the renal mass and brain metastasis, numerous pulmonary nodules were documented. In reviewing the serial imaging overtime, the examiner stated that the lung nodules progressed in size concurrently with the renal mass, supporting progression of metastatic cancer. Finally, the examiner stated that the oncologist and subject matter expert who followed the Veteran in 2009, documented that the history and imaging all supported renal cell carcinoma metastatic to the lungs and brain. He noted that further biopsy would be unnecessary if the brain tumor pathology supported renal cell carcinoma, which it did. The VA examiner also stated that he did not agree with an asbestosis diagnosis, noting that the cumulative data pointed to metastatic renal cell carcinoma to explain the lung nodules. The examiner also noted that the Veteran had extensive imaging and had no documented lung findings, such as pleural plaques, that were suggestive of underlying asbestos related disease. Analysis The appellant argues that the Veteran's fatal lung cancer was not, in fact, part of the metastatic process (i.e., that it did not metastasize from the kidney), but rather a primary cancer, initially diagnosed in 2009, which directly stemmed from asbestos and/or Agent Orange exposure during active service. As an initial matter, with respect to the issue of diagnosis, the most competent and probative medical evidence of record reflects that the Veteran's fatal lung cancer was not a primary cancer and that his diagnosis (and ultimate cause of death) is most accurately characterized as metastatic renal cell carcinoma to the lungs. Indeed, the 2009 and 2017 VA examiners both opined that the Veteran's lung cancer was due to the metastatic process from untreated renal cell carcinoma initially diagnosed in 2005. Moreover, contrary to the appellant's assertions, and as confirmed by the May 2017 VA examiner, the medical evidence does not show that the Veteran was "cancer free" in March 2005. See Appellant's Timeline Statement. Rather, a March 29, 2005, Oasis of Hope CT scan showed that the tumor persisted in the kidney at that time; the Veteran went untreated thereafter until he became symptomatic with pulmonary symptoms in 2009. Private treatment records dated in 2009 consistently characterized the Veteran's cancer as "renal cell carcinoma metastatic to the lungs." Significantly, there are no medical opinions or other medical evidence of record that contradict the above findings. The Board finds that, collectively, the VA opinions and private medical records are highly probative as to the issue of diagnosis/cause of death. The VA 2017 VA opinion, in particular, was based on a thorough review of the Veteran's medical history, including CT scans, MRI reports, x-rays, and other medical findings, and it contained extensive rationale. In short, for purposes of this analysis, the pertinent diagnosis, and the ultimate cause of the Veteran's death, is metastatic renal cell carcinoma to the lungs. This is consistent with the cause of death listed on the Certificate of Death. The Board has thoroughly reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the disorder listed on the Veteran's death certificate- namely, metastatic renal cell carcinoma to the lungs - was related to the Veteran's service, to include as the result of herbicide agent and/or asbestos exposure. As to the issue of service connection on a direct incurrence basis, service treatment records do not reflect any complaints, treatment or diagnoses of kidney or pulmonary cancer. Significantly, the Veteran's respiratory, lungs/chest, and genitourinary systems were all normal upon separation examination in February 1968. Private treatment records show a diagnosis of renal cell carcinoma in 2005 and metastatic cancer to the lungs (or, pulmonary metastatic disease) in 2009, which is more than 30 years after separation from service. The normal medical findings at the time of separation from service, and the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against a finding of service connection for metastatic renal cell carcinoma. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). With respect to the claimed in-service asbestos exposure, the Veteran's DD Form 214 lists the Veteran's military occupational specialty (MOS) as a machinist's mate. According to a May 2002 Memorandum regarding Asbestos Claims, the Veteran had probable exposure to asbestos during service based on his occupation. Thus, in-service asbestos exposure is substantiated. However, the most competent and probative evidence of record does not reflect that the Veteran's metastatic renal cell carcinoma to the lungs was related to such exposure. Again, the May 2017 VA examiner opined that it was less likely than not that the fatal lung cancer was a primary cancer caused by in-service asbestos exposure, while the October 2009 VA examiner opined that the lung cancer was due to the metastatic process from renal cell carcinoma and not due to asbestos exposure. In other words, the probative medical evidence unequivocally shows that the Veteran's fatal cancer was the direct result of primary renal cell carcinoma with metastases to the lungs. Notably, the appellant has not made an allegation that the Veteran's underlying, primary renal cell carcinoma was in any way related to asbestos exposure, and the record does not otherwise reasonably raise such a relationship. Thus, there is no basis upon which to find that the Veteran's renal cell carcinoma with metastases to the lungs had its onset during service, that it manifested to a compensable degree within the one-year period following service discharge, or that it was related to in-service asbestos exposure. In so finding, the Board notes that the issue of whether the Veteran had a diagnosis of asbestosis was raised by the record. The 2009 VA examiner indicated that the Veteran had findings suggestive of asbestosis, but stopped short of diagnosing such, while the May 2017 VA examiner unequivocally found that the Veteran did not have asbestosis. There are otherwise no findings of asbestosis in the record. In short, the preponderance of the competent and probative evidence of record does not establish that the Veteran had a diagnosis of asbestosis during his lifetime. With respect to the claimed exposure to herbicide agents/Agent Orange, neither the appellant nor the Veteran (during his lifetime) alleged that the Veteran set foot in the landmass of Vietnam. Rather, the appellant primarily asserts that the Veteran was exposed to herbicide agents while serving in the bilges of the engine room on the U.S.S. Franklin D. Roosevelt (CVA 42). Service personnel records confirm that the Veteran served aboard the U.S.S. Franklin D. Roosevelt in 1965, 1966, and 1967. Review of the ship's logs and a February 2015 response from the Joint Service Records Research Center (JSRRC) show that the U.S.S. Roosevelt arrived in Subic Bay, Philippines, on August 1, 1966. The ship then conducted special operations on Yankee Station off the Coast of North Vietnam from August to December 1966. The command history noted that the ship returned to the Gulf of Tonkin in October 1966. The February 2015 JSRRC response found that the ship's history did not document that the ship docked, transited inland waterways or that ships personnel stepped foot in the Republic of Vietnam. The JSRRC also noted that there was no record of Agent Orange being in the bilges of the engine room of the U.S.S. Franklin D. Roosevelt. The JSRRC response reflected that it was unable to locate documentation which verified that US Navy ships or aircraft transported stored or used tactical herbicides, including Agent Orange in the Republic of Vietnam. An August 2015 Formal Finding found that, based on the response from JSRRC, no further action could be taken to attempt to verify the Veteran's alleged exposure to herbicide used from May 17, 1964, to March 5, 1968. In short, the Veteran's exposure to herbicide agents was not verified. An October 2015 Formal Finding again confirmed that no further herbicide exposure development should be conducted based on the JSRRC's findings. Based on the ship logs and the aforementioned responses from the JSRRC, the U.S.S. Franklin D. Roosevelt had service off the shores of Vietnam during the period in which the Veteran was stationed aboard. However, service exclusively offshore on the open ocean is not considered service in the Republic of Vietnam for purposes of the presumptive provisions pertaining to exposure to herbicides. Haas v. Peake, 525 F.3d 1168, 1192 (Fed. Cir. 2008). Notably, the Gulf of Tonkin is not an inland waterway or coastal harbor within the meaning of the regulation governing presumed exposure to herbicides in Vietnam. Additionally, the U.S.S. Franklin D. Roosevelt is not listed as a vessel associated with exposure to herbicide agents. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (July 28, 2016). With respect to the appellant's contention that the Veteran was exposed to herbicide agents in the ship's bilges/engine room, the JSRRC reviewed official documents, ship logs, and other sources and found that no evidence existed which showed Navy ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides, to include in the bilges of the U.S.S. Franklin D. Roosevelt. See JSRRC Reports. In short, exposure to herbicide agents, or Agent Orange, has not been established in this case. Accordingly, as the Veteran is not considered an herbicide-exposed Veteran under 38 C.F.R. §3.307(a)(6)(iii), it shall not be presumed that a disease, such as lung cancer, has resulted from exposure to herbicide agents under such circumstances. The appellant may still establish service connection with proof of actual direct causation. Here, however, there is no competent evidence that the Veteran was exposed to herbicide agents during service. The appellant's allegation of such is insufficient to establish that occurrence, particularly when VA received multiple responses from the JSRRC that the Veteran was not exposed to herbicide agents. The Board accords more probative value to the JSRRC findings, which is based on documentation, than the appellant's allegation without any evidence to support such allegation. While the appellant has set forth various theories as to the type of cancer the Veteran had (i.e., primary or metastatic), and the relationship between the cancer which resulted in his death and service, there is no evidence that she is qualified to render a medical opinion as to the diagnosis and/or etiology of the cancer which led to the Veteran's death. 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 issues in this case, i.e., whether the Veteran's cancer is related to service, or whether the lung cancer was a primary cancer, 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) (lay persons not competent to diagnose cancer)." Consequently, her statements, without some form of objective medical corroboration, are not probative. For all the reasons discussed above, the preponderance of the evidence is against the conclusion that the Veteran's listed cause of death, namely, metastatic renal cell carcinoma to the lungs, was incurred in or aggravated during military service, including on any presumptive basis. In arriving at the decision to deny the claim for service connection for cause of the Veteran's death, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs