Citation Nr: 18144757 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 05-39 773 DATE: October 25, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. The Veteran died in February 2005. The death certificate lists pneumonia due to cerebrovascular accident, which was caused by coronary artery disease, as immediate cause of death. Diabetes mellitus and hypertension are listed as significant conditions contributing to death. 2. At the time of death, the Veteran was service connected for bilateral hearing loss and tinnitus. 3. The evidence does not demonstrate that the Veteran’s service-connected disorders played any etiological role in his death. 4. The evidence is insufficient to show that the Veteran’s coronary artery disease, hypertension, or diabetes had their onset in service, manifested to a compensable degree within one year of separation, or is related to chemical exposure in service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.304, 3.307, 3.309 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to February 1973. The Veteran died in February 2005. The Appellant is his widow. 1. Entitlement to service connection for the cause of the Veteran's death The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. See 38 U.S.C. § 1310; see also 38 C.F.R. § 3.312. A service-connected disability is considered the “principal” cause of death when that 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). A “contributory” cause of death is inherently one not related to the principal cause. 38 C.F.R § 3.312(c). A contributory cause must be causally connected to the death and must have “contributed substantially or materially” to death, “combined to cause death,” or “aided or lent assistance to the production of death.” Id. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For certain chronic disorders, including diabetes mellitus, coronary artery disease, and hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for conditions claimed to be due to exposure to radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (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 or on active duty for training or inactive duty training, participated in a radiation-risk activity. “Radiation-risk activity” is defined to mean onsite 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; internment as a prisoner of war (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; service in which the service member was, as part of his or her official military duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 Oak Ridge, Tennessee under certain specified conditions; or service performed in a capacity which , if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000 (42 U.S.C. 73841(14)). 38 C.F.R. § 3.309(b)(i), (ii) (2017). Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2) include: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, 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), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C. § 1112 (c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a “radiation-exposed veteran” under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309 (d)(2), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the Veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, “radiogenic disease” means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin’s disease; (xxiii) Prostate cancer; and (xxiv) any other cancer. 38 C.F.R. § 3.311(b)(2). For the presumption to attach, bone cancer must become manifest within 30 years after exposure, leukemia may become manifest at any time after exposure, posterior subcapsular cataracts must become manifest become manifest 6 months or more after exposure, and other diseases specified in §3.311(b)(2) must become manifest 5 years or more after exposure. 38 C.F.R. §3.311(b)(5). Under the special development procedures in § 3.311(a), 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) (2016). In all other claims, 38 C.F.R. § 3.311(a) requires that a request 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). The Appellant asserts that the Veteran’s death was caused by exposure to radiation and chemicals in service due to his role as a nuclear weapons specialist. Notably, the Appellant does not assert that the Veteran was exposed to herbicides. See April 2007 Hearing Transcript. As to the assertions regarding radiation exposure, the Veteran’s reported duties are not “radiation-risk activity” within the meaning of 38 C.F.R. §3.309(d)(3)(ii). In addition, service records include a Record of Occupational Exposure to Ionizing Radiation form which showed that the veteran was tested for exposure regularly from January 1970 to September 1970. Each test result reading showed “0” dose for the specified period. Furthermore, the Veteran does not have a radiogenic disease. As such, the special development procedures of 38 C.F.R. §3.311 are not required, and the presumptive service connection based on radiation exposure does not apply. The Veteran’s death certificate indicates the immediate cause of the Veteran’s death was pneumonia due to cerebrovascular accident which was caused by coronary artery disease. Other significant factors contributing to death included diabetes and hypertension. At the time of death, he was not service-connected for any of those disabilities. The Veteran’s military occupational specialty was nuclear weapons specialist. In February 2008 the Appellant submitted an article indicating that TCE was used as cleaner for nuclear weapons. Of record is also an August 2009 correspondence Internet article describing the responsibilities of a nuclear weapons specialist. In an April 2012 email correspondence between the Veteran and W.B., a nuclear weapons technician who worked at the same facility the Veteran was stationed, confirmed generally that solvents were used to clean weapons. W.B. reported he was unable to go into more detail due to a nondisclosure agreement. A January 2014 memorandum from the U.S. Army Portfolio Director of Occupation and Environmental Medicine indicated that they were unable to determine with certainty the likelihood that the Veteran was or was not exposed to TCE, technetium, dioxin and/or other chemicals while performing his military duties. Resolving reasonable doubt in the Veteran’s favor, the evidence is sufficient to show that the Veteran was exposed to TCE, technetium, and dioxin in service. The issue that remains disputed is whether the disabilities that caused or contributed substantially or materially to the Veteran’s death had their clinical onset in service or is otherwise related to service, to include exposure to TCE, technetium, and dioxin. To this end, the preponderance of the evidence is against the claim. The Veteran’s service treatment records are silent for complaints of or treatment for a heart condition, diabetes, and hypertension. His December 1972 separation examination was normal, and the Veteran reported he was in good health. In August 2002, the Veteran underwent a VA examination in regarding a service-connection claim for diabetes. The examiner opined that the Veteran’s diabetes mellitus was not secondary to radiation exposure. The examiner indicated that he is unaware of any literature to support this. In addition, there is no history of significant radiation exposure in the Veteran’s file and he reported that he has had no specific incidents of exposure. The examiner further opined that the Veteran’s hypertension was not related to his diabetes. In a September 2003 letter, Dr. R.M. of Family Health Center of Sierra Vista opined that it is less likely as not that his chemical exposure contributed to his contracting diabetes mellitus. Dr. R.M. reasoned that the Veteran has a history of chemical exposure to Trichlorethylene (TCE), technetium, and dioxin which were used in cleaning materials that he used in the military of approximately six years while cleaning and maintaining nuclear weapons. Dr. R.M. noted the Veteran had no history of diabetes in his family. Similarly, in a December 2003 letter, Dr. D.G.J. of The University Physicians summarily opined that it is as likely as not that chemical exposure in service caused the Veteran’s diabetes mellitus. In a May 2016 VA medical opinion, the examiner provided a negative opinion as to whether the Veteran’s diabetes is related to service, to include exposure to chemicals. The examiner reasoned that common known risk factors for the development of diabetes include obesity, smoking, elevated blood pressure, high cholesterol, and age. The Veteran had several significant risk factors for the development of diabetes including obesity, smoking, hyperlipidemia, and hypertension. The medical records show the presence of longstanding smoking beginning at the age of 18. Several studies show that smokers have an increased risk of developing type II diabetes compared with nonsmokers; the risk increased as the number of cigarettes smoked per day and pack-year history rises. The Veteran has a 36-68 pack per year history of smoking at the time he was diagnosed with diabetes. The medical records also show that he was obese upon examination for military entrance in both 1965 and 1967 and remained obese at separation in 1973. Similarly, the examiner noted that his blood pressure was abnormal upon military entrance (158/70 in June 1965). The examiner further noted that the medical records indicate that the Veteran was diagnosed with diabetes in 1998 at the approximate age of 52; there is no evidence to suggest an onset of diabetes earlier than the general population especially given his risk factors. Regarding the two positive medical opinions from Drs. R.M. and D.G.J. The examiner opined that they lack probative value because they are not supported by an adequate rationale. The examiner also discussed the numerous medical articles of record. The examiner indicated that there is no indication that the Veteran was exposure to extremely high levels of chemicals, such as were experienced in some of the cases cited in the scientific literature of industrial accidents or sites declared to be EPA superfund sites. The examiner concluded that although the Veteran had no family history of diabetes, he is documented to have had several probably causal risk factors (obesity, age) and associated but not necessarily causal risk factors (hypertension, smoking, and hyperlipidemia), which would indicate a relatively high risk of diabetes without inducing any additional and uncertain causal factors such as the purported toxin exposure of uncertain intensity and duration. The examiner also noted that there is no epidemiologic evidence of a significantly increased risk for diabetes in nuclear weapons workers. It would be very helpful to have more specific information on the exposures, including duration and intensity. But given the strength of the other risk factors for diabetes documented for the Veteran, it is less likely than not that any disability that caused or contributed substantially or materially to the Veteran’s death, including diabetes mellitus had its clinical onset in service or is otherwise related to service including his purported exposure to TCE, technetium, and dioxin. In an April 2017 remand, the Board noted the examiner erroneously indicated that the Veteran’s diabetes started in 1998 and that age was a factor in developing diabetes. The medical evidence indicates the Veteran’s diabetes was diagnosed in 1988. In addition, the examiner did not address whether the Veteran’s heart disorder, including coronary artery disease and hypertension were caused by service or in-service exposure to chemicals. Thus, the Board remanded the claim for an addendum medical opinion. In a July 2018 addendum opinion, the examiner opined that the Veteran’s death was less likely than not that any disability that caused or contributed substantially or materially to the Veteran’s death had its clinical onset in service or is otherwise related to service, to include TCE, technetium and dioxin exposure. The examiner reasoned that although the Veteran reported a history of diabetes since 1988, at the approximate age of 42, this does not change the examiner’s opinion. Even though the Veteran’s age did not likely contribute to the onset of his diabetes, he did have several known non-service related risk factors for development of diabetes including obesity, smoking, elevated blood pressure, and high cholesterol. The examiner further noted that the Veteran’s June 1965 enlistment examination seemed to show an elevated blood pressure of 158/70. However, the blood pressure is hand written and difficult to read. Upon repeat review of the service treatment records, the writing more appears to be 128/70 and therefore, was normal. Regardless of whether the Veteran’s blood pressure was normal or elevated at enlistment, the service treatment records are silent for evidence of hypertension during service. Service treatment records are also silent for evidence of in-service heart conditions including coronary artery disease. Therefore, it is less likely than not that the Veteran’s coronary artery disease and hypertension were incurred while in service. Finally, the examiner noted that there is no objective evidence of exposure to extremely high levels of chemicals. Therefore, it is less likely than not that any disability that cause or contributed substantially or materially to the Veteran’s death (including diabetes mellitus) had its clinical onset in service or is otherwise related to service including purported exposure to TCE, technetium, and dioxin. When reviewing conflicting medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board has carefully considered this information, and ultimately finds that the VA medical opinions are afforded more probative value compared to the private opinions of record. The examiner, discussed all the relevant evidence in the claims file including the Veteran’s service treatment records, post service treatment records and the medical articles of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The private medical opinions fail to provide an adequate rationale and do not address the Veteran’s other medical conditions known to contribute to the onset of diabetes. The examined further opined that the Veteran’s coronary artery disease and hypertension did have their onset in service and are not related to chemical exposure. Significantly, the Appellant has not presented or identified any contrary medical opinion that supports the claim for service connection for cause of death based on coronary artery disease and hypertension. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board finds that the most persuasive evidence of record shows that the Veteran’s coronary artery disease and hypertension did not have its onset in service. Of record are also articles regarding health effects of chemical constituents, TCE, dioxin, the relationship between dioxin and diabetes, job exposure and heart disease, and nuclear weapons facilities and safety risks. See October 2022 Correspondence; February 2008 Correspondence. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1). However, while the articles submitted address chemical exposures and health consequences, it does not contain any information or analysis specific to the Veteran’s case. As such, the evidence is of limited probative value. The Veteran and Appellant are competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the Veteran’s coronary artery disease, diabetes, or hypertension had their onset in service or are related to chemical exposure in service requires medical expertise to determine. Finally, the Board has considered whether service connection on presumptive basis is warranted based on the Veteran’s chronic diseases. However, the evidence does not show that the Veteran’s hypertension, diabetes, or coronary artery disease manifested to a compensable degree within one year of separation. (Continued on the next page)   Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s cause of death was not related to service. Accordingly, entitlement to service connection for cause of death is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel