Citation Nr: 18146185 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-02 711 DATE: October 30, 2018 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents coincident with his service in the Republic of Vietnam from December 1965 to December 1966. 2. The Veteran is acknowledged to have been exposed to asbestos consistent with his military occupational specialty (MOS) of FN, or fireman. 3. The Veteran’s death certificate indicates that he died in May 1993 with the immediate cause of death listed as metastatic adenocarcinoma, etiology unknown. 4. During his lifetime, the Veteran was service-connected for mechanical low back pain, brain aneurysm, and bilateral hearing loss. 5. A disability of service origin did not cause or contribute to the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the U.S. Army from April 1962 to April 1968, to include combat service in the Republic of Vietnam, and in the U.S. Navy from September 1972 to September 1984. He was the recipient of numerous awards and decorations, to include the Combat Infantryman Badge. The Veteran died in May 1993 and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 1998 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In April 2016, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2016, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for the cause of the Veteran’s death, to include as due to exposure to herbicide agents and/or asbestos. At her April 2016 Board hearing and in documents of record, the appellant contended that the Veteran’s cause of death was directly related to his military service, to include exposure to herbicide agents and/or asbestos. In this regard, she alleged that the Veteran’s primary cancer site was the prostate or the lungs, as opposed to the pancreas. She further alleged that the Veteran was exposed to various toxins consistent with his duties in the engine room on ships, and had symptoms of a cough while on active duty, which continued to the time of his death. Therefore, the appellant claims that service connection for the cause of the Veteran’s death is warranted. The Veteran’s death certificate indicates that he died in May 1993 with the immediate cause of death listed as metastatic adenocarcinoma, etiology unknown. At the time of his death, he was service-connected for mechanical low back pain, brain aneurysm, and bilateral hearing loss. Service connection for the cause of a veteran’s death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of the veteran’s death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially; combined to cause death; aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. Service-connected diseases or injuries involving active processes 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 injuries primarily causing death. 38 C.F.R. § 3.312(c)(3). Minor service-connected disabilities, particularly those of a static nature, or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). There are primary causes of death, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as a malignant tumor, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease 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). As noted previously, VA has acknowledged that the Veteran served in the Republic of Vietnam during a period from December 1965 to December 1966 and, thus, is acknowledged to have been exposed to herbicide agents coincident with such service. In this regard, if a veteran was exposed to an herbicide agent during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The Board notes that, while prostate cancer and respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) are included in the list of diseases acknowledged to be presumptively related to exposure to herbicide agents, metastatic adenocarcinoma is not. However, notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Additionally, based on the Veteran’s MOS of FN, or fireman, his exposure to asbestos has been acknowledged. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With regard to the medical evidence of record, the Veteran’s service treatment records (STRs) for his periods of active duty are negative for any findings, complaints, or diagnoses referable to a metastatic adenocarcinoma. October 1959, April 1962, and November 1965 Reports of Medical History reveal his report of whooping cough. He also reported pain or pressure in the chest in April 1962, and chronic cough in November 1965. However, the corresponding Report of Medical Examination notes that clinical evaluation of the Veteran’s lungs and chest were normal. A March 1976 STR notes the Veteran’s complaint of 6 to 7 days of left anterior chest pain, sharp in nature, non-radiating, and aggravated by rolling over in bed and coughing. Such record further notes that, upon examination, the Veteran’s chest was non-tender to palpation or pressure, and an assessment of chest wall versus pleural pain was rendered. A July 1980 Report of Medical History, as well as February 1982 and March 1984 STRs, note his report of pain or pressure in chest. However, upon examination in March 1984 and January 1986, his lungs were clear. An undated STR indicates the Veteran’s complaint of chest pain; however, later the same day, he indicated that he did not experience any episodes of similar morning chest pain and appeared to be fine. After service, a May 1993 VA treatment record reveals the Veteran’s complaint of worsening abdominal pain, which was sharp, and started in the lower umbilicus and radiated to the midepigastrium. Such record further reveals that the Veteran was seen in April 1993 with similar complaints, and a CT showed pancreatic inflammation with a question of pseudocyst versus carcinoma of the head of the pancreas. Additionally, such record indicates that, upon examination, the Veteran’s lungs were clear and his chest was without gynecomastia. Once the Veteran was admitted, a significant abnormality on his plain chest X-ray films with consideration of interstitial lung disease versus acute respiratory distress syndrome versus infectious source was noted. Such record further indicates that the Veteran underwent a thoracoscopy and subsequent pathology was positive for adenocarcinoma, question primary lung versus metastatic. Diagnoses of adenocarcinoma of the lung, question primary lung versus metastatic disease; pancreatitis; and hematuria were noted. In connection with the appellant’s claim, a VA medical opinion was obtained in February 2013. As noted in the June 2016 Board remand, the February 2013 VA examiner opined that it was more likely than not that the Veteran’s primary cancer site was the pancreas, and it was less likely as not that the Veteran had a diagnosis of prostate cancer. However, VA treatment records noted that possible primary cancer sites included the Veteran’s lung and prostate. Additionally, the examiner did not offer an opinion was to whether the Veteran’s fatal cancer, regardless of the primary site, was directly related to his acknowledged in-service exposure to herbicide agents and/or asbestos. Furthermore, while the February 2013 VA examiner indicated that it was less likely as not that the Veteran had interstitial lung disease due to an environmental exposure such as asbestos, the examiner did not address any other possible toxins, or consider the appellant’s testimony regarding relevant complaints during and since service. Moreover, no opinion regarding whether the Veteran’s service-connected disabilities caused or contributed to his cause of death had been obtained. The Board further noted that the appellant submitted a medical opinion in June 2016 in which a physician indicated that, upon a review of the available information as to the Veteran’s death and medical history, he was unable to conclude that his metastatic adenocarcinoma had its primary lesion in his lungs or pancreas, or if he possibly had two primary lesions. However, as such opinion was speculative in nature, the Board found that such could not be relied upon in adjudicating the claim. Consequently, the Board found such opinions to be inadequate to decide the instant claim and remanded the case in order to obtain an addendum opinion addressing the aforementioned inquiries. In an August 2018 addendum opinion, the VA examiner found that it was less likely than not that the primary site of the Veteran’s fatal metastatic adenocarcinoma was either the prostate or the lungs. As rationale for the opinion, the examiner reported that STRs documented complaints and treatment referable to chest pain, congestion, and shortness of breath, but there was no ongoing chronicity of symptoms. The examiner further reported that the Veteran developed abdominal pain especially with eating and had lost significant weight, and was diagnosed with gastritis and reflux. Additionally, the examiner indicated that the records on file indicated that the Veteran experienced dyspnea on exertion and an abdominal CT noted a pancreatic mass and lung findings consistent with interstitial lung disease. The examiner further indicated that the notation of voiding dark urine only related to the Veteran’s hydration status and not etiology of cancer. The examiner noted that pathology reports revealed a diagnosis of adenocarcinoma with the comment that the primary site could not be determined from biopsy, and possible sites included the lung and prostate. Here, the examiner explained that immunology testing was being completed, but results were not available. The examiner further explained that the Veteran’s oncologist had noted that prostate was unlikely, although his biopsy had some characteristics of that type of cancer. The examiner further noted that the Veteran had epigastric pain and a pancreatic mass, and was diagnosed with pancreatitis with markedly elevated enzymes. The examiner concluded that, with the Veteran’s marked weight loss as well, it was more likely than not that he had metastatic pancreatic cancer rather than primary lung or prostate cancer. The August 2018 VA examiner further found that it was less likely than not that the Veteran’s cause of death, to include consideration of metastatic adenocarcinoma regardless of the primary site, was related to any aspect of his service, to include his acknowledged in-service exposure to herbicide agents, asbestos, and/or other possible toxins consistent with his duties in the engine room on ships. As rationale for the opinion, the examiner reported that there were many cancers that were presumed to be related to asbestos and herbicide exposure, or other exposures, but there were also many cancers that had not been found to be related. The examiner further reported that having a specific exposure may increase an individual’s risk of some types of cancer, but did not increase the individual’s chances of all cancers. Here, the examiner explained that pancreatic cancer was a likely primary, but in the absence of a known primary, it was impossible to determine which exposure may have been important in the potential development of the Veteran’s cancer. Additionally, the examiner indicated that the Veteran’s spouse reported that he had ongoing chest pain, congestion, and shortness of breath. Here, the examiner noted that records after the Veteran’s craniotomy showed that he had complaints of midline sternal chest pain (non-radiating, non-exertional), and he reported two weeks of dry cough on his admission examination, positive shortness of breath with abdominal pain, and positive dyspnea on exertion with walking 50 feet. The examiner further noted that such history would be in conflict with the Veteran’s wife’s history of the Veteran having an ongoing cough from service until his death. The examiner concluded that the history of the Veteran at the time of illness would be considered more reliable than the spouse’s report of his symptoms many years later. Finally, the August 2018 VA examiner found that it was less likely as not that the Veteran’s service-connected disabilities of mechanical low back pain, brain aneurysm, and/or bilateral hearing loss caused or substantially or materially contributed to his death. As rationale for the opinion, the examiner reported that the Veteran had metastatic cancer to his lungs diffusely and developed acute respiratory distress syndrome, and his systems shut down. Here, the examiner concluded that there was no evidence to support the contention that the Veteran’s service-connected disabilities caused or substantially or materially contributed to his death. The Board finds that the opinions provided by the August 2018 VA examiner to be highly probative. In this regard, the opinions reflect consideration of all relevant facts and the examiners provided a detailed rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, there is no contrary medical opinion of record, and neither the appellant nor her representative has identified an existing opinion by a competent professional to support her claim. The Board notes that the appellant and her representative have contended that the Veteran’s cause of death is directly related to his military service. The appellant and her representative, as a lay people, are certainly competent to report matters which are readily observable. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, in the instant case, the Board finds that the question regarding the etiology of the Veteran’s fatal metastatic adenocarcinoma to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); Jones v. Brown, 7 Vet. App. 134, 137 (1994) (where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). In this regard, such question involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. There is no indication that the appellant or her representative possess the requisite medical knowledge regarding such matters. Therefore, the Board affords their statements as to the cause of the Veteran’s death no probative weight. Furthermore, there is no indication that a malignant tumor manifested within one year of the Veteran’s separation from service in September 1984. Rather, the first indication of such was almost a decade later in 1993. Additionally, while the appellant reported a continuity of respiratory symptomatology since service, the highly probative VA opinion rendered in August 2018 indicated that the likely primary site for his fatal cancer was the pancreas rather than the lungs. Furthermore, the examiner found that the appellant’s statements were in direct conflict with the contemporaneous medical records. Therefore, while sympathetic to the appellant’s claim, the Board finds that the Veteran’s metastatic adenocarcinoma is not shown to be causally or etiologically related to his military service, to include his acknowledged in-service exposure to herbicide agents and asbestos, and a malignant tumor did not manifest within one year of his service discharge. Furthermore, the Board finds that a disability of service origin did not cause or contribute to the Veteran’s death. As such, service connection for the cause of the Veteran’s death is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence is against the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel