Citation Nr: 18150529 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-35 086 DATE: November 15, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in September 2004 and the primary cause of death was cardio-pulmonary arrest due to metastatic adenocarcinoma, with a prior operation to treat respiratory failure and lung cancer. 2. At the time of his death, the Veteran did not have any service-connected disabilities. 3. The Veteran’s cardio-pulmonary arrest, metastatic adenocarcinoma, respiratory failure, and lung cancer were not shown in service or many years after service; and, the preponderance of the evidence fails to establish that these conditions are related to service. CONCLUSION OF LAW The cause of the Veteran’s death is not attributable to a disability incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1310 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1967 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for the cause of the Veteran’s death The Appellant asserts that the cause of the Veteran’s death was related to his military service. In order to establish service connection for the cause of the Veteran’s death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. 38 U.S.C. § 1310 (2012). For a service-connected disability to be the cause of death it must singly, or with some other condition, be the immediate or underlying cause, or else be etiologically related. A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; 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 (2018). The Veteran died in September 2004. According to his death certificate, the primary cause of death was cardio-pulmonary arrest due to metastatic adenocarcinoma, with an operation performed in August 2004 to treat respiratory failure and lung cancer. The Appellant contends that these disorders related to the Veteran’s active service. The evidence indicates, however, that these disorders were not service connected. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). The evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). As an initial matter, the Veteran was not receiving compensation for any service-connected disability at the time of his death. Further, there is no evidence to indicate that he had a service-connected disability that contributed substantially or materially to his death. The service treatment records do not reflect complaints of, treatment for, or a diagnosis related to cardio-pulmonary arrest, metastatic adenocarcinoma, respiratory failure, or lung cancer. Significantly, the Veteran’s separation examination in January 1969 fails to document any complaints of or observed symptoms related to cardio-pulmonary arrest, metastatic adenocarcinoma, respiratory failure, or lung cancer. In fact, the physician performing the January 1969 separation examination observed that the Veteran’s heart, lungs, and chest were “normal.” Similarly, in the report of medical history completed by the Veteran at separation, he reported no shortness of breath, tumors, growths, cysts, cancer, pain or pressure in his chest, or palpitation or pounding heart. The medical evidence dated after service does not reflect symptoms related to cardio-pulmonary arrest, metastatic adenocarcinoma, respiratory failure, or lung cancer for many years after service. Specifically, the treatment records do not indicate that the Veteran contracted or exhibited symptoms of any of these disorders until January 2004, when he was diagnosed with adenocarcinoma over 34 years after service. As part of this claim, the Board recognizes the statements from the Appellant regarding the Veteran’s metastatic adenocarcinoma and lung cancer, including that his exposure to solvents as a medical supply clerk could have caused such disorders. In this regard, while the Appellant is not competent to make a diagnosis related to metastatic adenocarcinoma or lung cancer, as they may not be diagnosed by their unique and readily identifiable features, and thus require a determination that is “medical in nature,” she is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); see Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that service connection cannot be granted solely based on the Appellant’s contention regarding the Veteran’s reported exposure to solvents because there is no medical evidence linking his metastatic adenocarcinoma or lung cancer to solvent exposure. Moreover, the Appellant has not asserted that the Veteran exhibited symptoms related to metastatic carcinoma, lung cancer, a respiratory disorder, or a heart disorder in the immediate years following service. Indeed, the treatment records do not reflect that the Veteran experienced symptoms related to any of these disorders until he was diagnosed with metastatic adenocarcinoma in January 2004, over 34 years after his separation from service. Accordingly, a continuity of symptoms is not shown here. Based on the evidence of record, and the lack thereof, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Parenthetically, the Boards notes the Appellant’s contention that the RO failed to obtain certain unidentified medical records and, therefore, failed in its duty to assist in the development of the claim. As an initial matter, all available outstanding service treatment records were obtained. Additionally, in July 2016, the RO requested medical evidence from several private institutions pursuant to the Appellant’s authorizations and consents to release information to VA for Central Georgia Cancer Care, Emory Healthcare, and a private physician. In August 2016, VA received the requested records from Central Georgia Cancer Care. The private physician indicated that he had no records related to the Veteran. Finally, Emory Healthcare responded that it would not release any records related to the Veteran without the submission of an authorization signed and dated by him. (Continued on the next page)   Despite the Appellant’s assertion that the failure to obtain certain unidentified medical records resulted in the wrongful denial of her claim, the Board concludes that all necessary assistance has been provided in this case. As discussed above, the RO obtained all outstanding service treatment records and took all necessary steps to obtain private treatment records, but Emory Healthcare refused to release any records related to the Veteran to VA without the submission of an authorization signed by the Veteran. Additionally, there is no indication that anything in the unidentified records would impact the claim, as the Appellant has provided no detail as to the content of the records. Finally, as the widow of the Veteran, the Appellant could have obtained the records from Emory Healthcare and submitted such records. Thus, a remand to obtain the unidentified medical records is not appropriate. See Wood v. Derwinski, 1 Vet. App. 190 (1991). CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel