Citation Nr: 18159183 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-04 843 DATE: December 19, 2018 ORDER The request to reopen the previously denied claim of entitlement to service connection for the Veteran’s cause of death is granted. Entitlement to service connection for Veteran’s cause of death is denied. FINDINGS OF FACT 1. By a July 2010 rating decision, the Appellant’s claim of entitlement to service connection for the Veteran’s cause of death was denied. This rating decision became final. 2. Evidence received since the final July 2010 rating decision is new, and raised a reasonable possibility of substantiating the Appellant’s claim of entitlement to service connection for the Veteran’s cause of death. 3. The Veteran died in November 1998 and his death certificate listed his immediate cause of death as “metastatic colon cancer to liver and peritoneum.” The Veteran was not service-connected for any disabilities at the time of his death. 4. The record is devoid of probative evidence showing the Veteran’s metastatic colon cancer to liver and peritoneum was etiologically or presumptively related to his active duty service. 5. The most probative evidence establishes that the Veteran’s prostate cancer, which was presumptively linked to the Veteran’s herbicide agent exposure during his active duty service in the Republic of Vietnam, was not a principal or contributory cause of the Veteran’s death. CONCLUSIONS OF LAW 1. The July 2010 rating decision denying the Appellant’s claim of entitlement to service connection for the Veteran’s cause of death is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence sufficient to reopen the Appellant’s claim of entitlement to service connection for the Veteran’s cause of death has been received; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. 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, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to October 1970 and from June 1971 to June 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the January 2017 substantive appeal, the Appellant waived her right to a hearing before the Board. The undersigned Veterans Law Judge has been assigned to adjudicate this appeal pursuant to 38 C.F.R. § 19.3(a). Neither the Appellant nor her representative has raised any issues with VA’s duty to notify or VA’s duty to assist in gathering documentary evidence. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); See also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The adequacy of the October 2016 VA medical nexus opinion is discussed below. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-1381 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. New and Material Evidence The preliminary issue for resolution before the Board is whether new and material evidence has been received sufficient to reopen the Appellant’s previously denied claim of entitlement to service connection for the Veteran’s cause of death. After reviewing the evidence of record, the Board finds that new and material evidence has been received. In a July 2010 rating decision, the RO denied the Appellant’s claim of entitlement to service connection for the Veteran’s cause of death. No notice of disagreement was filed, and no new and material evidence was received within one year following the notification of that decision. Accordingly, the July 2010 rating decision became final. In order to reopen a claim which has been denied by a final decision, the Appellant must present new and material evidence. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly received evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Moreover, a claimant need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a veteran submit medical nexus evidence when he has provided new and material evidence as to another missing element). In the July 2010 rating decision, the Appellant’s claim was denied because the evidence failed to demonstrate that the Veteran’s metastatic colon cancer to liver and peritoneum, which resulted in his death, was in any related to the Veteran’s active duty service. Since that rating decision, the Appellant has submitted lay statements and medical articles suggesting that the Veteran’s prostate cancer contributed to his cause of death and/or the development of his metastatic colon cancer to liver and peritoneum. This evidence is new, as it was not previously considered in the prior final rating decision, and is material as it raises questions regarding the unestablished fact of whether the Veteran’s history of prostate cancer contributed to his death. The RO has conceded that the Veteran was exposed to herbicide agents during his Republic of Vietnam service, and prostate cancer is a disease presumptively linked to herbicide agent exposure under 38 C.F.R. §§ 3.307, 3.309(e). The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence. Shade, 24 Vet. App. at 117-118. Accordingly, the Appellant’s claim of entitlement to service connection for the Veteran’s cause of death is reopened. As the RO reopened and considered the underlying merits of the Appellant’s claim in the December 2016 Statement of the Case, the Board may proceed with a merits review of the evidence. Service Connection for Cause of Veteran’s Death The Appellant seeks entitlement to service connection for the cause of the Veteran’s death. Her primary contention on appeal is that the Veteran’s history of prostate cancer caused or contributed to his death and/or the development of metastatic colon cancer to liver and peritoneum, which was listed as the immediate cause of the Veteran’s death on his death certificate. The law provides dependency and indemnity compensation benefits for a spouse of a veteran who dies from a service-connected disability. See 38 U.S.C. § 1310. A service-connected disability is one that was incurred in or aggravated by active military service, or presumptively linked by law to a veteran’s active military service. See 38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312(a). The electronic claims file shows that the Veteran had no service-connected disabilities at the time of his death. For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). 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 disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). The Veteran’s death certificate listed the exclusive immediate cause of death as metastatic colon cancer to liver and peritoneum. There are no disabilities listed as “other significant conditions contributing death” on the death certificate. Unfortunately, metastatic colon cancer to liver and peritoneum is a not a disability presumptively linked to in-service herbicide agent exposure under 38 C.F.R. §§ 3.307, 3.309(e). Thus, these regulations do not assist the Appellant in her pursuit of entitlement to service connection for the Veteran’s cause of death. Furthermore, there is no competent evidence of record establishing, or even suggesting, that the Veteran’s metastatic colon cancer to liver and peritoneum was incurred in, or otherwise etiologically related to, the Veteran’s active duty service. Service treatment records were negative for this condition and it did not arise until more than twenty years after the Veteran’s discharge from active duty. The appellate record contains no competent medical nexus evidence linking the Veteran’s metastatic colon cancer to liver and peritoneum to his military service. Consequently, the evidence weighs against a finding that the Veteran’s cause of death due metastatic colon cancer to liver and peritoneum was related to his military service. The Board has also considered whether the Veteran’s metastatic colon cancer to liver and peritoneum would have been eligible for presumptive service connection under the provisions of 38 C.F.R. §§ 3.303(b) and 3.309(a), as malignant tumors are considered a “chronic disease” under these regulations. However, the evidence weighs against a finding of presumptive service connection. Initially, there were no manifestations or symptoms of metastatic colon cancer to liver and peritoneum during the Veteran’s military service. The Veteran’s service treatment records are silent regarding complaints of, treatment for, or reference to metastatic colon cancer to liver and peritoneum. Moreover, there is no objective medical evidence in the record showing that the Veteran’s metastatic colon cancer to liver and peritoneum developed within one year after separation from active service or has been continuous since discharge. On the contrary, the bulk of the evidence suggests the Veteran’s metastatic colon cancer to liver and peritoneum was not diagnosed until the mid-1990s, more than 20 years after the Veteran’s discharge from military service. Based on these considerations, the presumptive service connection regulations for chronic diseases do not assist the Appellant in her pursuit of entitlement to service connection for the Veteran’s cause of death. The Board is further unpersuaded by the Appellant’s arguments that the Veteran’s history of prostate cancer contributed to his death or the development of metastatic colon cancer to liver and peritoneum, which exclusively led to his death. Prostate cancer is included on the list of diseases associated with herbicide agent exposure during Republic of Vietnam service under the presumptive service connection provisions of 38 C.F.R. §§ 3.307, 3.309. As such, the evidence establishes that the Veteran’s prostate cancer was linked to his active duty service, to include his presumed exposure to herbicide agents in the Republic of Vietnam. However, the Veteran’s death certificate does not list prostate cancer as causing or contributing to the Veteran’s death. The Appellant has undertaken efforts to have her late husband’s death certificate amended to list his history of prostate cancer as, at minimum, contributing to his cause of death. Unfortunately, the Appellant’s efforts have not been successful. Much of the historical medical evidence received in conjunction with the current appeal is duplicative or cumulative of evidence that was considered in the final July 2010 rating decision. These post-service medical records clearly establish that the Veteran underwent treatment for prostate cancer prior to his death. The Veteran underwent a prostate biopsy in November 1995, and the pathologist diagnosed the Veteran with adenocarcinoma of the prostate, with a Gleason grade of 3 + 4 = 7, with perineural invasion, but no extraprostatic involvement. A whole body nuclear bone scan conducted in November 1995 confirmed there was no osseous metastasis at that time. A treatment note dated in July 1998 reported that the Veteran had a radical retropubic prostatectomy with bilateral pelvic lymph node dissection performed in April 1998. However, none of the Veteran’s treatment records establish that the Veteran’s prostate cancer principally caused or contributed to the Veteran’s death. In June 2016, the Appellant submitted several medical articles reporting that patients with prostate cancer may have an increased risk of developing colorectal cancer. See “Prostate Cancer Treatment May Increase Colorectal Cancer Risk;” “Prostate cancer patients at increased risk of precancerous colon polyps;” “Men’s Health – Prostate Cancer Linked with Precancerous Colon Polyps.” Presumably, the Appellant submitted this evidence in an attempt to link the Veteran’s official cause of death—metastatic colon cancer to liver and peritoneum—to his prostate cancer, which is presumptively linked to his military service. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). In this regard, the Board notes that treatise evidence must “not simply provide speculative generic statements not relevant to the Veteran’s claim.” Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, “standing alone,” must discuss “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.” Id. Here, the articles identified above, and submitted for evidentiary consideration, consist of news reports and updates printed off the internet. There is no indication from the record that the research findings discussed in these internet articles were ever published in medical treaties or peer-reviewed medical journals, where the researcher’s techniques and findings would be subject to intense scientific scrutiny by recognized experts in the field of cancer research. Thus, the Board cannot find that the internet articles submitted convey sound medical principles universally accepted by medical professionals. In addition, the Board finds that the internet submissions provide medical information that is very general in nature, inconclusive, and speculative. The fact that limited medical evidence exists demonstrating that individuals with prostate cancer have a statistically increased risk of later developing colon cancer/polyps does not prove that the Veteran’s prostate cancer caused or resulted in the Veteran’s metastatic colon cancer to liver and peritoneum in this particular case. Accordingly, the provided internet articles are entitled to little probative value in this determination, especially in comparison to the particularized findings of the October 2016 VA examiner. The Board notes that the Appellant has submitted three abstracts from peer-reviewed medical journals discussing the relationship between prostate cancer and rectal cancer, which will be discussed further below in the analysis of the October 2016 VA examiner’s conclusions. See “Prostate cancer metastases to the rectum: A case report;” “Rectal infiltration by prostatic adenocarcinoma: a report on six patients and review of the literature;” and “Prostate cancer incorrectly diagnosed as a rectal tumor: A case report” (hereinafter referred to as “peer-reviewed article abstracts”). To grant the Appellant’s contentions full consideration, the Veteran’s electronic claims file was forwarded to a VA examiner in October 2016 for a medical opinion on whether the Veteran’s prostate cancer caused his death. Following a comprehensive review of the evidence, including the peer-reviewed article abstracts referenced above, the VA examiner determined it was less likely than not that the Veteran’s prostate cancer caused the Veteran’s death. In doing so, the examiner addressed the application of the peer-reviewed article abstracts to the Veteran’s medical history. Generally, these peer-reviewed article abstracts stand for the proposition that prostate cancer can metastasize into the rectum, or that prostate cancer can be misdiagnosed as rectal cancer. The VA examiner found that these peer-reviewed article abstracts did not apply to the Veteran’s medical history and that the Veteran’s prostate cancer did not cause his metastatic colon cancer to liver and peritoneum. The VA examiner supported his negative medical nexus opinion with the following explanation. Veteran clearly died from natural progression of his “cecal” (colon) cancer which had already metastasi[z]ed when it was first discovered. The cecal cancer originated in the part of the colon which was away from the prostate[,] and therefore [,] it is not even remotely possible that the prostate cancer spread to [the] cecum and caused the cancer (contrary to reported cases of “rectal” cancer which is adjoining to the prostate). Since[] this patient did not have “rectal” cancer, there can be no connection between these two conditions. Also, the records show the prostate cancer was successfully treated with surgery and [there] was no local or distant metastasis at the time of the treatment. The probability of a prostate cancer somehow going into the cecum without any regional metastasis is very low, and is not a known presentation of prostate cancer. Also[,] the prostate cancer usually causes osseous metastasis (which he did not have on the bone scan) and liver metastasis from prostate cancer are rarely known to occur…Radical prostatectomy does not cause or predispose someone to develop cecal/colon cancer later on in life. Essentially, the VA examiner found that the Veteran’s prostate cancer was successfully treated, and was not otherwise a principal or contributory cause of the Veteran’s death. The VA examiner persuasively explained that the Veteran’s prostate cancer did not, in any way, contribute to or cause the Veteran’s metastatic colon cancer to liver and peritoneum, which ultimately resulted in the Veteran’s death. Additionally, the examiner concluded that the Veteran’s prostate cancer did not cause debilitating effects and general impairment of health to an extent that would render him materially less capable of resisting the effects of other disease or injury primarily causing death. The examiner pointed out that there were no noted debilitating effects and general impairment of health noted in the medical records after the Veteran underwent radical prostatectomy surgery. The VA examiner undertook a comprehensive review of the available evidence, considered the Appellant’s lay contentions, and issued a fully articulated medical opinion based on a correct factual basis and accompanied by an adequate discussion of medical principles applied to the Veteran’s circumstances, sufficient to allow the Board to adjudicate the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Based on these factors, the Board finds that the October 2016 VA examiner’s opinion is highly probative and entitled to significant evidentiary weight in this decision. As the only competent medical nexus opinion of record, the October 2016 VA examiner’s opinion is dispositive of this appeal. In the absence of a legally adequate positive nexus opinion linking the Veteran’s death to his military service, the Appellant is not entitled to service connection for the Veteran’s cause of death. In reaching this conclusion, the Board has considered the Appellant’s lay assertions. See e.g., October 2015 statement. To the extent that the Appellant attributes the Veteran’s death to prostate cancer or his military service, the Appellant is not competent to render such an opinion. This is because the Appellant is a layperson without the specialized training and education necessary to issue competent opinions regarding complex medical matters, such as the cause of the Veteran’s death. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Appellant’s lay statements do not constitute probative evidence in this determination. The Board acknowledges that the October 2016 VA examiner did not expressly address whether the Veteran’s metastatic colon cancer to liver and peritoneum was aggravated by the Veteran’s prostate cancer. See 38 C.F.R. § 3.310. However, the Appellant has not raised such a contention, and there is no medical evidence of record suggesting that the Veteran’s prostate cancer aggravated his metastatic colon cancer to liver and peritoneum. Moreover, the October 2016 VA examiner implicitly rejected such an argument in concluding that there was “no connection” between the two conditions. Considering this, the Board finds no further evidentiary development is warranted, in the form of obtaining a medical opinion addressing aggravation, as such a theory of entitlement has not been raised by the Appellant and is not reasonably raised by the record. See Robinson v. Mansfield, 21 Vet. App. 545, 552-56 (2008) (concluding “that the Board is not required sua sponte to raise and reject ‘all possible’ theories of entitlement in order to render a valid opinion” and “commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record”), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (stating that “[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory”). The Board acknowledges the Appellant’s sincere belief that the Veteran’s death was in some way related to his military service, and that there should be an equitable form of compensation. However, the appellate record lacks any competent, credible, and probative evidence to substantiate the claim. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. § 503; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As the preponderance of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the Appellant’s appeal must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel