Citation Nr: 1808708 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-29 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from June 1943 to June 1946. He passed away in January 2010, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In May 2014, the appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In June 2014 and May 2016, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran died of pneumonia. 2. The evidence does not show that the Veteran's pneumonia or any other respiratory disorder had its clinical onset during service or was related to any incident of service, or was a manifestation of his service-connected shell fragment wound to the chest. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death are not satisfied. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION When a veteran dies of a service-connected disability, VA shall pay disability and indemnity compensation (DIC) benefits for the cause of death to the Veteran's surviving spouse, children, and parents. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of death, the evidence must show that a service-connected disability was either the principal cause of death or a contributory cause. 38 C.F.R. § 3.312(a). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c). In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially to the cause of death. Id. Entitlement to DIC benefits for the cause of a veteran's death may be established by showing that a disability for which service connection has already been awarded was the principal or a contributory cause of death. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Otherwise, the claimant must first establish service connection for a disability shown to have caused or contributed to the veteran's death. Id. Service connection will generally be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 252 (1999). For chronic diseases listed under 38 C.F.R. § 3.309(a), if the chronic disease manifested in service or during a presumptive period following service separation, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). If chronicity during service is not established, service connection may be established by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b). This requires evidence demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, the Veteran passed away on January 6, 2010. His death certificate lists the cause of his death as pneumonia. During the Veteran's lifetime, service connection had been established for residuals of a shell fragment wound to the chest, rated noncompensable (as a scar) under Diagnostic Code 7805. The appellant seeks service connection for the cause of the Veteran's death, asserting that his terminal pneumonia was related to his service-connected residuals of shrapnel fragment wounds. Specifically, she asserts that he had shrapnel fragments in his lungs that resulted in a chronic lung pathology that eventually contributed to his death. See, e.g., May 2014 Board Hearing Transcript; April 2011 Decision Review Officer (DRO) Hearing Transcript. She further testified that the Veteran had chronic lung problems since separating from service and stated that various physicians treating the Veteran in the years since his separation from active duty associated his history of recurrent pneumonia with shrapnel fragments in his lungs. See id. These assertions echo the Veteran's statements adduced in conjunction with claims for increased ratings for his service-connected shrapnel fragment wound residuals. See, e.g., December 1992 Statement (reporting a history of "chronic cough and congestion" and stating that his "xrays show fragments in [his] lung"); September 2003 Letter (noting the presence of shrapnel in his chest); August 2007 Statement in Support of Claim (VA Form 21-4138) (noting that he suffers from "[s]hrapnel in left lung and thorax"); February 2008 Letter (reporting "[s]hrapnel in left lung and thorax"). The Board notes that the Veteran and his wife are competent to describe the onset and continuity of observable symptomatology such as chronic coughing and additional lung pathology, and are also competent to report what they have been told by medical professionals, including that the Veteran had been diagnosed with "chemical pneumonia" and that he had metal fragments in his lung/chest that resulted in pulmonary dysfunction. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (finding that lay testimony regarding first-hand knowledge of a factual matter is competent); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007) (noting that a layperson is competent to report what she was told by a medical professional). See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent to establish the presence of observable symptomatology and" may provide sufficient support for a claim . . ."); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, the Board finds no reason to doubt the credibility of the Veteran and his spouse in reporting his ongoing lung symptomatology and the findings of his former treating physicians concerning the shrapnel in his chest/lung. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this regard, the Board notes that the assertions concerning the chronic lung pathology and metal fragments in the chest are bolstered by his private treatment records, including specifically radiological reports from June 1989, January 1990, January 2000, October 2005, and April 2009 noting the presence of foreign bodies in his chest. See, e.g., August 1985 Choate-Symmes Hospitals Discharge Summary (reflecting a hospitalization for "left lower lobe pneumonia"); June 1989 Emerson Hospital Radiological Report (noting that "there are two curved densities 3 by 1.0 mm in size[, o]ne is in the right axilla and one overlies the left lateral chest[,] . . . of uncertain etiology"); January 1990 Emerson Hospital Radiological Report (noting the presence of a "radiopaque foreign body projected over the left third anterior interspace"); June 1992 Emerson Hospital Radiological Report (reporting a clinical history of chronic cough); January 2000 Emerson Hospital Radiology Report (noting that "a high density oval structure overlies the mid left lung"); October 2005 Emerson Hospital Radiology Report (reflecting a "stable tiny metallic density in the left chest" as well as a "[l]inear density at the left base [that] likely represents scarring"); April 2009 Emerson Hospital Radiology Report (diagnosing "[n]ew bipolar pneumonia" and noting the presence of "[m]etallic foreign material [that] overlies the left thorax which may be a missile fragment"). Despite the foregoing, the appellant, as a layperson is not competent to associate the Veteran's terminal pneumonia either with his history of lung problems or with the shrapnel in his chest/lung, as she does not possess the requisite medical training to render such an etiological opinion. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). See also Jandreau, 492 F. 3d at 1376-77 (observing that a layperson is not competent to identify or diagnose complex medical conditions such as cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (holding that a claimant's "conclusory generalized statement that his service illness caused his present medical problems" was not sufficient to entitle him to a VA examination); Barr, 21 Vet. App. at 309 (holding that lay testimony is not competent with respect to determinations that are "medical in nature"); see, too, Layno, 6 Vet. App. at 469-71 (noting that lay testimony is not competent in matters requiring specialized knowledge, training, or medical expertise). Accordingly, the Board remanded the claim in July 2014 for the provision of a VA opinion concerning the potential relationship between the Veteran's service-connected shell fragment wound residuals and his death from pneumonia. The Board noted the appellant's assertions concerning the onset and continuity of the Veteran's lung pathology; her testimony concerning the statements of his treating physicians attributing his history of pneumonia to the shrapnel in his lung/chest; and the Veteran's statements regarding his chronic pulmonary symptoms and the presence of shrapnel in his lung/chest. In so noting, the Board directed that the VA examiner "should accept the statements of the Veteran and his widow as credible" for the purposes of determining the likelihood that the Veteran's residuals of shrapnel fragment wounds, especially to the chest, caused or contributed to his death from pneumonia. See July 2014 Board Remand. The requested opinion was provided in June 2015. The VA examiner determined that it was less likely than not that the Veteran's residuals of shrapnel fragment wounds, especially to the chest, caused or contributed to his death from pneumonia. In support of this opinion, the VA examiner discussed two VA radiographic reports that were "notable for the absence of any mention of shrapnel in the chest wall or lung parenchyma." The examiner determined that these two radiographic studies "must be accepted as definitive evidence that the Veteran did not sustain other than superficial shrapnel wounds to the chest." Accordingly, because "there is no evidence in available records that the Veteran ever had shrapnel in his lungs," the June 2015 VA examiner found the Veteran's death to be unrelated to his active service. This opinion lacks probative value because the examiner failed to consider or address the Veteran's private treatment records, discussed above, identifying metallic densities in his chest. See Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Accordingly, the Board again remanded the claim in May 2016 for another medical opinion concerning the potential relationship between the Veteran's shrapnel fragments in his chest and his terminal pneumonia. In May 2017, a different VA examiner reviewed the Veteran's records and provided an opinion. The examiner noted that the Veteran sustained multiple shrapnel wounds, to include of the chest, in April 1945. The wounds were described as multiple small punctures that healed with scars. There was no evidence of penetrating chest trauma that resulted in pneumothorax. The examiner went on to recount the Veteran's post-service medical history as reflected in his treatment records, and noted that subsequent to 2005/2006 his clinical condition was complicated by severe gait instability with multiple falls, some with head injuries, and by dysphagia with aspiration of gastric contents leading to multiple episodes of aspiration pneumonia or pneumonitis often referred to as "chemical pneumonitis" and severe respiratory failure. The examiner stated that the issue of possible shrapnel identified as metallic fragments in the lung fields was of critical importance in this review. He noted that beginning in 1946, the Veteran had many chest x-rays performed during his lifetime and that the majority of these x-rays did not report any evidence of retained metallic fragments in the chest. However, he stated that at least three available x-ray reports in later life described relevant findings. The films of June 21, 1989 described two tiny curved densities-one in the right axilla and the other overlying the left lateral chest embedded in the soft tissues of the chest. The films of June 29, 2009 described a metallic density projected over the left 5th rib that was present on a prior study. And the films of October 5, 2005 described a stable tiny metallic density in the left chest likely the same metallic density described earlier. The examiner explained that all of these chest x-rays confirmed that the metallic densities identified on these films were extrapulmonary (i.e., outside the lungs and pleura), and that none were lodged or retained within the lung parenchyma where they could form a nidus for a subsequent pneumonic process including pneumonia or pneumonitis. Thus, the examiner concluded that it was less likely than not that shrapnel from the original wounds sustained by the Veteran in 1945 were the cause of the recurrent pneumonias that ultimately led to his death. The Board finds that the preponderance of the evidence shows that service-connected disability did not cause or contribute to the Veteran's death. Because pneumonia is not defined as a chronic disease under 38 C.F.R. § 3.309(a), service connection may not be established solely based on chronicity in service or a continuity of symptoms after service. See Walker, 708 F.3d at 1338. The service treatment records are negative for any complaints or findings of a respiratory disorder, including pneumonia. The record shows that pneumonia was first diagnosed many years after service. The May 2017 VA examiner's opinion constitutes probative evidence weighing against a relationship between the Veteran's recurrent pneumonias and his in-service shrapnel injury to his chest, as well as against a finding that the Veteran's recurrent pneumonias were a manifestation of (or were caused or aggravated by) his service-connected shell fragment wound to the chest. See 38 C.F.R. § 3.310. As noted above, during the Veteran's lifetime this disability was characterized as a scar and was rated as noncompensable under 38 C.F.R. § 4.118, DC 7805. The May 2017 VA examiner acknowledged the presence of metallic densities within the Veteran's chest. However, he went on to explain that the metallic densities identified on the Veteran's x-rays were extrapulmonary (i.e., outside the lungs and pleura), and that none were lodged or retained within the lung parenchyma where they could form a nidus for a subsequent pneumonic process including pneumonia or pneumonitis. Thus, the medical evidence weighs against a finding that the Veteran's recurrent pneumonias were related to his in-service shrapnel injury to the chest; against a finding of causation or aggravation of the pneumonias that caused the Veteran's death by his service-connected shell fragment wound of the chest; and also against a finding that the Veteran's service-connected shell fragment wound of the chest directly caused, contributed to, or accelerated his death. The VA examiner's opinion outweighs the appellant's lay statements. Whether the Veteran's service-connected disabilities may have directly caused or contributed to his death, or caused or aggravated a condition playing a role in his death, is a complex determination that is not within the province of lay observation but rather requires an understanding of the nature of the conditions involved, including how they progress and affect other conditions or functioning, and the various medical factors having a bearing on the issue. Thus, for these reasons, although lay testimony may be competent evidence with respect to both the diagnosis and the etiology or cause of a disability, the determination in this case requires medical expertise and accordingly a competent medical opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error to reject "categorically" lay statements on the issue of medical nexus, and similarly to make a categorical finding that a medical opinion was required); see Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"). Thus, given the medically complex nature of this determination, the appellant's statements alone are not competent evidence, as she is a lay person in the field of medicine and thus does not have the expertise to render an informed opinion on this issue. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). The probative value of her statements must be discounted on this basis. See id. at 470-71 (in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). Moreover, regardless of whether the appellant's statements concerning her own opinion or what various physicians treating the Veteran had told her constitute competent evidence, they are outweighed by the opinion of the May 2017 VA examiner. The VA examiner's opinion represents the informed, objective conclusion of a medical professional with a high level of expertise, and is supported by a specific explanation based on the Veteran's medical history and application of medical principles. Accordingly, the VA examiner's opinion carries more weight than the appellant's (and the Veteran's) statements. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Madden, 125 F.3d at 1481 . The Board has carefully considered the evidence, including the appellant's testimony, and regrets that it cannot render a favorable decision in this matter. However, the Board is bound by the law, and this decision is dictated by the applicable statute and regulations. The Board is without authority to grant benefits on any other basis. See 38 U.S.C.A. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994); see also Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). In sum, the preponderance of the evidence is against the claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for the cause of the Veteran's death is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals