Citation Nr: 18106975 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-09 230 DATE: June 1, 2018 ORDER Entitlement to service connection for cause of the Veteran's death is denied. FINDING OF FACT 1. The Veteran died in October 2013. His death certificate listed the immediate cause of death as metastatic colon cancer. Additional conditions contributing to his death were listed as chronic obstructive pulmonary disease (COPD) and atrial fibrillation. 2. An autopsy was performed, which showed additional contributing factors to the Veteran’s death that included squamous cell carcinoma-hilar area right lung with metastatic tumor within the right lymph nodes, occlusive coronary artery atherosclerosis, emphysema of the bilateral lungs, and fibrous plaque surface of diaphragm. 3. At the time of his death, the Veteran was not service-connected for any disabilities. 4. The probative evidence of record shows the Veteran’s death was not caused by a disability that was related to his active duty service. CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from November 1960 to July 1964. The Veteran died in October 2013. The Appellant is his surviving spouse. In March 2018, the Appellant was provided a hearing with the undersigned Veterans Law Judge, and a transcript of the proceeding is of record. Service Connection for Cause of Death Service connection may be granted for the cause of a veteran’s death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran’s death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability 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; Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Factual Analysis The Appellant contends that the Veteran’s colon cancer and his right lung cancer, to include his COPD and other lung issues, were caused by the Veteran’s in-service exposure to asbestos, which contributed to the Veteran’s death. The Veteran’s military personnel records confirmed the Veteran was aboard the U.S.S. Procyon, and his exposure to asbestos has been previously conceded. Thus, the issue turns upon whether the Veteran’s disabilities which contributed to his death, were related to his military service. See Ruiz v. Gober, 10 Vet. App. 352 (1997). The Board finds they were not. The Board notes that the Veteran’s service treatment records (STRs) do not show any complaints regarding the Veteran’s lungs, breathing, or abdominal pain. The Veteran’s separation examination showed no complaints or marked disabilities. In August 2013, the Veteran’s file was sent to a VA examiner for an opinion. The examiner opined that the Veteran’s colon cancer with metastasis to the lungs was less likely than not incurred in or caused by asbestos exposure during military service. The examiner rationalized the Veteran’s cancer was adenocarcinoma of the colon with metastasis of the lungs, and there is no history of other pulmonary problems such as pleural plaques, mesothelioma, pulmonary nodules, or other signs of asbestosis or heavy asbestos exposure. The examiner further explained the Veteran did not present with early signs of cough, pneumoconiosis pleural plaques, or other pulmonary conditions that might have been associated with asbestos. The examiner stated that the risk factors for colon cancer do not include asbestos and his lung cancer is metastatic from the colon, not related to asbestos. Following the examination, the Appellant provided a private autopsy report. The autopsy report found the Veteran’s final anatomic diagnoses were colon carcinoma with metastatic mucinous colonic adenocarcinoma with the liver, squamous cell carcinoma in the right lung and metastatic tumor within the right lymph nodes, coronary artery atherosclerosis, emphysema of the lungs, and fibrous plaque of the diaphragm. In January 2015, two more medical VA opinions were obtained. The examiner first opined that the Veteran’s colon cancer with contributing COPD and atrial fibrillations were less likely than not incurred in or caused by the claimed in-service illness of asbestos exposure. The examiner rationalized there is no physiologic association between asbestos and the development COPD or atrial fibrillation. The examiner stated the Veteran’s COPD was due to his extensive tobacco use and atrial fibrillation is an abnormal heart rhythm with no association with asbestos exposure. The examiner further stated that she was in agreement with the August 2013 opinion that medical literature does not support asbestos as a cause for adenocarcinoma of the colon. The examiner stated cigarette smoking is a known cause for the development of colon cancer. Then, the examiner opined that the Veteran’s lung cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that smoking is the primary risk factor for the development of lung cancer and is estimated to account for approximately 90 percent of all lung cancers. The examiner stated it is less likely as not that the Veteran’s lung cancer was caused by asbestos exposure in view of the overwhelming primary risk factor of smoking. The examiner provided that the Veteran had an extensive smoking history and the Veteran did not have a diagnosis of asbestosis. In July 2015, an additional VA opinion regarding the Veteran’s squamous cell carcinoma of the right lung was provided. The examiner opined that the Veteran’s squamous cell carcinoma of the right lung was less than likely incurred in service. The examiner rationalized that the Veteran was discharged from service in 1964 and there are several chest x-rays from 2001 through 2009 that do not show any evidence of lung cancer. The examiner stated had the lung cancer incurred in service, chest x-rays prior to 2013 would have shown it. The examiner then opined that the Veteran’s squamous cell carcinoma of the right lung was less than likely caused by asbestos exposure during service. The examiner rationalized that the Veteran’s primary military occupation was a typist and thus, would have had minimal probability of having asbestos exposure. The examiner further rationalized that the Veteran worked in a gold mine for 23 years and mining is an occupation associated with asbestos and radon exposure, which both are associated with lung cancer. The examiner stated there is not enough evidence providing sufficient details of handling asbestos while in service that can be concluded there was significant asbestos exposure on duty. The Board notes that additional medical evidence of record shows no diagnosis of asbestosis at any time during the Veteran’s life. However, the Veteran’s records do confirm the Veteran worked as a miner for over 20 years, was an extensive tobacco smoker, and continued to smoke tobacco well after his initial colon cancer diagnosis. His VA treatment records also show his COPD was referred to as smoking related. After review of all the evidence, the Board finds the August 2013, January 2015, and July 2015 VA medical opinions to be of significant probative value in determining the Veteran’s conditions were not related to his military service. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physicians’ opinions were based on a review of the Appellant’s contentions, the Veteran’s reported medical history, a review of the medical evidence of record, and review of medical literature. Further, complete and thorough rationales were provided for the opinions rendered, including explanations of what were the likely cause of the Veteran’s cancers and subsequent conditions. The Board acknowledges the Appellant’s assertions that the Veteran’s cancers and subsequent conditions were due to his in-service asbestos exposure. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Appellant is competent to report symptoms and diagnoses the Veteran had, any opinion regarding whether his cause of death is related to his military service, to include asbestos exposure, requires medical expertise that the Appellant has not demonstrated. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Further, the Board also acknowledges the Appellant’s March 2018 hearing testimony, in which she stated that the Veteran also had Agent Orange exposure. The Board notes after a review of the Veteran’s military records, the evidence of record does not show the Veteran was exposed to Agent Orange. The Veteran’s records do not show he was present on the landmass or waters of Vietnam at any point during his service. See Haas v. Peake, 525 F.3d 1168 (2008). The record shows the Veteran was stationed in California and Japan during his service, and his brief time on the U.S.S. Procyon was not shown to have included the transport of Agent Orange or vehicles contaminated with Agent Orange. Thus, the evidence of record does not support a claim for Agent Orange exposure. Additionally, with respect to any claim of entitlement to DIC benefits under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased Veteran’s surviving spouse in the same manner as if the Veteran’s death was service-connected, even though the Veteran died of non-service-connected causes, if the Veteran’s death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the Veteran’s release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former prisoner of war who died after September 30, 1999. 38 U.S.C § 1318 (2012). Here, the evidence does not show that the Veteran was a prisoner of war, nor was the Veteran service-connected for any disability at the time of his death. Accordingly, DIC benefits are not warranted. In light of the foregoing, the Board concludes that the preponderance of evidence is unfortunately against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel