Citation Nr: 19190893 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 12-28 003 DATE: December 3, 2019 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. Section 1318 is denied. FINDINGS OF FACT 1. The evidence does not establish that a service-connected disability was either the principal or a contributory cause of the Veteran’s death, or that his death resulted from any disability incurred in or aggravated by service. 2. The Veteran was in receipt of a TDIU from August 2002 to the time of his death in January 2010. 3. The Veteran was not continuously rated as totally disabled for a period of at least 10 years prior to his death. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2018). 2. The criteria for DIC under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1943 to February 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in January 2010. The appellant is his surviving spouse. The appellant testified before the undersigned in an April 2016 hearing. A transcript of this hearing is of record. Thereafter, the Board procured outside medical opinions in September 2016 and August 2019 to further develop the appellant’s claim. The appellant has been provided copies of these opinions, and her representative presented argument acknowledging their contents in late October 2019. DIC 1. Entitlement to service connection for the cause of the Veteran's death The appellant seeks service connection for the cause of the Veteran’s death. To establish that a Veteran died from a service-related disability, i.e., service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service was either a principal or contributory cause of death. 38 C.F.R. § 3.312 (2018). For a service-connected disability to be the principal cause of death, it must singularly 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) (2018). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (2018). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the standards and criteria applicable to service connection claims generally are to be applied. 38 U.S.C. § 1310(a) (2012). 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, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The immediate cause of death on the Veteran’s death certificates is metastatic neuroendocrine tumor. This was confirmed in an April 2011 letter from Dr. AKR, the Veteran’s treating physician. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (d). The Veteran was diagnosed with this disorder after radiologic testing in March and April 2009 when he presented with a four to six-month history of intermittent abdominal pain. At the time of his death, the Veteran was service connected with the following conditions: 1) ankylosis and residuals of a gunshot wound in the left knee and residuals of a left leg fractured femur; 2) residuals of a gunshot wound in the right thigh, muscle group XIV; 3) degenerative disc disease of the lumbar spine; 4) tinnitus; chronic osteomyelitis in the left femur; and 5) left ear hearing loss. The Veteran was in receipt of a TDIU since August 2002. The evidence does not suggest, nor does the appellant contend, that the Veteran’s tumor is directly related to his military service. The appellant asserts that the Veteran had a weakened immune system due to his service-connected disabilities, causing his cancer or aiding in the development of his cancer. This contention either raises a secondary theory, that the Veteran’s service-connected disorders caused his cancer, or it suggests that the Veteran’s service-connected disorders were a contributory cause to his death by enabling the spread of cancer due to a weakened immune system. After a thorough review of the evidence, the Board finds that service connection for the cause of the Veteran’s death is not warranted. In support of her contention, the appellant submitted an April 2011 statement from Dr. AKR. Dr. AKR indicated that the Veteran’s chronic physical and emotional stress from his war wounds and their resulting disability “could have conceivably caused him to develop cancer due to adverse effects on his immune system.” This statement is not adequate to establish that the Veteran’ service-connected disabilities contributed substantially or materially to the Veteran’s death, combined to cause his death, or aided or lent assistance to the production of his death. Dr. AKR’s opinion tends to show that there is a conceivable relationship, which is speculative. As such, it has limited probative value. See Bloom v. West, 12 Vet. App. 185, 186-87 (1999). A VA medical opinion was obtained in January 2012. The examiner noted that the Veteran’s service-connected conditions were not known to cause any immune deficiency, contrary to the April 2011 private opinion to Dr. A.K.R. The examiner continued, noting that Veteran’s tumor type was weakly associated with acquired immune deficiency. The examiner also cited to October 2009 VA records that document a normal white blood cell count with a “left shift of the differential”, this evidently showing pre-mortem evidence of a competent immune system. Based on this explanation, as well as his review of the Veteran’s medical record, the examiner opined that the Veteran’s cause of death was less likely as not to be due to his service-connected injuries and disabilities causing demonstrable immune system deficiency which contributed to the development of cancer. To reconcile the April 2011 private and January 2012 VA opinions, an outside specialist opinion was rendered in September 2016. The doctor agreed with the April 2012 VA examination and disagreed with Dr. AKR, explaining that the literature on carcinoid tumors of the gastrointestinal tract had few known risk factors, the main one being a genetic predisposition based on a mutation. The risk factors did not include individuals with weakened immune systems, such as patients with AIDS or congenital immunodeficiency. The doctor was unable to find any report associated the Veteran’s tumor with lead exposure or with shrapnel, or, gunshot wounds. Further, explained the doctor, even if the Veteran’s tumor and cancer were a disease to which patients with weakened immune systems were prone, the link between pain or stress and weakened cellular immunity is tenuous. To summarize, the opinion essentially made two findings: 1) the Veteran’s cancer was not likely caused by a weakened immune system; and 2) even if a weakened immune system predisposed one to the Veteran’s cancer, the Veteran’s service-connected disabilities were unlikely to result in a weakened immune system. Because this opinion, though thorough, did not comply with the regulatory framework for a claim of entitlement to service connection for cause of death, an addendum outside medical opinion was rendered in August 2019. The doctor indicated that she had reviewed the available records, the appellant’s contentions, the April 2011 opinion by Dr. AKR, and the VA opinion rendered in 2012. She opined that it was less likely than not that the Veteran’s service-connected conditions contributed substantially or materially to his death, combined to cause of his death, or aided/lent assistance to the cause of his death. The doctor explained that the exact cause of neuroendocrine carcinoma was unknown, but medical science did not support a finding that the Veteran’s service-connected conditions would cause this cancer. Further, noted the doctor, the available treatment records did not note that the Veteran had a weakened immune system, and there were no reports of chronic infections that would be consistent with a weak immune system. Further, there was no diagnosis of an immune deficiency noted in the Veteran’s chart. Because 2003 X-rays of the Veteran’s femur did not document chronic osteomyelitis, so there was no evidence to support ongoing or chronic osteomyelitis as a cause of a weakened immune system. The examiner reiterated that the evidence fails to confirm that the Veteran had a weakened immune system that substantially or materially contributed to his death. The Board accords the outside medical opinions from 2016 and 2019 significant probative weight because they reflect through consideration of the Veteran’s medical history, current medical knowledge, and are supported by a thorough rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The opinions support a finding that the Veteran’s service-connected did not cause the Veteran’s cancer. Further they support a finding that the Veteran’s service-connected disorders were not principal or contributory causes of the Veteran’s death. The only evidence that purports to link the Veteran’s service-connected disabilities to his death are the appellant’s own statements. To the extent the appellant is providing an etiological opinion for the Veteran’s cancer, her statements are not competent. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). But here, the specific etiology of a rare type of cancer is clearly distinguishable from ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Regardless, the appellant’s assertions are outweighed by the competent evidence of record. Therefore, the Board denies the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to DIC benefits under 38 U.S.C. Section 1318 Under 38 U.S.C. § 1318, a surviving spouse may be entitled to dependency and indemnity compensation in the same manner as if the veteran’s death were service-connected, under certain specific conditions. VA shall pay dependency and indemnity compensation under 38 U.S.C. § 1318 to the surviving spouse of a veteran who dies not as the result of his own willful misconduct, and who at the time of death was in receipt of or “entitled to receive” compensation for a service-connected disability rated totally disabling provided, in pertinent part, that the disability was continuously rated totally disabling for a period of at least 10 consecutive years immediately preceding death. The total rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318(b)(1); 38 C.F.R. § 3.22. At the time of the Veteran’s death, he was in receipt of a TDIU, or a total disability rating. A TDIU had been in effect since August 2002. Prior to that time, the Veteran’s combined disability rating was less than total. Thus, a total disability rating was in effect from August 2002 to January 2010, or the time of the Veteran’s death, a time less than 10 years. The Board further notes that the Veteran was neither rated totally disabled for a period of not less than 5 years from the date of his discharge from active duty in 1946, nor was he a prisoner of war with a total disability rating for a period of not less than one year immediately preceding death. Thus, DIC benefits are not warranted under potentially applicable provisions. See 38 U.S.C. § 1318 (b)(2), (3). The appellant has not alleged any applicable theory of entitlement to benefits under 38 U.S.C. § 1318 to include a theory of clear and unmistakable error in a prior final rating decision, reopening of a claim based on newly received service records, or absence of receipt of total disability benefits due to non-waiver of concurrent retirement payments. See 38 C.F.R. § 3.22. Accordingly, entitlement to dependency and indemnity compensation under 38 U.S.C. § 1318 is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steve Ginski, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.