Citation Nr: 19110698 Decision Date: 02/12/19 Archive Date: 02/11/19 DOCKET NO. 11-12 559 DATE: February 12, 2019 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDING OF FACT The Veteran died in December 2008. The immediate cause of death was determined to be esophageal carcinoma. In April 2009 posttraumatic stress disorder (PTSD) was added as a significant condition which contributed to the Veteran’s death, but did not result in the underlying cause of death. 2. At the time of the Veteran’s death, service connection was in effect for PTSD, fracture of the great toe and first metatarsal with arthritis, dysentery and a fungus infection of the right foot. 3. The Veteran is not shown to be a “radiation-exposed” veteran or to have been exposed to ionizing radiation 4. The Veteran’s service-connected disabilities did not cause or materially contribute to his death and the cause of death are not otherwise related to 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, 1112, 1113,1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.31, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1940 to June 1946. He died in December 2008. The Appellant is his surviving spouse. In an April 2011 substantive appeal (VA Form 9), the Appellant requested a Board hearing before a Veterans Law Judge. In October 2012, she withdrew her hearing request. This case was previously remanded by Board in February 3013 and February 2016, for additional development, which has been completed. Entitlement to service connection for the cause of the Veteran's death The Appellant claims entitlement to service connection for the Veteran’s cause of death. 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. 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 for the cause of the Veteran’s death, the evidence must show that the disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 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 be etiologically related. For a service connected disability to constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but it must be shown that there was a causal connection. Id. Malignant (i.e., cancerous) tumors will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker at 1336; 38 C.F.R. § 3.303(b). As to disease or injury caused by radiation exposure, the Board notes that if a veteran participated in service in a radiation-risk activity (as defined by statute and regulation) and, after service, developed one of the specifically enumerated cancers, which includes cancer of the esophagus, it will be presumed that the cancer was incurred in-service. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). In this regard, the availability of presumptive service connection for a disability based on exposure to ionizing radiation does not preclude a claimant from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Similarly, if a veteran was exposed in service to ionizing radiation and, after service, developed one of the specifically enumerated cancers, which includes cancer of the esophagus, within a period specified for each by law, then the claim is referred to the Under Secretary for Benefits who must determine, based on the extent of the exposure, whether there is a reasonable possibility that the disease was incurred in service. 38 C.F.R. § 3.311. Additionally, a disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Secondary service connection may be established by a showing that a nonservice-connected disability is caused or aggravated (chronically worsened) by a service-connected disability beyond the normal progression of the disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). General Counsel Opinion 6-2003 recognizes that 38 C.F.R. § 1103 (a) and 38 C.F.R. § 3.300 (a) prohibit service connection for any condition that is attributable to a veteran’s use of tobacco during service. However, it also states that the “plain language of the statute and regulation do not bar the finding of secondary service connection for a disability related to the Veteran’s use of tobacco products after the Veteran’s service, where that disability is proximately due to a service-connected disability that is not service connected on the basis of being attributable to the Veteran’s use of tobacco products during service.” Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran served in the Navy from 1940 to 1946 as a gunner’s mate on battle ships and an aircraft carrier, and the AOJ has conceded that the Veteran had minimal to probable in-service asbestos exposure. During the Veteran’s lifetime, service connection was properly established for PTSD, fracture of the great toe and first metatarsal with arthritis, dysentery and a fungus infection of the right foot. Treatment records prior to the Veteran’s death also documented many nonservice connected conditions, including hypertension, glaucoma, degenerative disc disease with lumbar laminectomy, atherosclerotic heart disease, aortic stenosis, and a history of cerebrovascular accidents (strokes). The records showed a significant history of cigarette smoking daily for approximately 30 years, although he stopped many years prior to his death. VA treatment records show he was admitted in December 2008 until his death. The final hospital summary shows the Veteran was admitted for esophageal cancer and severe aortic stenosis. The final hospital summary noted the cause of death as secondary to end stage esophageal carcinoma. There was no indication of worsening of PTSD symptoms or that any PTSD symptoms played a role in the fatal condition, providing evidence against this claim. The Veteran’s original December 2008 death certificate listed the immediate cause of his death as esophageal carcinoma. There were no other conditions listed as contributing to the Veteran’s death and it was unknown as to whether tobacco use contributed to his death. However, an officially amended death certificate completed in April 2009 showed that PTSD was added as a significant condition which contributed to the Veteran’s death, but did not result in the underlying cause of death (esophageal carcinoma). Also, it remained unknown whether tobacco use contributed to the Veteran’s death. There was no further explanation or reasoning provided for these conclusions. The Appellant contends that the Veteran’s PTSD contributed to his death in that it caused fatal cardiac problems and/or resulted in the use of tobacco, which in turn caused his fatal esophageal cancer. In the alternative, the Appellant contends that the fatal esophageal cancer was related to potential exposure to asbestos on Naval ships and/or ionizing radiation, to include from the detonation of nuclear bombs in Hiroshima and Nagasaki. Initially, as to 38 C.F.R. § 3.309 (d), the application of this regulation is contingent on the veteran both being diagnosed with one of the specifically enumerated disease processes listed in the regulation and participating in a radiation-risk activity while on active duty. However, the record is negative for any evidence that the Veteran participated in a radiation-risk activity while on active duty. Moreover, in October 2018 the Defense Threat Reduction Agency (DTRA) summarized the Veteran’s service record, including the ship(s) and duty stations to which he was assigned during service, and concluded that historical records did not document the Veteran’s presence with the American occupation forces in Hiroshima or Nagasaki, as defined by VA. Accordingly, radiation exposure could not be conceded. Therefore, while the Veteran was diagnosed with one of the specifically enumerated disease processes listed in the regulation (i.e., esophageal cancer), because the record is negative for his having participated in a radiation-risk activity while on active duty the Board finds that this presumption does not help the claimant establish service connection for the esophageal cancer that caused his death. See 38 U.S.C. §§ 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309(d). As to direct service connection under 38 C.F.R. § 3.303, the available in-service and post-service record is negative for complaints, diagnoses, or treatment for the esophageal cancer that caused the Veteran’s death until 2007. As the evidence of record clearly reflects that the Veteran’s cancer did not manifest for many years after his separation from service, service connection is not warranted on a presumptive basis. 38 C.F.R. § 3.309(a). Furthermore, even though not service connected during the Veteran’s lifetime, there is also no indication that a cardiovascular condition manifested in service or within one year of discharge from active duty, or that it is otherwise etiologically associated with any aspect of the Veteran’s service. To the extent the Appellant contends that the Veteran’s PTSD contributed to his death or that the fatal esophageal cancer was related to exposure to asbestos, the weight of the evidence is against the claim. The evidence favoring the claim consists of the April 2011 letter from Dr. V.M.J. who opined that the Veteran’s PTSD was at least a contributing factor in the development of chronic multi-organ disorders, including his fatal esophageal carcinoma. She reasoned that the Veteran’s PTSD resulted in chronic anxiety. As a result, she believed that he used tobacco to help calm his nerves. Such tobacco use led to the development of both emphysema and esophageal carcinoma. It was noted that cigarette smoking has been directly linked to esophageal carcinoma. The evidence against the claim consists of the medical opinions of VA examiners in December 2011, January 2015, and November 2018. In December 2011, a VA clinical psychologist opined that it was not likely that the Veteran’s PTSD or treatment for the disability contributed to the cause of his death. This opinion was based on the fact there was no evidence demonstrating any direct relationship between PTSD and esophageal carcinoma. The Veteran’s medical problems that were evident two days prior to his death were esophageal cancer, severe aortic stenosis, depression, hypertension, hypothyroidism, and dementia. Also, there was no evidence that any treatment, lack of treatment, or changes in treatment caused changes in the Veteran’s biochemistry. While mental health symptoms were noted as impacting his relationships with others and his environment, there was no clear evidence that his mental health symptoms had any direct relationship with the disease that resulted in his death. The VA psychologist further explained that there was no evidence of any use of citalopram for the treatment of the Veteran’s psychiatric problems. There were no noted concerns by his providers or the attending physician regarding the impact of this medication upon his physical functioning at the end of his life. Additionally, a discharge summary dated in December 2008 did not indicate a progression of a disease that could be attributable to a chronic state of heightened norepinephrine levels. Rather, it was noted that the Veteran was asymptomatic for quite some time prior to the worsening of his esophageal cancer. He had survived over 1.5 years with esophageal cancer, and only over the last several months of his life had there been a dramatic decline in functional status. Such evidence indicated that an acute, rather than a chronic, condition contributed to his death, providing more evidence against this claim. In January 2015, a VA examiner, following a review of the claims file, opined that it was less likely than not that the Veteran’s fatal esophageal cancer had its onset in the service, or had its onset in the year immediately following any period of service, and it was also less likely than not related to asbestos exposure in service. The examiner based the opinion on the fact that the Veteran’s history was significant for smoking cigarettes for over 30 years, which was a known risk factor for esophageal cancer. In this regard, while exposure to asbestos could cause lung cancer, specifically, mesothelioma, it did not cause esophageal carcinoma. Significantly, the Veteran did not have a diagnosis of asbestosis. The examiner also opined the Veteran’s service-connected PTSD less likely than not contributed significantly or materially to cause this Veteran’s death or hastened his death or rendered him less capable of resisting the condition that that caused his death. The examiner also found that PTSD did not cause the Veteran to use, or increase his use of, tobacco products. In support of this finding, the examiner noted that not all individuals with PTSD used tobacco. Moreover, a review of the evidence since 2001 suggested that the Veteran’s PTSD was not productive of significant impairment as treatment was generally declined. Concerning the Veteran’s cardiac disabilities, the examiner opined that the conditions were not related to service, to include asbestos exposure, nor was cardiac disability caused or aggravated by the service-connected PTSD. In any event, the examiner concluded that the Veteran’s diagnosed cardiac disabilities less likely than not contributed significantly or materially to cause the Veteran’s death because cardiac problems were not a known cause of esophageal cancer. Rather, risk factor for esophageal cancer included alcohol, obesity, GERD, smoking etc. Thereafter, a VA mental health examiner in November 2018, following a review of medical records, determined that there was no documented causal connection between the Veteran’s tobacco use and his service connected PTSD. In addition, whereas research showed a correlation between PTSD and comorbid substance use disorders, PTSD was not a recognized cause of tobacco use in the medical literature. Therefore, based on the evidence of record, it was less likely than not that the Veteran’s service connected PTSD caused him to use, or increase the use of, tobacco products or otherwise contributed significantly or materially to cause his death by esophageal carcinoma. The VA examiner also opined that it was more likely than not that the Veteran’s diagnosed cardiac disabilities contributed significantly or materially to the Veteran’s death. However, he went on to find that it was less likely than not that the Veteran’s cardiac disability had its onset in service, was related to asbestos exposure in service, or was otherwise caused by a disease or injury in service. The examiner noted that the Veteran’s aortic valve was reported as normal in a November 1989 echocardiogram, thus ruling out onset in service. The examiner further opined that it was less likely than not that the Veteran’s cardiac disability was caused (in whole or part) or chronically worsened beyond its natural progression by his service-connected PTSD. He explained that, within the available medical records, the Veteran’s treating physicians did not indicate that PTSD had a contributory role to his aortic stenosis. The examiner added that in Western countries aortic stenosis was primarily caused by two main processes; one being a congenital abnormal aortic valve, which was not shown by the Veteran’s echocardiograms, and the other was degenerative calcification. PTSD and asbestos exposure were not known to cause the process of degenerative calcification leading to aortic stenosis. To the extent that in April 2011 Dr. V.M.J. reported that stressful situations could bring on congestive heart failure, the examiner disagreed with that statement noting that it was not supported by a rationale. Importantly, Dr. V.M.J. was not involved in the Veteran’s care for the final two years of his life, after he was diagnosed and treated for the fatal esophageal cancer. Finally, the VA medical examiner opined that it was less likely than not that the Veteran’s fatal esophageal cancer had its onset in service, had its onset in the year immediately following any period of service, was caused by in-service asbestos exposure, or was otherwise caused by a disease or injury in service. The examiner based the opinion on the fact that the Veteran’s esophageal cancer had its onset in 2007, and asbestos exposure was not a known risk factor for esophageal cancer. The Board finds the VA medical examiners’ opinions are both well-reasoned and thorough, having considered the entire record, including the Veteran’s medical history, and provide specific medical evidence for the opinions rendered. The VA medical opinions warrant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board can not disregard such evidence. In contrast, Dr. V.M.J.’s medical opinion was conclusory without medical rationale or support, that would allow the Board to assess the probative value of Dr. V.M.J.’s opinion. As such, the Board gives little probative value to Dr. V.M.J.’s statement. To the extent that the Appellant submitted medical articles supportive of her contentions, the Board notes that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discusses 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. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998). The medical articles submitted by the Appellant in this case were not accompanied by the opinion of any medical expert linking his fatal esophageal cancer to active service, to include asbestos exposure, or to a service-connected disability. Thus, the articles submitted by the Appellant are insufficient to establish the medical nexus opinion required for causation. Although the Court and Federal Circuit have addressed the circumstances where lay evidence can/must be considered, both judicial bodies have also addressed where the Board may make findings that the lay statements are beyond the competence of the giver, or that the statements are not credible or the giver of the lay evidence is mistaken. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). As in this case, the Appellant is not competent to state that the Veteran’s esophageal cancer was caused by exposure to asbestos, ionizing radiation or PTSD. She has not demonstrated that she has medical training or experience sufficient to render her opinions competent. The clear evidence is against this claim, clearly indicating the cause of the issue. In view of this information, there is no reasonable possibility that any additional assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A (a); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); see also DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Thus, the preponderance of the evidence is against the claim as the evidence does not show that the Veteran’s service-connected disability caused or materially contributed to his death or that the causes are otherwise related to service. As such, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 3.102. Accordingly, service connection for the cause of the Veteran’s death is not warranted. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Azizi, Counsel