Citation Nr: 19104771 Decision Date: 01/22/19 Archive Date: 01/18/19 DOCKET NO. 15-07 111 DATE: January 22, 2019 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in July 2011; the death certificate lists the immediate cause of death as esophageal cancer. 2. The Veteran’s death is not related to his military service or to a service-connected disability. 3. The Veteran was not in receipt of a total service-connected disability rating for 10 years at the time of his death, his death occurred more than 65 years after his separation from active duty service, and he was not a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.312. 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from October 1942 to April 1945. The appellant is the Veteran’s surviving spouse. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the January 2015 VA Form 9, Substantive Appeal, the appellant requested a hearing before the Board at the RO, but in January 2017, the appellant asked VA to continue the appeal without holding a hearing. The hearing request is thus considered withdrawn. In December 2017, in accordance with 38 U.S.C. § 7109 and 38 C.F.R. § 20.901, the Board requested a medical expert opinion from the Veterans Health Administration (VHA). A VHA medical opinion was rendered in January 2018. The VHA medical expert provided two addendum opinions. The appellant and her representative were provided a copy of the opinions and afforded the opportunity to submit additional evidence and argument. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Service connection for the cause of the Veteran’s death is denied. The appellant and her representative contend the Veteran’s esophageal cancer and resulting death was related to his acid reflux disease brought on by his service-connected psychoneurosis and long-term use of nonsteroidal anti-inflammatory drugs (NSAIDs) and other medications for his service-connected disabilities. Alternatively, they contend that the Veteran’s exposure to asbestos caused or contributed to his esophageal cancer and death. To establish service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either the principal or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; 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 U.S.C. § 1310; 38 C.F.R. § 3.312. To be a contributory cause of death, it must be shown that there were “debilitating effects” due to a service-connected disability that made the Veteran “materially less capable” of resisting the effects of the fatal disease or that a service-connected disability had “material influence in accelerating death,” thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). Therefore, service connection for the cause of a Veteran’s death may be demonstrated by showing that the Veteran’s death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to direct service connection requires evidence of three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). The Veteran’s death certificate reflects that he died in July 2011 as a result of esophageal cancer. At the time of the Veteran’s death, he was service-connected for left knee total arthroplasty evaluated as 60 percent disabling, internal derangement of the right knee evaluated as 30 percent disabling, traumatic arthritis of the right knee evaluated at 10 percent disabling, and psychoneurosis evaluated as noncompensable. The Board will first address the appellant’s contention that the Veteran’s service-connected psychoneurosis and long-term use of nonsteroidal anti-inflammatory drugs (NSAIDs) and other medications for his service-connected disabilities caused acid reflux disease that caused or contributed to the Veteran’s esophageal cancer and death. The Board obtained a VHA medical opinion in January 2018 as to whether the Veteran’s NSAID use for the Veteran’s service-connected knee disabilities caused or aggravated the Veteran’s acid reflux or gastroesophageal reflux disease (GERD), and if so, whether the Veteran’s acid reflux or GERD caused or contributed to the Veteran’s death. Further, the Board requested an opinion as to whether the Veteran’s service-connected psychoneurosis, to include medications taken for the condition caused or aggravated the Veteran’s GERD, and if so, whether the Veteran’s GERD caused or contributed to the Veteran’s death. The VHA medical expert opined that it is not as likely as not that NSAID use related to the Veteran’s service-connected knee disabilities cause or aggravated his GERD. In support of the opinion, the VHA medical expert reasoned that causes of acid reflux in adults are generally multifactorial, including demographic factors, hiatal hernia, weight, motility, and substance use. The VHA medical expert noted that there have been studies suggesting an increase in esophageal reflux with those taking NSAIDs, but the odds ratio for NSAID use was much less than the other risk factors such as age, race, gender, and presence of hiatal hernia. He then concluded that “considering the odds ratios it is difficult to state with certainty that NSAID use would be over 50 percent of the cause or aggravation of the esophageal reflux.” Due to the VHA medical expert’s conclusion that “it is difficult to state with certainty that NSAID use would be over 50 percent of the cause or aggravation of the esophageal reflux,” the Board requested clarification. Following the clarification request, the VHA medical expert stated in an addendum opinion that it is at least as likely as not that NSAID use caused or aggravated the Veteran’s esophageal reflux. Given the positive response to the question of whether the Veteran’s NSAID use caused or aggravated the Veteran’s esophageal reflux, the VHA medical expert was then requested to provide an opinion as to whether the Veteran’s acid reflux caused or contributed to the Veteran’s death. In response to that question, the VHA medical expert opined that it is not felt that it was as likely as not that the Veteran’s acid reflux or GERD caused or “aggravated” the Veteran’s death. The VA examiner reasoned that acid reflux and GERD are clearly associated with esophageal adenocarcinoma, but the Veteran did not have histological documentation of esophageal adenocarcinoma. Following the initial addendum opinion, the Board requested further clarification in September 2018 from the VHA medical expert because the VA standard in a cause of death case is “caused or contributed” and not “caused or aggravated,” which is the language the VHA medical expert used. Further, the Board requested clarification as to the VHA medical expert’s statement that “acid reflux and [GERD] are clearly associated with esophageal adenocarcinoma.” The Board noted that the VHA medical expert stated in the initial January 2018 opinion that the biopsy shows the Veteran had poorly differentiated esophageal carcinoma, but the clarification opinion does not clearly address whether acid reflux or GERD are associated with poorly differentiated esophageal carcinoma. Therefore, the Board requested the VHA medical expert to provide a second addendum opinion as to whether acid reflux and GERD are associated with poorly differentiated esophageal carcinoma. The VHA medical expert then provided a second addendum opinion in which he stated that it is not at least as likely as not that the Veteran’s acid reflux or GERD caused or contributed to the Veteran’s death. In support of the opinion, the VHA medical expert stated that poorly differentiated esophageal carcinomas are exceedingly rare tumors, and that unlike adenocarcinoma, epidemiological studies have not proven an association between acid reflux and poorly differentiated carcinoma. Regarding whether the Veteran’s service-connected psychoneurosis, to include medications taken for the condition, caused or aggravated the Veteran’s GERD, the VHA medical expert opined in January 2018 that it is not as likely as not. In support of the opinion, the VHA medical expert noted that studies show psychological comorbidity has been associated with esophageal reflux symptoms; however, a study of risk factors for esophageal reflux symptoms documented psychosomatic factors having a lower odds ratio than other risk factors for esophageal reflux. The Board places great probative weight on the VHA medical expert’s opinions as they consider the Veteran’s medical history, consider the pertinent medical literature, and provide detailed explanations with clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds it persuasive of a conclusion that the Veteran’s service-connected psychoneurosis and long-term use of NSAIDs and other medications for his service-connected disabilities did not caused or contribute to the Veteran’s esophageal cancer and death. Now, turning to the appellant’s contention that the Veteran’s in-service exposure to asbestos caused his esophageal cancer which resulted in his death. When analyzing a claim for service connection for an asbestos related disability, as is the case here, the United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the appellant’s claim under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). There is no specific statutory guidance with regard to asbestos-related claims, nor has the VA Secretary promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as 7.21 of VBA’s Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1, as cited below.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). Although VA manuals like the M21-1 may not in all cases be binding on an agency, Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017), the Board is not free to simply ignore the Secretary’s guidance on an issue. See 38 C.F.R. § 19.5 (“In the consideration of appeals, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs.”). However, the U.S. Court of Appeals for Veterans Claims (Court) has held that “the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision.” Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). The Court added that the Board is required to provide a reasoned explanation for why it finds the M21-1 an accurate guideline for its decision. Id. The Board finds that the M21-1 provisions regarding asbestos exposure provide an accurate guideline for assisting the Board in adjudicating this appeal. In this regard, the Board notes that the history of VA looking at asbestos and the effects of exposure to it is long. The Court has looked at the asbestos issue, to include VA’s manual and circular, going back over 20 years. In Dyment v. West, 13 Vet. App. 141, 146-47 (1999), the Court found that neither the M21-1 nor the circular created a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the probability of exposure to asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Id. Additionally, the Board notes that VA likely developed these guidelines to inform adjudicators by consulting experts in the appropriate field(s) and with other Departments, such as the Department of Defense. In light of the foregoing factors, the Board will utilize the M21-1 as a factor – an accurate guideline – in adjudicating this appeal along with the applicable laws, regulations, caselaw, and opinions from VA’s Office of General Counsel. The M21-1 indicates that the adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1, Part IV, Subpart ii, Chapter 2, § C.2.h. The appellant contends the Veteran’s in-service exposure to asbestos caused or contributed to the Veteran’s death. The Veteran died in July 2011 of esophageal cancer. The RO has conceded in-service exposure to asbestos as the Veteran’s DD Form 214 reflects that his military occupational specialty was a machinist’s mate. The M21-1 Manual provides that a military occupational specialty of machinist’s mate had probable exposure to asbestos. M21-1, Part IV, Subpart ii, Chapter 1, § I.3.d. The Board finds that a preponderance of the evidence is against a finding that the Veteran’s death from esophageal cancer was etiologically related to his in-service asbestos exposure. Per VA policy, medical-nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGC Prec. No. 04-00 (Apr. 13, 2000). In December 2014 a VA medical expert opined that the Veteran’s esophageal cancer was less likely as not due to or a result of his in-service asbestos exposure. In support of the opinion, the VA examiner stated that there are multiple confirmed risk factors for cancer of the esophagus, including genetic factors, GERD, Barrett’s esophagus, drinking hot liquids, various dietary factors, and alcohol and tobacco use. The VA medical expert noted that asbestos exposure is a possible risk factor. In addition, the VA medical expert stated that the Veteran had no evidence in the record of other asbestos related conditions. The VA medical expert then concluded that the Veteran’s cancer was most likely caused by a combination of other risk factors rather than asbestos exposure. Since the above opinion is speculative for the conclusion reached that the Veteran’s asbestos exposure did not cause his esophageal cancer, the Board obtained a VHA medical opinion in January 2018. The VHA medical expert opined that it is not as likely as not that the Veteran’s in-service asbestos exposure caused or contributed to his esophageal cancer. The VHA medical expert reasoned that the Veteran had biopsy documentation of poorly differentiated esophageal carcinoma. He noted the three major categories of esophageal cancer are squamous cell carcinoma, adenocarcinoma, and poorly differentiated carcinoma. The VHA medical expert noted that the Institute of Medicine could not establish a causal relationship between asbestos and esophageal cancer. Further, he noted that the recent medical literature shows an association with prolonged duration of high levels of asbestos occupational exposure and esophageal adenocarcinoma; however, the Veteran’s biopsies documented poorly differentiated esophageal carcinoma and not esophageal adenocarcinoma. The Board places great weight of probative value on the VHA medical expert’s opinion because it considers the Veteran’s specific medical history, including the specific type of esophageal cancer, considers pertinent medical literature, and provides a detailed explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. Therefore, the Board finds it persuasive of a conclusion that the Veteran’s in-service asbestos exposure did not cause the esophageal cancer that led to the Veteran’s death. The Board recognizes the appellant’s sincere belief that the Veteran’s esophageal cancer was due to his exposure to asbestos in service or due to medications taken for his service-connected disabilities; however, the appellant is not competent to opine on these matters. These issues are medically complex, as they require knowledge of intricate medical matters, including knowledge of medical literature. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In summary, the claim of service connection the Veteran’s cause of death is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App., 49, 53-56 (1990).   2. DIC under 38 U.S.C. § 1318 is denied A surviving spouse may establish entitlement to DIC in the same manner as if the Veteran’s death were service connected where it is shown that the Veteran’s death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). In this case, a December 2005 rating decision reflects the Veteran was service-connected for left knee total arthroplasty evaluated as 60 percent disabling, internal derangement of the right knee evaluated as 30 percent disabling, traumatic arthritis of the right knee evaluated at 10 percent disabling, and psychoneurosis evaluated as noncompensable. A March 2006 rating decision awarded entitlement to a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU) effective August 15, 2005. He was therefore not in receipt of a total disability during the 10 years preceding his death in July 2011. Furthermore, the Veteran died more than 10 years after his separation from service and was not a former POW.   Therefore, there is no legal basis for entitlement to DIC under 38 U.S.C. § 1318, and the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel