Citation Nr: 20053293 Decision Date: 08/11/20 Archive Date: 08/11/20 DOCKET NO. 16-35 214A DATE: August 11, 2020 ORDER Service connection for cancer due to asbestos exposure, for accrued benefits purposes, is denied. Service connection for a psychiatric disorder as secondary to cancer, for accrued benefits purposes, is denied. Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in August 2013; the death certificate listed metastatic adenocarcinoma unknown primary as the cause of death. The death certificate did not note any other conditions contributing to the Veteran’s death. 2. The evidence of record demonstrates that the Veteran’s cancer was not caused by exposure to asbestos, was not present during active service, and did not manifest within one year from the date of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. § 3.312 (2019). 2. The criteria for service connection for cancer due to asbestos exposure, for accrued benefits purposes, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 3. The criteria for service connection for a psychiatric disorder, for accrued benefits purposes, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to October 1970. He died in April 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2020. In December 2019 the appellant before the undersigned Veterans Law Judge and delivered sworn testimony via video conference hearing in Philadelphia, Pennsylvania. Duties to Notify and Assist Neither the appellant nor her attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record an address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The appellant offered testimony before the undersigned Veterans Law Judge at a Board hearing in December 2019. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2019); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior January 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection for cancer and a psychiatric disorder 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) (2017). 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, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, 7 Vet. App. 439. First, the Board finds that there was a diagnosis of current disability during the Veteran’s lifetime. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). VA records beginning in September 2012 reveal diagnosis and treatment for cancer, and the first element of service connection is met. Second, the Board finds that there was an in-service injury, in that the Veteran was exposed to asbestos during service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Service treatment records (STRs) are negative for complaints or findings related to any malignant tumors, asbestos disability, or any other relevant complaints, findings, or diagnoses. The Veteran’s military occupational specialty was machinist’s mate – which is probable for asbestos exposure. Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record does not support a finding that the Veteran’s cancer was related to the Veteran’s exposure to asbestos during active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The competent evidence of record does not link the Veteran’s cancer to asbestos exposure or otherwise to service. In December 2013 a VA physician (DR) specifically indicated that the Veteran’s type of cancer, adenocarcinoma of unknown primary or of colon origin, was not known to be related to asbestos exposure. The Board notes that DR reviewed the relevant medical records and provided a thorough supporting explanation, including a reference to pertinent medical literature. Accordingly, the Board assigns this etiological opinion significant probative value. See 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). Thus, the most probative evidence of record indicates that the cancer is not related to active service. To the extent that the appellant is providing an opinion linking the Veteran’s cancer to his active service, the Board finds that these statements are not competent. The appellant is competent to report symptoms and provide diagnoses that are capable of lay observation, but is not competent to establish that which would require specialized knowledge or training, such as medical expertise; whether asbestos exposure is the cause of an internal condition such as cancer is not capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The record does not show, nor does the appellant contend, that she has specialized education, training, or experience that would qualify her to render a diagnosis or render a medical opinion on this matter. The Board finds that the claim of service connection for depression is denied. Although there is a current diagnosis, the claim is based on being secondary to the cancer. As service connection for cancer has been denied, service connection for depression on a secondary basis is not warranted. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   Service connection for the cause of the Veteran’s death To establish service connection for the cause of the veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 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 thereto. For a service-connected disability to constitute a contributory cause, 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. Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). 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). Service treatment records (STRs) are negative for complaints or findings related to any malignant tumors, asbestos disability, or any other relevant complaints, findings, or diagnoses. The Veteran was diagnosed with metastatic adenocarcinoma (unknown primary) in September 2012. The Veteran died in August 2013 and the death certificate listed metastatic adenocarcinoma unknown primary as the cause of death. The death certificate did not note any other conditions contributing to the Veteran’s death. The Veteran had no service-connected disabilities during his lifetime, and service connection for the Veteran’s cancer, the cause of his death, has been denied. As such, service connection for the cause of the Veteran’s death is not warranted. The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.