Citation Nr: 21001132 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 10-04 559 DATE: January 7, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) for purposes of accrued benefits is denied. REMANDED Entitlement to nonservice connected pension benefits for the purposes of accrued benefits is remanded. FINDINGS OF FACT 1. The Veteran died in July 2006 due to colon cancer which had metastasized to the lungs and liver. 2. At the time of his death in July 2006, the Veteran was service-connected for PTSD, residuals of a rib fracture, and residuals of left leg fracture. 3. Colon cancer did not have onset during active service and is not otherwise related to active service, including any exposure to mustard gas, and diagnosed lung cancer was not the primary site diagnosis. 4. The severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran’s death due to colon cancer or a service connected disability is not warranted. 38 U.S.C. § 1310 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312, 3.316 (2019). 2. The criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1944 to March 1946. He died in July 2006. The appellant in this case is the Veteran’s surviving spouse. This appeal came to the Board of Veterans’ Appeals (Board) on appeal from a December 2006 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In that determination, the RO denied the matters on appeal. The appellant timely appealed this determination to the Board. Jurisdiction of the appeal currently resides with the Muskogee, Oklahoma RO. The Board notes substitution is not permissible in this case because the Veteran died prior to October 10, 2008. 38 U.S.C. § 5121A (West 2014). In December 2012, the appellant and her granddaughter testified before the undersigned Veterans Law Judge at a Board videoconference hearing. In March 2013,October 2015, and more recently in October 2017 the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for additional development. 1. Entitlement to service connection for the cause of the Veteran's 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, 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, including cancer, 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). The appellant contends that the Veteran died from lung cancer that was separate from his fatal colon cancer and was incurred in service as a result of his exposure to mustard gas at Camp Swift, Texas from February to September 1944 while assigned to the 102nd Field Artillery Ozark Division. According to the Veteran’s Certificate of Death the immediate cause of his death was end stage colon cancer. Additionally, the medical evidence currently of record, including VA clinical records, dated from July 2000 to July 2006, as well as a July 2005 letter from the Veteran’s home hospice provider, indicates that the Veteran had primary colon cancer with lung metastasis. The law provides for presumptive connection where the record establishes full-body exposure to nitrogen or sulfur mustard during active service together with the subsequent development of lung cancer. 38 C.F.R. § 3.316. Presumptive service connection may not be established for a cancer listed in 38 C.F.R. § 3.316 as being associated with mustard gas exposure, such as lung cancer, if that cancer developed as the result of metastasis of a cancer that is not associated with mustard gas exposure, such as colon cancer. VAOPGCPREC 18-97, 62 Fed. Reg. 37954 (1997); Darby v. Brown, 10 Vet. App. 243 (1997). However, even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to mustard gas exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the question that remains is whether the Veteran’s fatal colon cancer is etiologically related to an incident during military service or had its onset therein, to include his claimed mustard gas exposure at Camp Swift, Texas. After reviewing the evidence, the Board finds that, while the Veteran was diagnosed with colon cancer which unfortunately lead to his passing, the preponderance of the evidence is against finding that the disability was incurred in service, to include due to in-service exposure to mustard gas. As such, entitlement to service connection for cause of death due to colon cancer is denied. Initially, the Board finds that the preponderance of the evidence is against presumptive service connection for a disease claimed secondary to mustard gas exposure. While the Veteran did have a diagnosis of lung cancer (which has been found to be presumptively related to full body mustard gas exposure), the evidence of record shows that the Veteran’s lungs were not the primary site of the diagnosis of cancer, as the August 2019 VA examiner concluded that colon cancer metastasized to the lungs and liver. The VA examiner further determined that the Veteran’s lung cancer was not separate from the colon cancer diagnosis. As the evidence shows that the Veteran’s lung cancer was caused by metastasis of the colon cancer, and colon cancer has not been determined to be presumptive associated with mustard gas exposure, presumptive service connection for the cause of death of the Veteran must be denied. As noted above, while lung cancer is a presumptive condition that has been associated with mustard gas exposure, the evidence shows that the lung cancer was not the primary site of the cancer diagnosis, and the cancer originated from the Veteran’s colon. Therefore, the presumptive criteria under 38 C.F.R. § 3.316 is not applicable. Thus, presumptive service connection for colon cancer based on the Veteran’s claimed exposure to mustard gas is not warranted. Despite these above findings with regard to presumptions associated with mustard gas exposure and exposure, the claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board finds that the preponderance of the competent evidence of record shows that the Veteran’s colon cancer was not related to service to include exposure to mustard gas. In this regard the Board notes that the Veteran’s service treatment records are silent for complaints, findings, or diagnoses related to the colon or colon cancer. Post-service VA treatment records also reveal that the Veteran was first diagnosed with colon cancer 2002, which was noted to have metastasized to his liver and lungs. The Board notes that this diagnosis was more than 50 years after separation from service which also weighs against the claim. Additionally, neither Veteran nor the appellant have contended that colon cancer onset during service or was diagnosed within one year after separation from service. Indeed, the Veteran and appellants sole contention is that the Veteran’s conceded exposure to mustard gas caused the development of colon cancer and lung cancer. The Board notes that during the December 2012 Board hearing, the appellant testified that VA physicians told her and the Veteran’s lung cancer spread to his colon, and it was not the other way around. The Veteran’s claims file was forwarded to a VA examiner in August 2019 to determine if the diagnosed colon cancer was etiologically related to the mustard gas exposure. The examiner reviewed the claims file and opined that it was less likely than not that the diagnosed colon cancer was caused by the full body exposure to mustard gas. The examiner remarked the Veteran’s lung cancer developed as the result of the colon cancer, which metastasized to lung. The examiner noted that there was no characteristics of the colon cancer the Veteran had that made mustard gas a likely etiologic factor in the development of the cancer. The Board has considered the Veteran’s and appellant assertions that colon cancer was caused by in-service mustard gas exposure. However, the Board finds the Veteran’s and appellant’s assertions are not competent evidence. The Veteran and appellant have provided no indication that they haves expertise in determining the cause of colon cancer. They are thus a non-expert, or layperson. Although it is improper to categorically exclude layperson nexus opinion evidence, not all layperson nexus opinion evidence is competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (“whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board”); Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (applying Jandreau specifically to lay nexus opinion evidence). As previously noted, it is not shown that the Veteran or appellant are otherwise qualified through specialized education, training or experience to offer a medical opinion as to the etiology of his colon cancer, and therefore the assertions that colon cancer was caused by exposure to mustard gas in service is not competent evidence. Additionally, while the appellant reported that VA physicians explained to her that the Veteran’s cancer onset in the lung and spread to the rest of his organ, the evidence of record contradicts her recollections. Here, VA treatment records and the VA examination report show that the Veteran’s cancer onset in his colon and metastasized to his liver and lungs. Therefore, the appellant’s testimony is outweighed by the medical evidence of record. The Board concludes that the evidence does not establish that the Veteran had colon cancer, during active service or within one year of separation from active service, or that colon cancer otherwise related to active service. Accordingly, the Veteran’s colon cancer, was not incurred in or caused by service, nor may it be presumed to have so been incurred. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a colon cancer, and the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 30 percent for PTSD for purposes of accrued benefits The appellant and Veteran prior to his death, asserted that a rating in excess of 30 percent for PTSD is warranted. The Board notes that during the December 2012 Board hearing, the appellant and her granddaughter testified regarding the Veteran’s PTSD symptoms which consisted of sleeping difficulties, nightmares, and avoidance of talking about his military experience. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, the Veteran's current 30 percent evaluation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and/or mild memory loss (such as forgetting names, directions, or recent events). A 50 percent rating is warranting for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted for a mental disorder when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms; the length of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). "[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. An October 2002 VA treatment record shows that the Veteran was prescribed Zoloft for depression. A review of VA treatment records dated November 2004 and November 2003 showed that the Veteran showed negative indications for depression according to a depression screening evaluation. A July 2005 private treatment letter shows that the Veteran was receiving hospice care since November 2004. The private physician noted that the Veteran had diagnosed depression and significant anxiety which required the prescription medications of Zoloft and Ativan. An October 2005 VA PTSD examination report shows that the Veteran reported frequent intrusive memories, recollections, and thoughts in the form of nightmares regarding World War II. He also reported a sleep problem and had trouble falling asleep if he woke up during the night. The Veteran reported symptoms of avoidance as he did not like to talk about what happened in Germany during World War II. The examiner noted that the Veteran was not under any active treatment for PTSD currently. The examiner reported that the Veteran was verbal, maintained good eye contact, and answered questions appropriately. He was noted to be friendly and cooperative, but affect was depressed and constricted. Mood was also noted to be anxious and depressed. The Veteran denied suicidal thoughts, homicidal thoughts, delusions, hallucinations, or any other psychotic symptomatology. The Veteran was alert and oriented to time, place, person, and space. Good fundamentals of knowledge were noted and judgement was okay, however, insight into the PTSD problem was very limited. Memory was noted to be intact. No impairment of thought processes were noted. Normal activities of daily living was assessed. After a review of the evidence of record, the Board finds that a disability rating in excess of 30 percent is not warranted for the Veteran's PTSD at any time during the appeal. For this time period, the Veteran did not demonstrate the type and degree of symptoms, such as flattened affect, difficulty in understanding complex commands, impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks), impaired judgment, or impaired abstract thinking, that lead to occupational and social impairment with reduced reliability and productivity. There is also no evidence of panic attacks. While the Veteran was assessed with depressed mood, anxiety, and a sleeping impairment, these symptoms were not to the specific type and degree to warrant a higher rating as occupational and social impairment was not affected to the degree required for at the next higher rating. Specifically, as noted in the October 2005 VA examination showed that the Veteran was not under care for his PTSD, and displayed only limited symptoms of PTSD noted as sleeping difficulties, avoidance behavior, and a mood that was depressed and anxious. The presence or absence of certain symptoms is not necessarily determinative. Those symptoms must ultimately result in the level of occupational and social impairment in the referenced areas. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Here, however, the VA examination report and VA treatment records are not indicative of occupational and social impairment with reduced reliability and productivity that approximate the criteria for 50 percent. The findings of the October 2005 VA examiner assessed the Veteran as having no suicidal thoughts, homicidal thoughts, delusions, hallucinations, psychotic symptomatology. His memory was noted to be intact with normal thought processes and conducting normal activities of daily living. Additionally, while the Board notes that the Veteran was under significant stress during his cancer diagnosis, the Veteran’s spouse did not report during the Board hearing any symptoms she overserved that would meet the criteria for social and occupational impairment for the next higher rating of 50 percent. Accordingly, in this case, the Board finds that the existence and severity of the Veteran's psychiatric symptoms are adequately contemplated by the relevant rating criteria. Many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that, while not specifically listed, are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. The Veteran's symptoms as described above are consistent with the currently-assigned 30 percent disability rating and do not meet the criteria for the next higher rating of 50 percent. Thus, rating in excess of 30 percent for PTSD is denied. REASONS FOR REMAND 1. Entitlement to nonservice connected pensions benefits for the purposes of accrued benefits is remanded. With respect to the claim for nonservice-connected pension benefits, further development is necessary. Basic entitlement to nonservice-connected pension benefits exists if (i) the Veteran served in the active military, naval or air service for 90 days or more during a period of war; (ii) is permanently and totally disabled from nonservice-connected disability not due to his or her own willful misconduct; and (iii) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the Maximum Annual Pension Rate (MAPR), as specified in 38 C.F.R. § 3.23. See 38 U.S.C. §§ 1502, 1521(j); 38 C.F.R. § 3.3(a). Prior to his death, the Veteran contended that he was entitled to nonservice-connected pension benefits. It is undisputed that the Veteran had the requisite qualifying wartime service and was over the age of 65 years at the time of his claim. However, basic entitlement to nonservice-connected pension benefits exists only if the Veteran’s countable income is not in excess of the maximum annual pension rate specified by law. By way of history the Veteran filed a claim for nonservice connected pension in April 2005. In June 2005, the Veteran was sent correspondence from the RO requesting additional information to support his claim for nonservice connected pension benefits. The RO requested that the Veteran completed a VA Form 21-0510, Eligibility Verification Report; VA Form 21-0516-1, Improved Pension Eligibility Verification Report; and VA Form 21-8416, Medical Expense Report showing the Veteran’s and his family’s income, net worth, and unreimbursed medical expenses for the periods April 20, 2004 to April 2005, and May 1, 2005 to May 31, 2006. The RO also provided the Veteran with VCAA notice regarding what the evidence must show in order his claim for nonservice connected pensions benefits to awarded. In July 2005, the Veteran submitted a partially completed VA Form 21-0516-1 Improved Pension Eligibility Verification Report. Unfortunately, as noted above the Veteran passed away in July 2006. A November 2009 Statement of the Case (SOC) noted the Veteran’s claim for a nonservice connected pension shows that prior to the Veteran’s death, however, the RO noted that the Veteran did not provide income and medical expense information required to determine if a nonservice connected pension would be warranted. Therefore, the claim could not be granted as the Veteran did not provide the requested documentation. After a review of the evidence of record the Board finds that the RO has not provided the appellant with appropriate notice of documentation required to pursue the claim. While it is clear the Veteran’s received this notice prior to his death, there is no indication that the appellant was provided notice of the required financial and medical expense forms. The matters are REMANDED for the following action: 1. The RO should take appropriate steps to contact the appellant in order to request that she provide the requisite documentation to support the claim for pension benefits. These documents should include VA Form 21-0510, Eligibility Verification Report; VA Form 21-0516-1, Improved Pension Eligibility Verification Report; and VA Form 21-8416, Medical Expense Report showing the Veteran’s and his family’s income, net worth, and unreimbursed medical expenses for the periods April 20, 2004 to April 2005, and May 1, 2005 to May 31, 2006. 2. Ensure compliance with the directives of this remand. If the report is deficient in any manner the RO must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.