Citation Nr: 21068363 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 14-07 934 DATE: November 10, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT The preponderance of the evidence indicates that the Veteran died from community acquired pneumonia and chronic obstructive pulmonary disease (COPD) which were unrelated to service; his diabetes mellitus, type 2, lung cancer and/or heart disease did not cause or contributed substantially or materially to cause his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1955 to February 1975 to include service in the Republic of Vietnam during the Vietnam era. Unfortunately, the Veteran died in September 2011. The appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before Board in March 2018 and June 2021 and there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In October 2016, the appellant testified at a Board hearing before a Veterans Law Judge who is no longer available to participate in the adjudication of the appeal. A transcript of that hearing is of record. The appellant was sent notice in April 2021 that the Veterans Law Judge was no longer available and that she had the right to a new hearing prior to a decision. In May 2021, the appellant responded and waived her right to a hearing; thus, adjudication may proceed. The AOJ requested the appellant submit any relevant private treatment records or submit information with which VA can assist the appellant in obtaining private treatment records. The Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to service connection for the cause of the Veteran's death The appellant contends that the Veteran's COPD and/or community acquired pneumonia are due to his service, to include exposure to herbicide and/or chemical agents. The appellant also contends that the Veteran's diabetes mellitus, type 2, lung cancer and/or heart disease caused or contributed substantially or materially to his death. In order to establish service connection for the cause of a veteran's death, the evidence must show that a disease or disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). In determining whether a disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312 (c)(1). In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to chronic" diseases listed under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, a Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307. In the case of such a Veteran, service connection for certain diseases, including coronary artery disease, lung cancer, and diabetes mellitus, type 2 will be presumed if they become manifest to a degree of 10 percent or more at any time after service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309 (e). When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's personnel records show that his service included duties on the USS Ajax at a time when VA concedes that his service included service in close coastal waters for extended periods with evidence that crew members went ashore. Thus, the Veteran is presumed to have been exposed to herbicides, to include Agent Orange and such has been previously conceded by VA. The Veteran's death certificate reflects that he died in September 2011 and lists the immediate causes of death as community acquired pneumonia and chronic obstructive pulmonary disease. The medical examiner made a specific finding that there were no other significant conditions which contributed to his death. The Veteran's service treatment records are negative for any complaints, symptoms or clinical findings of COPD or pneumonia; however, they show an in-service diagnosis of and treatment for tuberculosis. The Veteran's discharge examination was normal for the lungs. The medical evidence of record shows that, in addition to having COPD and community acquired pneumonia, the Veteran had, in pertinent part, lung cancer, diabetes mellitus, type 2 and coronary artery disease. A death summary dated September 2011 was issued by Dr. M. M, of Sharp Grossmont Hospital stating that the Veteran was admitted and had hypoxemia, fever and a high white blood cell count. He was aggressively medically treated but continued to deteriorate. His oxygenation was poor. A CT scan was performed and showed evidence of chronic interstitial lung disease, as well as what appeared to be pulmonary edema. An echocardiogram showed mild congestive heart failure. Persistent watery foamy secretions from the lungs were noted. He progressively worsened and saturation dropped. Due to the critical worsening, he was taken off life support as requested by his family and died shortly thereafter. An echocardiogram showed mild congestive heart failure. In a September 2011 VA treatment record, Dr. G. M. stated that as a definitive cause of the Veteran's insidiously progressive lung pathology had not been determined, it would be difficult to definitively assess the issue of Agent Orange exposure as it pertains to the Veteran's death. He further noted that the Veteran's lung cancer has been associated with Agent Orange exposure, but this was not the predominant histologic process in the Veteran's biopsy samples. In December 2011 he agreed to write a letter regarding the Veteran's lung cancer and its relationship to his death. In a December 2011 written opinion, he stated that he strongly suspects that the inflammatory lung process that did not respond to treatment was a paraneoplastic process related to the lung cancer. The RO obtained additional VA medical opinions to address the cause(s) of the Veteran's death. In the February 2014 VA medical opinion, the examiner stated that he had reviewed the Veteran's file. He opined that the cause of the Veteran's death is community acquired pneumonia and COPD, and that they are unrelated to his service, to include in-service tuberculosis diagnosis and treatment. As rationale, the examiner noted that a September 1974 chest x-ray was normal and further, that prior to his death, the Veteran's lung testing was negative for tuberculosis. The examiner stated that the Veteran's COPD caused a rapid deterioration of lung function that is consistent with his having community acquired pneumonia. The examiner also opined that the Veteran's lung cancer was not due to his service, to include asbestos exposure, and it less likely than not contributed to his death. As rationale, the examiner stated that post radiation lung cancer treatment imaging findings were not biopsied and may have been due to progression of the lung disease, or due to other lung conditions. The examiner noted that there are many other causes of interstitial lung disease besides asbestos exposure, such as smoking. The Board notes that a May 2008 VA treatment record notes that the Veteran stated he smoked one pack of cigarettes per day for 40 years and that he did not quit smoking until 1998, approximately 13 years before his death. An October 2002 private treatment record also reflects that the Veteran stated he had smoked a pack of cigarettes a day for 40 years. An additional opinion was obtained in September 2020. The examiner stated that she spent many hours reading the Veteran's entire claims file. She also stated that he reviewed the pertinent current medical literature. The examiner noted that although the Veteran continued to be classified as having latent tuberculosis in 2008, testing was negative for active tuberculosis. The examiner stated that the in-service chest x-ray showing nonspecific findings are more consistent with an artifact, as such was not seen in later images. She also noted that post discharge studies done years later, including sputum, bronchoscopy and lung biopsies were all negative for tuberculosis. Regarding the Veteran's diabetes mellitus, type 2, the appellant's contention is that it was exacerbated by his COPD, to include an inability to regulate or manage his blood sugars due to his use of prednisone, and therefore his diabetes mellitus, type 2 contributed to his death. The September 2020 VA examiner opined that there is no evidence showing that the Veteran's diabetes mellitus, type 2 was an immediate or underlying cause of death. Regarding the Veteran's heart disease, the examiner opined that heart disease was not an immediate or underlying cause of death and as rationale, stated that the Veteran did not have a history of myocardial infarction or percutaneous cardiac interventions and that his November 2006 cardiac stress test was normal. Regarding lung cancer, the examiner stated that the Veteran had a history of early small cell lung cancer and that the cancer was asymptomatic when it was found in a July 2010 chest CT and diagnosed by biopsy. The last chest CT in June 2011 was unchanged. the examiner opined that the Veteran's lung cancer was not the immediate or underlying cause of death, as it was a very early cancer, and the Veteran was post treatment at the time of his death. The examiner reviewed and considered Dr. G. M.'s findings and opinion and noted that Dr. G. M. informed the appellant that they could not arrive at a cause of his insidiously progressive lung pathology, that it would be difficult to make a definitive assessment regarding Agent Orange exposure and that lung cancer was not the predominant histologic process in the Veteran's biopsy samples. The examiner additionally indicated that the Veteran had severe COPD for many years and that there was no evidence of COPD in-service. The Veteran died from severe-end stage COPD. He was an ex-smoker. Due to COPD, he was oxygen dependent prior to his lung cancer diagnosis in 2010. There is no evidence that his COPD was due to Agent Orange exposure or is related to film developing chemicals. A November 2020 addendum VA opinion was obtained. The examiner stated that the cause of the Veteran's death was not diabetes mellitus, type 2, lung cancer or heart disease. The examiner noted that while the Veteran was in the intensive care unit just prior to his death, he had an echocardiogram which showed mild congestive heart failure and which was treated and that it was not the cause of death, either primarily or secondarily. The examiner addressed the statement from Dr. G.M. concerning the possible insidiously progressive lung pathology as a possibly paraneoplastic process. The examiner reiterated Dr. G.M. that despite extensive pathologic review at three major academic institutions, this was not proven either histologically or biochemically. In an August 2021 VA addendum opinion, the examiner opined that is less likely than not that the Veteran's COPD was related to his service, to include exposure to herbicides and chemical agents. The Board notes that the Veteran was an in-service photographer, thus his exposure to photography film development chemicals is conceded. As rationale, the examiner stated that the primary cause of the Veteran's COPD is his decades of tobacco smoking, and that tobacco smoking accounts for as much as 90% of COPD cases. He explained that cigarette smoking releases neutrophil chemotactic factors and elastases, which lead to lung tissue destruction and that clinically significant COPD develops in 15 percent of cigarette smokers, and that is believed to be an underestimate. Age at initiation of smoking, total pack-years and current smoking status predict COPD mortality. Regarding herbicide exposure, the August 2021 VA examiner stated that herbicide exposure has not been medically or objectively linked to COPD. The examiner stated that there is a great deal of medical research regarding the connection between cigarette smoking and lung disease, thus he could not attribute the Veteran's COPD to herbicide exposure rather than to his smoking. The examiner noted that there was no evidence of in-service COPD or COPD symptoms, objective radiological findings or other evidence showing he had begun to develop or had developed COPD in-service. Regarding the Veteran's conceded exposure to film development chemicals, the examiner reviewed the articles submitted by the appellant regarding chemicals used in film development and health hazards, and concluded that the most obvious, well documented, proven cause of COPD is tobacco smoking. Regarding lung cancer, the August 2021 examiner opined that it is less likely than not that the Veteran's lung cancer or lung cancer residuals, including any possible paraneoplastic process, contributed substantially or materially to cause his death; combined to cause his death; or aided or lent assistance to the production of his death. The examiner reviewed the December 2011 medical opinion by Dr. G. M., and noted that the opinion is entirely speculative, as there is no medical or other objective evidence to support what Dr. G. M. called his "suspicion." He added that such an opinion regarding paraneoplastic process is purely speculative and attempts to create a link between lung cancer and the Veteran's cause of death through theory. The VA examiner stated that the destruction of the Veteran's lung parenchyma circulatory access from 40 years of smoking allowed for bacteria to fester and destroy whatever was left of the Veteran's lungs, causing his death. Regarding diabetes mellitus, type 2, the examiner opined that it is less likely than not that it contributed substantially or materially to cause his death; combined to cause his death; or aided or lent assistance to the production of his death. The examiner stated that he found absolutely no objective evidence that the diabetes mellitus, type 2 led to or aggravated either of these conditions causing or accelerating the Veteran's death, and that any such correlation is entirely speculative. The examiner stated that he reviewed the appellant's lay testimony, Dr. G. M.'s notes and the journal articles. He explained that the temporary elevation caused by prednisone or oral steroids could not substantially aggravate the Veteran's diabetes mellitus, type 2 and further, that any temporary elevation would have had no effect on either the COPD or the community acquired pneumonia. In view of the foregoing lay and medical evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran's COPD and community acquired pneumonia are due to his service, to include his in-service exposure to herbicide and chemical agents such as film developing chemicals. Further, the Board finds that the evidence of in-service tuberculosis and small densities of the lung are not related to the Veteran's COPD or community acquired pneumonia as his tuberculosis was latent. Further, service connection may not be established based on presumption of service connection due to in-service herbicide exposure or the manifestations of the diseases within a year of the Veteran's discharge. Rather, the competent medical evidence of record shows that it is at least as likely as not that the Veteran's cause of death from community acquired pneumonia and COPD was due to his self-reported 40 years of one pack per day tobacco smoking. For claims filed after June 9, 1998 such as this one, the law prohibits service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during active service. 38 U.S.C. § 1103, C.F.R. 3.300. Thus, entitlement to service connection is not permitted on these bases. Although service connection for diabetes mellitus, type 2, coronary artery disease and lung cancer may be established based on a presumption of service connection due to in-service herbicide exposure, the probative evidence of record is against finding that these diseases caused or contributed substantially or materially to cause of the Veteran's death. Although the December 2011 opinion from VA Dr. G. M., which is consistent with his September 2011 VA treatment notation, states that he strongly suspects that the inflammatory lung process that did not respond to treatment was a paraneoplastic process related to the Veteran's lung cancer, the conclusions are speculative. Dr. G. M. stated that lung cancer was not a predominant histologic process in the Veteran's biopsy samples and that his opinions regarding lung cancer as a contributing cause of the Veteran's death were merely suspicions, and they could not be proven histologically or biochemically. Therefore, the Board assigns the September 2011 treatment notation and the December 2011 medical opinion no probative weight. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). The appellant submitted evidence, to include lay and medical evidence and articles in support of her assertions, however, the Board affords the February 2014, September 2020, November 2020 and August 2021 VA opinions more probative weight. The VA medical examiners reviewed the Veteran's entire file, including the appellant's submissions and opined that the Veteran died from community acquired pneumonia and chronic obstructive pulmonary disease which were not related to service or any incidence of service. His diabetes mellitus, type 2, lung cancer and/or heart disease did not cause or contributed substantially or materially to cause his death. While the appellant is competent to describe observable symptoms the Veteran may have experienced, she has not demonstrated that she has the medical training or expertise necessary to determine the cause of the Veteran's death. This issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The VA opinions are supported by thorough rationales, thorough review of the Veteran's record and relevant history and review and citation of current medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). (Continued on the next page) As the evidence is not in equipoise, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for the cause of the Veteran's death is not warranted and is thus denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.