Citation Nr: 21072676 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 15-40 163 DATE: December 6, 2021 ORDER Dependency and Indemnity Compensation (DIC) for service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in January 2012. 2. The primary cause of death was acute exacerbation of chronic bronchitis due to pulmonary fibrosis and chronic pulmonary obstructive disease (COPD) (lung disorders). 3. Prior to the Veteran's death, service connection was established for bilateral tinnitus, bilateral hearing loss, left testicular non-Hodgkins' lymphoma, and erectile dysfunction. 4. The cause of the Veteran's death (bronchitis, pulmonary fibrosis, and COPD) was not incurred in service and is not etiologically related to service. 5. The service-connected disabilities did not cause or contribute substantially or materially to the Veteran's death, did not combine to cause death, and did not aid or lend assistance to the production of death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1112, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1970 to June 1973. The Veteran died in January 2012. The appellant is the surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision from the Regional Office (RO), which denied service connection for the cause of the Veteran's death. This matter was previously before the Board in March 2019, at which time the Board denied service connection for the cause of the Veteran's death. In April 2021, the Board vacated the March 2019 Board Decision to afford the appellant a Board hearing. In June 2021, the appellant testified at a Board virtual hearing before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. During the June 2021 Board hearing, the representative asserted clear and unmistakable error (CUE) in a prior rating decision that addressed service connection for a lung disorder during the Veteran's lifetime. Because the theory of CUE has not been adjudicated by the RO in the first instance, the Board does not have jurisdiction over any theory of CUE in a prior rating decision. The appellant may submit a formal claim on the VA Form 21-526 to initiate RO consideration of a CUE motion. Any CUE motion is not intertwined with the current issue on appeal. In July 2021, the Board remanded the service connection for the cause of death issue on appeal to obtain an addendum VA medical opinion to address whether the service-connected testicular lymphoma, to include chemotherapy used to treat the condition, caused, aggravated, or otherwise substantially contributed to the Veteran's cause of death. An addendum VA medical opinion with supporting rationale was provided in September 2021; therefore, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the July 2021 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that all relevant facts have been properly and sufficiently developed in the appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. SERVICE CONNECTION FOR CAUSE OF DEATH LEGAL CRITERIA Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected 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 order to establish service connection for cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and death. Under the relevant laws and regulations, 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; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. In addition to direct service connection (discussed above), service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(c). The Veteran's causes of death (bronchitis, pulmonary fibrosis, and COPD) are not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309(e). Bronchitis, pulmonary fibrosis, and COPD are not listed as a disease for which presumptive service connection based on exposure to herbicides agents may be granted. 38 C.F.R. § 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27, 630 (May 20, 2003). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). 1. Service Connection for Cause of Death is Denied The appellant asserts that the Veteran's cause of death is related to chemotherapy used to treat the service-connected left testicular non-Hodgkins' lymphoma. The appellant asserts that chemotherapy compromised the Veteran's immune system, causing a mycoplasma avium complex (MAC) infection, which in turn caused the Veteran's COPD. See June 2021 Board Hearing Transcript, October 2015 VA Form 9, April 2015 Statement in Support of the Claim. The death certificate reflects that the Veteran died in January 2012. The cause of death is listed as acute exacerbation of chronic bronchitis due to pulmonary fibrosis and COPD (lung disorders). The death certificate also indicates that tobacco use contributed to death. The evidence of record weighs against finding that the Veteran's lung disorders were caused by or otherwise etiologically related to service. First, the Board recognizes that the Veteran served in Vietnam and is entitled to the presumption of exposure to Agent Orange; however, the Veteran's lung disorders are not among those presumptive herbicide disorders enumerated in 38 C.F.R. § 3.309(e). As such, presumptive service connection is not warranted. Moreover, the appellant does not allege that the lung disorders were directly related to herbicide agent exposure. Additionally, the evidence does not show, and the appellant does not contend, that the Veteran's lung disorders manifested in or were otherwise related to active service. The service treatment records are silent for symptoms, diagnosis, or treatment of the lung disorders. The May 1973 service separation examination report reflected no significant abnormalities of the chest or the lungs. The first occurrence of lung disorders is evidenced in a January 2004 radiology report during workup for testicular lymphoma, more than 30 years after the Veteran separated from service. This report mentions hyperinflation of the lungs consistent with COPD, as well as minimal scarring fibrotic changes in the upper right lobe. The appellant has not contended that the Veteran's lung disorders have been present since service. Therefore, continuity since service is not present, based on the evidence of record, including the appellant's statements. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Moreover, no treating or examining medical provider of record has indicted a medical nexus between the Veteran's bronchitis, pulmonary fibrosis, or COPD and active service. Service connection may still be warranted if the evidence otherwise indicates a relationship between the Veteran's lung disorders and his service-connected disabilities. The appellant's main contention is that the lung disorders that caused the Veteran's death developed due to his treatment for service-connected left testicular non-Hodgkins' lymphoma. Specifically, in the Board hearing testimony, VA Form 9, and April 2015 Statement in Support of the Claim, the appellant asserts that the Veteran's R-CHOP chemotherapy drugs made the Veteran more susceptible to the ensuing MAC infection, and that the infection, in turn, made him dependent on oxygen, causing COPD. At the time of the Veteran's death, service connection was in effect for tinnitus, bilateral hearing loss, left testicular non Hodgkins' lymphoma, and erectile dysfunction. With respect to tinnitus, bilateral hearing loss, and erectile dysfunction for which service connection had been established at the time of death, the evidence of record does not indicate, and the appellant does not allege, that the service-connected tinnitus, bilateral hearing loss, or erectile dysfunction are related to the Veteran's cause of death. The September 2021 VA examiner opined that there is no reasonable anatomic or physiologic relationship between tinnitus, hearing loss, or erectile dysfunction and the cause or progression of the Veteran's lung disorders. See September 2021 VA examination report. Moreover, the death certificate made no mention of the service-connected tinnitus, bilateral hearing loss, or erectile dysfunction, and there is no indication of record that they contributed in any manner to the Veteran's death. Rather, the primary cause of death listed on the Veteran's death certificate was an acute exacerbation of his chronic bronchitis. The underlying causes of death listed were pulmonary fibrosis and COPD. As for the service-connected left testicular lymphoma, the appellant alleges that there is a causal connection between the chemotherapy rendered to treat the service-connected testicular lymphoma and the cause of the Veteran's death (lung disorders). However, the weight of the evidence is against finding that the testicular lymphoma caused or aggravated the Veteran's lung disorders. The evidence of record shows that COPD and fibrotic changes in the right lung were initially revealed in February 2004 during a workup for the testicular lymphoma. At that time, a chest x-ray showed hyperinflation of the lungs consistent with COPD changes with flattening diaphragm and scarring or fibrotic changes in the right upper lobe. A computed tomography (CT) of the chest, abdomen and pelvis also showed a band-type density of fibrotic and linear markings involving the right apex in the right upper lung. It was noted that the fibrotic changes seemed to be related to a chronic inflammatory process or previous infection process. The Veteran received chemotherapy for the testicular lymphoma from March 2004 until August 2004. See February 2004, March 2004, September 2004 private treatment records. As such, the record reflects evidence of COPD and fibrotic changes with associated chronic inflammatory or infectious process prior to the initiation of chemotherapy. Treatment records also indicate that the Veteran had a longitudinal history of tobacco use. At the time that COPD and fibrotic changes were discovered in the lungs, it was noted that the Veteran smoked approximately one pack per day for the past 20 to 30 years. Treatment notes also indicate that the Veteran continued to smoke cigarettes well after the MAC infection resolved, despite his constant use of oxygen for severe COPD. See February 2004 private treatment record; October 2007, January 2008, March 2009, January 2010, January 2012 VA treatment records. In August 2007 and February 2009 statements, the Veteran's treating physicians wrote that the Veteran's MAC infection was a direct result of chemotherapy treatment for lymphoma, which compromised his immune system and damaged his lungs, requiring him to use oxygen 24/7. See August 2007 private treatment record, February 2009 VA treatment record. While the physicians indicated a relationship between the Veteran's MAC infection and lymphoma chemotherapy, the facts relied upon were incomplete as neither physician considered the evidence of damage to the lungs prior to initiation of chemotherapy in March 2004, as February 2004 diagnostic imaging revealed COPD, as well as fibrotic changes consistent with a chronic inflammatory or infectious process in the right upper lobe. The treatment physicians also did not address the relevance of the Veteran's longitudinal history of decades of tobacco use on damage to the lungs versus the few months of chemotherapy treatment from March 2004 to August 2004. A VA opinion dated December 2009 acknowledged that the Veteran's chemotherapy could have resulted in the MAC; however, this VA examiner indicated that testicular lymphoma could only cause COPD if the lymphoma metastasized to the lungs a premise that does not appear to have happened in the Veteran's case. See December 2009 VA examination report. In August 2015, a VA examiner discussed the likelihood that the Veteran's service-connected disabilities, particularly his lymphoma treatment, caused or aggravated his lung disorders before opining that such a relationship did not exist. Addressing the contention that the MAC that the Veteran developed during his chemotherapy damaged the Veteran's lungs, the examiner noted that there was objective medical evidence of lung changes in the right upper lobe consistent with chronic MAC infection prior to chemotherapy that a February 2004 CT scan revealed evidence of MAC infection and a PET scan performed two days after initiation of chemotherapy, which is not enough time to be immunocompromised, also showed the right upper lobe to be an active inflammatory process. Moreover, the VA examiner in August 2015 explained that the evidence shows that the Veteran had a recurrence of MAC infection after chemotherapy was discontinued, at a time when he was not immunocompromised by chemotherapy. The VA examiner noted that infections such as MAC were common with general underlying lung disease. In this case, the VA examiner in August 2015 opines that the recurrent MAC infection suffered by the Veteran was more likely due to lung damage secondary to the Veteran's decades-long tobacco use not the chemotherapy drugs. The VA examiner explained that the Veteran became oxygen dependent due to his severe COPD, which was caused and further aggravated by his continual tobacco abuse. See August 2015 VA examination report. In September 2021, a VA examiner reiterated that the Veteran's testicular lymphoma, to include lymphoma chemotherapy drugs, did not cause, aggravate, or otherwise substantially contribute to the Veteran's lung disorders. Upon reviewing the evidence of record, the VA examiner explained that the treatment records describe a local pulmonary fibrosis related to infection that was limited to the right upper lobe and not a generalized pulmonary fibrosis. Moreover, this local fibrosis was present before the initiation of lymphoma treatment and followed the expected course of a difficult-to-treat disease (MAC). The examiner noted that the effects of chemotherapy would have begun decreasing at the end of treatment in August 2004 and would have returned to baseline as of mid-2005. See September 2021 VA examination report. Furthermore, the September 2021 VA examiner noted that the Veteran had severe COPD by pulmonary function testing, imaging, and chronic carbon dioxide retention levels, which factors were present and progressive without mention of progressive pulmonary fibrosis or other factors regarding chemotherapy and immunotherapy in the records. The VA examiner explained that the Veteran's progression of COPD was inexorable due to the expected factors of a patient with advanced COPD, that is, anatomic emphysema, overinflated lungs, and diminished diffusing capacity. The VA examiner opined that the Veteran's cause of death, based on all available information, was the severe COPD, which in all probability was the result of the Veteran's cigarette use. The VA examiner noted that the Veteran clearly did smoke and continued to smoke even in the presence of significant symptoms and medical advice to the contrary, which was causative in initiating COPD at some earlier point in his life and accelerating the progress to severe COPD and eventual death. The VA examiner also considered the internet articles submitted in 2015, and noted that, while of interest, they are inapplicable to the facts of this this case because the Veteran did not develop diffuse pulmonary fibrosis. In support of her claim, the appellant has submitted several internet articles. These articles collectively note a higher incidence of pulmonary complications in patients treated with R-CHOP chemotherapy for non-Hodgkins lymphoma, such as pulmonary fibrosis, bacterial pneumonia associated with neutropenic fever, interstitial pneumonitis, and reactivation of tuberculosis. As the evidence in this case does not indicate that the Veteran had generalized pulmonary fibrosis, or that he was diagnosed or treatment for bacterial pneumonia associated with neutropenic fever, interstitial pneumonitis, or tuberculosis, the general correlation suggested by the internet articles is lessened in this case. To the extent such studies may still show some general higher incidence of pulmonary complication, this general showing of higher incidents is outweighed in this case by the case specific and fact specific opinions provided by VA examiners and the supporting rationales. The VA examiners' opinions were based on medical records review, and make case-specific conclusions based on the Veteran's medical history. For these reasons, the VA examiners' opinions, which specifically address the Veteran's testicular non-Hodgkins lymphoma, as well as the alleged effects of chemotherapy used to treat the testicular lymphoma, are of greater weight. In arriving at this conclusion, the Board recognizes the statements of the appellant regarding the effect of the Veteran's chemotherapy on his lungs. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (Continued on the next page) Under the specific facts of this case, however, where there are multiple disorders and possible etiologies and complex questions of causation both from disease processes and treatments, the appellant is not competent to testify regarding the etiology of lung disorders. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make; therefore, the lay statements of belief that the Veteran's cause of death is related to his service or a service-connected disability are not competent to establish such relationship. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the appeal of service connection for the cause of the Veteran's death; consequently, the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.