Citation Nr: 21008448 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-12 895 DATE: February 17, 2021 ORDER 1. Entitlement to dependency and indemnity compensation (DIC) benefits based on service connection for cause of the Veteran’s death is denied. 2. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The death certificate shows the immediate cause of death was lung cancer. 2. At the time of the Veteran’s death, he was service connected for posttraumatic stress disorder (PTSD) and fibromyalgia. 3. The preponderance of the evidence is against a finding that the Veteran’s death was caused or contributed by a disease or injury incurred in service. 4. 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 approximately 22 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 DIC benefits based on service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 1137, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. 2. The criteria for entitlement to DIC under the provisions of 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 had active duty from May 1972 to November 1974 and November 1990 to June 1991. The appellant testified in support of these claims during a videoconference hearing held before the undersigned Veterans Law Judge in October 2020. A copy of the transcript is in the claims file. Service Connection for Cause of Death A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive Dependency and Indemnity Compensation (DIC). 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 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). 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 VA compensation is warranted for a DIC claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as lung cancer (as a malignant tumor), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted on a presumptive basis for certain specified diseases, including kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer, as due to presumed exposure to the contaminants in the water supply at Camp Lejeune provided the disease manifests to a compensable degree at any time after service in a Veteran who had no less than 30 days (consecutive or nonconsecutive) of active service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. 1. Entitlement to service connection for cause of death The appellant asserts that service connection is warranted for the cause of the Veteran’s death. During the October 2020 Board hearing, the appellant and her representative asserted generally that the Veteran’s lung cancer was the principle cause of his death and it resulted from the Veteran’s military service. The appellant testified that the Veteran attributed his lung cancer to the smoke he inhaled in the oilfield while he was stationed in Saudi Arabia. She stated that the Veteran was stationed there in the wintertime, which is peak season for the smoke. The appellant stated that when the Veteran retired, he stated that he had a hard time breathing. Furthermore, the appellant acknowledged that the Veteran was a smoker, but contends it was the burn pits or the burning oil that contributed or accelerated the Veteran’s lung cancer. Alternatively, the appellant contends that the lung cancer is related to contaminated water at Camp Lejeune or that the Veteran’s posttraumatic stress disorder (PTSD) caused atrial fibrillation. The Board has reviewed the evidence of record and finds that the preponderance of the evidence is against finding there is a relationship between the Veteran’s lung cancer and service. The reasons follow. The claims file documents that the Veteran died in June 2013. His death certificate documents that the immediate cause of death was lung cancer with atrial fibrillation listed as an “other significant condition contributing to death.” At the time of the Veteran’s death, he was service connected for posttraumatic stress disorder (PTSD). After his death, he was service connected for fibromyalgia. The Veteran’s service treatment records are silent for any symptoms or treatment related to lung cancer in service, and the evidence does not support a finding that it developed to a compensable degree within one year of separation from service. For instance, the November 1974 and February 1975 Reports of Medical Examination found the Veteran to be clinically normal in all areas. A February 1975 Report of Medical History shows that the Veteran denied having or ever having asthma, shortness of breath; pain or pressure in chest; or heart trouble. Additionally, the Report of Medical Examination from August 1989 showed that the Veteran was found normal in most areas. The examiner found that the Veteran was abnormal in the mouth and throat, noting that he had enlarged tonsils. The accompanying Report of Medical History from August 1989 showed that the Veteran reported to be in good health and denied having or ever having asthma, shortness of breath; pain or pressure in chest; or heart trouble. Similarly, the Report of Medical Examination the Report of Medical Examination from May 1991 shows that the Veteran was found to be clinically normal in all areas, including sinuses; mouth and throat; lungs and chest; and heart. In the accompanying May 1991 Report of Medical History, the Veteran reported pain or pressure in his chest and palpitation and pounding heart, but specifically denied having or ever having asthma; shortness of breath; and heart trouble. The Veteran completed another Report of Medical History in February 1995. At that time, the Veteran denied having or ever having asthma; shortness of breath; pain or pressure in chest; palpitation or pounding heart; and heart trouble. Thus, the preponderance of the evidence is against finding that the Veteran had an in-service incurrence of lung cancer. Thus, the second element of a service-connection claim is not met. Furthermore, post-service VA treatment records show that the Veteran was diagnosed with lung cancer in November 2011 and began chemotherapy treatment in December 2011. As the Veteran was diagnosed with lung cancer almost 22 years following service discharge, the Board finds this is evidence that tends to show that lung cancer did not have its onset in service. Additionally, there is no competent evidence of record that the Veteran’s lung cancer manifested to a degree of 10 percent disabling or more within one year from his June 1991 separation from service. As stated above, he was diagnosed with lung cancer in November 2011, which is more than 20 years following service discharge. Thus, a presumption of service connection based on the chronicity of lung cancer is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.307, 3.309(a). The Board notes that lung cancer is not one of the enumerated diseases for which service connection may be presumed as a result of exposure to contaminated water at Camp Lejeune. Additionally, service personnel records do not document the Veteran being stationed at Camp Lejeune. Thus, there is no probative evidence that the Veteran’s lung cancer was directly caused by or resulted from exposure to contaminated water at Camp Lejeune. As to evidence of a nexus between the Veteran’s lung cancer and service, the appellate provided a medical opinion from Aliya Ali, M.D., F.H.M. in September 2013. Dr. Ali stated that it is just as likely as not that the Veteran’s lung cancer was secondary to his exposure to the smoke from the Gulf War oil fires as to his smoking of cigarettes. In November 2013, VA requested an expert medical opinion regarding the appellant’s claim. The examination report documents that the VA examiner reviewed the claims file and concluded that it was less likely as not that the Veteran’s lung cancer was caused by his military service. The examiner stated that reputable medical references do not report burning oil fields as a cause of lung cancer. The examiner said a principle of toxic exposure by environmental or other toxins is the length of exposure, which is a key element in producing a significant pathological effect on the human body. Therefore, the examiner said a relatively brief possible exposure to burning oil fields in Operation Desert Storm would not hold up statistically to a history of smoking for years, as is the case with this Veteran. Additionally, the examiner noted that tobacco use is a well-documented, well-accepted, and well-known cause of lung cancer. Furthermore, the examiner did not find evidence of documented respiratory conditions during the 1990-1991 period of service, making significant exposure while the Veteran was in service less likely. The examiner concluded that significant and pathological exposures to a particulate matter, such as burn pit smoke, would result in immediate respiratory conditions and would not show a delay of years. Therefore, the examiner concluded it is less likely as not that the Veteran’s possible in-service exposure to burning oil wells in southwest Asia caused or significantly contributed to the lung cancer that resulted in the Veteran’s death. In November 2016, VA sought another medical opinion regarding the appellant’s claim. The VA examiner reviewed the claims file and concluded that it is less likely than not that the Veteran’s service-connected disability, to include conditions that were secondary to the Veteran’s service-connected disabilities, contributed to the Veteran’s death. The examiner stated that PTSD or the treatment for PTSD is not known to cause lung cancer or atrial fibrillation. In this case, the Veteran’s lung cancer was most likely caused from his long-standing history of heavy smoking. The examiner stated the contention that the Veteran’s PTSD medication, specifically Paroxitine, contributed to his atrial fibrillation is erroneous and not supported by any facts regarding side effect of this medication on medical literature review. The examiner said that the Veteran’s atrial fibrillation was most likely caused from his severe COPD, secondary to long standing history of heavy smoking. Additionally, the examiner did not find evidence within the Veteran’s medical records that his PTSD caused debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of a terminal lung cancer condition. Furthermore, on review of the Veteran’s service treatment records, the examiner also stated that he did not find any other treatment or diagnosis which would have at least as likely as not contributed to the Veteran’s death. For instance, the examiner did not find other predisposing factors for development of PTSD and atrial fibrillation in the Veteran’s service treatment records. The examiner said the Veteran’s notes of respiratory symptoms and his complaints of palpitation or pounding heart on his discharge examination from his second period of service were self-limiting symptoms and are not indicative of development of atrial fibrillation, as none was diagnosed during the Veteran’s service and none was seen to develop immediately after his period of service. In conclusion, the examiner stated that based on the information available in the medical records, the Veteran was a heavy or long-term smoker, suffering from severe COPD, and ultimately developed lung cancer, which was inoperable and caused his death within 16 months. The examiner said this is a typical presentation of smoking-related lung disease and lung cancer. The examiner said the medical literature review clearly indicates that bronchiogenic lung cancers are heavily predisposed to by smoking, and the Veteran had a significant smoking history (40 or more years). A literature review is also clear on the issue that environmental hazards from Gulf War related exposure (burn pits, petroleum fumes, etc.) can lead to acute respiratory illness or sometimes cause asthma like conditions, but this type of exposure has not been linked to bronchiogenic lung cancers like the one the Veteran had. There was no evidence that the Veteran suffered from asthma or other lung conditions that can develop secondary to such an exposure. The examiner stated that it is obvious that this Veteran died of complications arising out of heavy smoking, without his military service or service-connected disabilities playing a role his death. The Board finds the opinions of the November 2013 and November 2016 VA examiners are essentially the only probative opinions, which are evidence against the claim. For example, the VA examiners provided detailed rationales why they felt that the Veteran’s lung cancer was not caused by or resulted from his military service or service-connected PTSD and supported their opinions with evidence in the file and medical principles. The positive opinion provided by Aliya Ali, M.D. did not include a rationale for his assertion that the Veteran’s lung cancer was just as likely as not secondary to his exposure during the Gulf War as to his smoking of cigarettes. Thus, without a rationale, the positive medical opinion has no probative value. Therefore, the only probative evidence is against the claim for service connection for the cause of death. The appellant has attempted to establish a nexus through her own lay assertions that the Veteran’s lung cancer and atrial fibrillation were caused by or related to service; however, the appellant has not demonstrated competency to offer opinions as to the etiology of lung cancer and a cardiovascular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Lung cancer and cardiovascular disorders require specialized training for determinations as to diagnosis and causation, and the appellant is, therefore, not susceptible to lay opinions on etiology. The appellant is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between the Veteran’s lung cancer and atrial fibrillation and service. The Board finds that an injury or disease in service did not cause or contribute substantially or materially to cause the Veteran’s death. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to dependency and indemnity compensation under 38 U.S.C. § 1318 The appellant believes she is entitled to DIC under 38 U.S.C. § 1318. A surviving spouse may establish entitlement to DIC in the same manner as if a veteran’s death were service connected where it is shown that a veteran’s death was not the result of willful misconduct, and a 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) a 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). At the time of the Veteran’s death, he was service connected for posttraumatic stress disorder (PTSD), which was rated as 70 percent disabling, effective March 8, 2005. Following the Veteran’s death, his PTSD was increased to 100 percent, effective July 29, 2010, and he was service connected for fibromyalgia, which was rated as 10 percent disability, effective July 29, 2010. Additionally, the Veteran received Individual Unemployability, with the effective date January 7, 2012. The Veteran’s combined disability rating was 100 percent, effective July 29, 2010. The Veteran’s date of death was June 16, 2013, which is just shy of three years. In light of the foregoing, the record does not show that he was in receipt of a total service-connected disability rating for 10 years at the time of his death. Moreover, the Veteran’s death occurred approximately 22 years after his separation from active duty service in June 1991. Lastly, the Veteran’s service treatment and personnel records do not suggest that he was a former POW. Therefore, there is no legal basis for entitlement to DIC under the provisions of 38 U.S.C. § 1318. Thus, the appellant’s claim must be denied as a matter of law. The Board is sympathetic to the appellant’s loss and recognizes the Veteran’s honorable service to his country, however it is bound by the law and regulations governing the payment of VA benefits. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, Associate 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.