Citation Nr: 21015699 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 12-29 448 DATE: March 18, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in December 2010. The cause of death was metastatic rectal cancer. 2. At the time of the Veteran’s death, service connection was in effect for posttraumatic stress disorder (PTSD) and tinea pedis. He had been assigned a total disability rating based on individual unemployability (TDIU) from July 28, 2004. 3. The probative evidence of record does not show that the listed cause of the Veteran’s death was related to his active service, or that service-connected disabilities caused or contributed to the Veteran's death. Cancer was first shown years post-service. 4. The Veteran was not continuously rated totally disabled by reason of service-connected disabilities for a period of 10 years or more immediately preceding death; or for five years with the total evaluation continuously in effect from the date of discharge from military service; or for one year as a former prisoner of war (POW) who died after September 30, 1999. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309(d), 3.311, 3.312. 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. §§ 3.22, 20.1106. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1965 to January 1968, including service in Vietnam. He died in December 2010 and the appellant is his surviving spouse. In March 2017, the appellant appeared at a Travel Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board remanded this claim in September 2017, April 2019, and August 2020 for additional evidentiary development. The appeal has returned to the Board for appellate review. 1. Entitlement to service connection for the cause of the Veteran's death Service connection for the cause of a veteran’s death requires a showing of (1) the existence of a service-connected disability, and (2) a causal relationship, either principle or contributory, between the disability and the Veteran’s death. 38 C.F.R. § 3.312. Generally, to establish that there was a service connected disability there must be competent evidence showing: (1) the Veteran suffered from a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the claimed disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). A service-connected disability will be considered as the principal, or 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appellant seeks entitlement to service connection for the cause of the Veteran’s death. The Veteran passed away in December 2010. At the time of the Veteran’s death, service connection was in effect for PTSD and tinea pedis. The Veteran was also awarded TDIU, effective July 28, 2004. That was the date of the claim for which he first sought service connection for disabilities. The death certificate records the Veteran’s cause of death as metastatic rectal cancer. The Board observes that the Veteran filed a previous claim of entitlement to service connection for residuals of colorectal cancer, which was later withdrawn in early 2005. The Veteran served in Vietnam during the Vietnam War, and is presumed to have been exposed to a herbicide agent. The appellant contends that the Veteran’s service-connected PTSD contributed to his death. Specifically contending that the Veteran’s PTSD symptoms prevented him from seeking medical treatment for his colon cancer that ultimately caused his death. In the alternative, the appellant contends that the Veteran’s exposure to herbicide agents in Vietnam and/or exposure to toxic water at Camp Lejeune caused the Veteran’s colon cancer. The appellant has also contended that the Veteran had diabetes mellitus that is presumed to be due to his herbicide exposure, and the diabetes contributed to his death. Pursuant to the September 2017 Board remand, medical treatment records were obtained, and medical opinions were obtained in October 2018 and November 2018. The October 2018 examiner opined that it is less likely than not the Veteran’s service-connected PTSD caused or contributed substantially or materially to the Veteran’s death. The October 2018 examiner addressed the appellant’s contentions that the Veteran’s PTSD caused him to delay medical treatment, providing that the Veteran was diagnosed with colon cancer in 2002 and subsequent medical treatment records indicate he sought appropriate treatment for his colon cancer. The November 2018 examiner provided a negative opinion as to whether the Veteran’s service-connected tinea pedis contributed to his death, a negative opinion as to whether the Veteran was diagnosed with diabetes mellitus prior to his death, and a negative opinion as to whether there is any causal association between colorectal cancer and herbicide exposure in Vietnam and/or toxic water exposure at Camp Lejeune. Regarding the nexus between the Veteran’s colon cancer and herbicide exposure and/or toxic water at Camp Lejeune, the examiner rested his opinion on the fact that colon cancer is not on the presumptive lists. The Board remanded this matter in April 2019, finding the October 2018 opinion to be inadequate as the examiner provided speculative remarks to support her opinion. The Board also found the November 2018 opinion to be inadequate as the examiner did not provide sufficient clarification of the October 2018 examiner’s speculative remarks. Thus, the Board did not rely on these examinations when making this present decision, but these examinations provide the Board with a notion of the potential impact of the Veteran’s disabilities on his death. Pursuant to the April 2019 Board remand, a VA medical opinion was obtained in January 2020. The January 2020 examiner opined that the Veteran’s death was less likely than not proximately due to or the result of the Veteran’s service-connected disorders. The examiner provided the rationale that PTSD and tinea pedis have no known causal association with colorectal cancer. However, the examiner failed to address whether the Veteran’s PTSD potentially causing a delay in seeking medical treatment contributed to his death. As such, the Board found the January 2020 opinion to be inadequate for the purposes of determining cause of death. Thus, the Board did not rely on this examination when making this present decision, but this examination provides the Board with a notion of the potential impact of the Veteran’s disabilities on his death. The Board notes that the Veteran’s private physician submitted a letter dated January 2018 stating that it is possible that the Veteran’s underlying PTSD and prior Agent Orange exposure delayed him in seeking prompt medical care and worsened his prognosis. No particular rationale was provided. Pursuant to the August 2020 Board remand, medical opinions were obtained in November 2020. The November 2020 examiner provided that she reviewed the Veteran’s claims file and noted that there is limited objective evidence that the Veteran was delayed in seeking consultation for his disability as it was first identified in July 2002 after the Veteran presented with abdominal pain and rectal bleeding. The examiner further provided that the Veteran underwent resection soon after his diagnosis and early identification of the cancer does not prevent metastasis or recurrence. She indicated that the Veteran is noted to have exercised diligence in seeking treatment for his cancer which he received in a timely manner. She concluded that all evidences considered, it is her opinion that it is less likely than not that the Veteran’s service-connected PTSD delayed him seeking medical treatment for colon cancer, which ultimately cause his death. The November 2020 examiner further provided that research has been done on rectal cancer and high on the list of risk factors include age, personal history of colon, rectal cancer, and adenomatous polyps, and familial cancer syndromes. Lifestyle choices such as inactivity, drinking, smoking, and low fiber diet are also identified as risk factors for rectal cancer. Environmental exposures are not acknowledged to be causative in rectal cancer. The examiner concluded by opining that it is less likely than not that the Veteran’s cause of death is related to his herbicide agent exposure in Vietnam and/or exposure to toxic water at Camp Lejeune. There is no competent medical evidence indicating that the Veteran’s cause of death was incurred in service or caused by injury or disease that began during a period of active duty service. There is no evidence the Veteran’s cause of death was manifested to a compensable degree within one year of the Veteran’s discharge from service for presumptive consideration. There is also no evidence that the above service-connected disabilities caused, aggravated or hastened the death of the Veteran. Finally, although the appellant contends that the Veteran’s cause of death was either due to PTSD symptoms delaying treatment, toxic water at Camp Lejeune, or herbicide exposure, there is no objective evidence in the record to support this claim. The appellant has provided no corroborating evidence to support these contentions. The appellant is not shown to have the medical expertise to competently render an independent medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the lay assertions of etiology of record are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection for the cause of the Veteran’s death. Latham v. Brown, 7 Vet. App. 359, 365 (1995). The Board notes that the appellant’s representative submitted a February 2021 post-remand brief indicating that the November 2020 medical opinion was inadequate as the opinion did not discuss toxic water at Camp Lejeune or the impact of the Veteran’s service-connected PTSD and did not cite how the examiner can say that the Veteran exercised diligence in his treatment or provide an actual opinion other than it is not the result of toxic water or caused by PTSD. The Board disagrees. The November 2020 examiner noted that environmental exposures are not acknowledged to be causative in rectal cancer and noted that the cancer diagnosis was more likely than not related to risk factors unrelated to his military service. The February 2021 post-remand brief further indicates the November 2020 medical opinion was inadequate because the examiner did not discuss whether the Veteran’s PTSD could have any relationship to the Veteran’s death with the added stress of a cancer diagnosis. The Board disagrees. The November 2020 examiner noted that there was limited objective evidence that the Veteran was delayed in seeking treatment as he presented with abdominal pain and rectal bleeding in July 2002, which was diagnosed, and he underwent resection soon after his diagnosis. Further the examiner indicated that even if the Veteran were to seek treatment before July 2002, early identification of the cancer would not have prevented metastasis or recurrence, which ultimately caused his death. The February 2021 post-remand brief further indicates that the opinion should be reserved for a medical professional who deals with mental health as they would have a better knowledge on this topic and can provide a more thorough opinion on the matter at hand. The Board notes that the questions of "whether an examiner is competent and whether he or she has rendered an adequate exam are two separate inquiries." See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019) (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)). Absent some challenge to the expertise of a VA expert, there is no requirement that the VA present affirmative evidence of a medical professional's qualifications in every case as a precondition for the Board's reliance upon that person's opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). This presumption is rebutted when the appellant raises the issue of competency. See Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019). After an appellant challenges the competency of a medical examiner, the Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether the medical examiner was competent to provide the opinion. Id. at 1381. However, if the appellant wishes to challenge the competency of an examiner, the appellant may request the curriculum vitae and other information about the qualification of a medical examiner. Id. (stating "The veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner."). The Board finds that the appellant’s representative meets the Francway criteria, as it is more than just general assertions of inadequacy. Hence, the challenge is sufficient to shift the burden of persuasion to the VA to establish the examiner’s qualifications by providing information about those qualifications to the appellant and her representative. However, the law does not require that the Board obtain a new VA opinion unless it is deemed that the VA examiner was not qualified. In that respect, the Board is not convinced at this time. The Board finds the November 2020 VA opinion to be adequate in this regard as the question before the examiner is whether the Veteran’s PTSD caused a delay in treatment, which ultimately caused his death. The examiner adequately addressed this question following review of the objective medical evidence and noted that the evidence does not support a delay in treatment. The examiner further noted that had the Veteran sought treatment sooner, that would not have prevented the Veteran’s cancer from metastasizing, which ultimately caused his death. The Board consequently finds that the examiner was competent to provide the VA opinion relevant to the appellant's claims. The Board finds that a remand for updated opinions would serve no useful purpose and would impose an unnecessary additional burden on the VA, as well as a delay to final adjudication of the appellant's claims, with no likely additional benefit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, the Board finds that an opinion from a mental health expert is not warranted. The Board finds the opinion of the November 2020 VA examiner more probative as to the cause of the Veteran’s death than the appellant’s lay opinion and the January 2018 private physician’s opinion with no rationale. For these reasons and based on the objective medical evidence, the Board finds that the condition listed on the death certificate as causing the Veteran's death are neither caused by events, injuries, or illnesses during active service, nor was the Veteran service-connected disabilities. Therefore, service connection for cause of death has not been established. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Entitlement to DIC under 38 U.S.C. § 1318 Although a veteran’s death may not be due to service-related conditions, DIC benefits may be payable as if the cause of death were service connected if the cause of the veteran’s death was not due to willful misconduct and the veteran was continuously rated totally disabled by reason of service connected disabilities for a period of 10 years or more immediately preceding death; or for five years if the total evaluation was continuously in effect from the date of discharge from military service; or for one year if the veteran was a former POW who died after September 30, 1999. See 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). In the present case, the Veteran was discharged from service in January 1968. The Veteran was service connected for PTSD and tinea pedis. He had been assigned a TDIU, effective July 28, 2004. This was the date that he filed his claim seeking service connection for disabilities. He died in December 2010. Hence, the Veteran was neither continuously rated totally disabled (either schedular or based on unemployability) for a period of at least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for   a period of not less than five years after his discharge from service. There is no basis on file to conclude that an earlier effective date could have been assigned. Also, the evidence does not show that he was a former POW. Therefore, the criteria for DIC benefits under 38 U.S.C. § 1318 are not met. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.