Citation Nr: 21016208 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-41 204 Date: March 22, 2021 ORDER Service connection for cause of the Veteran’s death is denied. REFERRED The Veteran filed a claim for sepsis and/or Dependency and Indemnity Compensation (DIC) for cause of the Veteran's death, under 38 U.S.C. § 1151, in August 2016, but the AOJ still has not adjudicated this claim, despite the Board’s referral of this issue to the AOJ in December 2019. Thus, again, this issue is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The Veteran died in December 2013 and the immediate cause of death, as certified, was respiratory failure, due to/or as a cause of lung cancer, and due to/or as a consequence of sepsis. 2. At the time of the Veteran’s death, he was service-connected for post-traumatic stress disorder (PTSD), tinea versicolor, degenerative changes of the lumbar spine, bilateral lower extremity radiculopathy, and erectile dysfunction (ED); but he was not service-connected for lung cancer, sepsis, and/or any disability that may be associated with respiratory failure. 3. There is no probative evidence that the immediate and/or underlying cause of the Veteran’s death is causally related to his active military service and/or any of his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1971 to October 1974, and from September 1990 to May 1991. He died in December 2013. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the appellant and the Veteran’s daughter, L.G. testified at a Central Office hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In December 2019, the Board remanded the case to the RO for further evidentiary development. Service Connection for Cause of the Veteran’s Death Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). To constitute as a principal cause of death from a service-connected disability, it must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). To constitute as a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the Veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had a material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995); 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that a service-connected disability casually shared in producing death, rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). However, if the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service-connected disability rendered the Veteran less capable of resisting the effects of other diseases. See 38 C.F.R. § 3.312(c)(3). The Certificate of Death establishes that the immediate cause of the Veteran’s death was respiratory failure, due to/or as a cause of lung cancer, and due to/or as a consequence of sepsis. The Veteran is service-connected for PTSD; tinea versicolor; degenerative changes of the lumbar spine; bladder dysfunction; residuals of broken needle in right knee; radiculopathy of the bilateral lower extremity; and ED. However, at the time of his death, he was not service-connected for respiratory failure (or any other respiratory conditions), lung cancer, or sepsis. Accordingly, the Board has considered whether these non-service-connected disabilities, which are the immediate and/or underlying cause of the Veteran’s death, are causally related to the Veteran’s active service. Service treatment records (STRs) do not show any evidence of an illness, disease, treatment, and/or conditions that may be related to a respiratory condition, lung cancer, or sepsis. The Veteran was diagnosed with lung cancer in 2011. See November 2011 Emergent Care-General Progress Note. He suffered from sepsis and respiratory failure in December 2013, which caused his death. As these conditions and/or diagnoses manifested more than twenty years after his separation from active service, they are too remote in time to establish a link to his active service. Pertinently, the appellant has not submitted any probative evidence, such as, for example, a private opinion that establishes a direct correlation between these disabilities and his service; buddy statements or testimonies from witnesses that the Veteran suffered from symptoms related to these conditions since his time in service; and/or medical evidence of chronic symptoms of these disabilities since the Veteran’s separation from service. Thus, the probative evidence does not show that the immediate and/or underlying cause of the Veteran’s death, and specifically, respiratory failure, lung cancer, and/or sepsis, are causally related to the Veteran’s active military service. As a matter of fact, in a June 2011 rating decision, the Veteran’s service connection claim for lung cancer was denied because the RO determined that there is no evidence that the Veteran’s lung cancer, also claimed as a breathing problem, began while he was on active duty or was diagnosed within one year of his separation from active duty. Following this rating decision, the Veteran did not perfect an appeal or submit additional, relevant evidence within one year of the rating decision, to show that his lung cancer was related to his active service. Thus, this rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the June 2019 Board hearing, the appellant testified that her “initial assertion was that [the Veteran’s] lung cancer, was due to burn pit exposure in the [Persian] Gulf”, and that there are some recent studies and medical treatise pertaining to this correlation. She also asserted that the Veteran’s lung cancer was a result of the Veteran’s severe PTSD, which was rated at 100 percent at the time the Veteran passed away. She explained that the Veteran is documented to have nicotine dependence throughout his VA treatment records. She clarified that the Veteran’s lung cancer was secondary to his PTSD because he was “well documented to have been self-medicating with greatly increased nicotine usage after his return from Gulf deployment.” Further, she stated that after the Veteran returned from serving in the Persian Gulf, she noticed that he began smoking more than he had been, prior to deployment. She explained that prior to his deployment, he smoked up to three cigarettes a day, on a daily basis, and that after his deployment, he smoked a pack of cigarettes, daily. The representative, on behalf of the appellant, cited to medical evidence, which noted that the Veteran “‘began using ETOH (sic) and illicit substances at that time’”, and stated that this treatment note was referring to 1995, and that this medical evidence “gives some credence to the assertion that the smoking, the nicotine abuse, was in direct result of his PTSD.” At the hearing, the Veteran’s daughter, L.S. also testified that the Veteran was not an active smoker, prior to his deployment to the Persian Gulf. She explained that after his service in the Persian Gulf, the Veteran’s smoking habit increased to the point where there were no longer boundaries for where he would smoke; and that his smoking habit was a coping mechanism. Accordingly, the Board has also considered whether the Veteran’s PTSD, and/or any of the Veteran’s service-connected disabilities, are related to the immediate and/or underlying cause of the Veteran’s death. In support of her claim, the appellant has submitted a private opinion from Dr. H.W. In this May 2019 opinion, Dr. H.W. explained that the Veteran was diagnosed with stage 4 lung cancer in 2011, and that he died in December 2013. He noted that it is well known that patients with PTSD have a higher incidence of nicotine use; the Veteran’s use of tobacco and its escalation is directly related to his PTSD; and that it is clear that the Veteran’s PTSD is closely related to his smoking, which caused lung cancer. However, Dr. H.W. did not provide any medical citation to support his determination that “it is well known that patients with PTSD have a higher incidence of nicotine use.” Additionally, there is no indication as to whether Dr. H.W.’s opinion is based on a review of the Veteran’s claims file and/or a review of the Veteran’s entire medical history. Thus, the Board finds that this private opinion is inadequate, as Dr. H.W. provided a generalized, ambiguous rationale to support his opinion. Nonetheless, given the Veteran’s assertions, the Board remanded the matter to the RO, in December 2019, for additional developments, including and not limited to, obtaining a VA medical opinion on the cause of the Veteran’s death, with respect to his PTSD and service-connected disabilities. Accordingly, in an August 2020 VA opinion, a VA examiner rendered a series of opinions that are responsive to the questions presented in the December 2019 Board remand. First, the VA examiner opined that it is less likely than not (less than 50 percent probability) any of the Veteran’s cause of death began during active service, or are related to any incident of service, including his exposure to burn pits while stationed in Saudi Arabia. As the rationale for this opinion, the VA examiner explained that medical research regarding burn pit exposures has not established any long-term respiratory sequalae or known respiratory disorder that can be definitively associated with the burn pit exposure. The VA examiner clarified that the medical article (Proposed Iraq/Afghanistan War-Lung Injury (IAW-LI) Clinical Practice Recommendations: National Academy of Sciences’ Institute of Medicine Burn Pits Workshop – American Journal, 2017), which the appellant submitted, in support of this claim, merely establishes that reports of respiratory complaints have been made by some exposed to burn pits, without any confirmed testing, imaging, or biopsy accomplished to confirm diagnosis or etiologies, and that therefore, further study is recommended. The VA examiner further explained that the development of lung cancer has, in no way, been associated with previous burn pit exposure, and that rather, lung cancer has been strongly associated with tobacco cigarette use, with tobacco cigarette use as the primary risk factor for later development of lung cancer. The VA examiner additionally noted that regardless of any respiratory complaints at the time of military discharge, the Veteran did not develop lung cancer until decades after his time in service, and that given many years of interval between his time in service and the Veteran’s lung cancer/death, it is not possible that the Veteran’s lung cancer developed in service, or is due to any time or event in service. Next, the VA examiner opined that it is less likely than not that any of the Veteran’s service-connected disabilities caused or contributed substantially or materially to his death. As the rationale for this opinion, the VA examiner identified all of the Veteran’s service-connected disabilities. Then, she explained that none of the Veteran’s service-connected disabilities have any causal relationship to the Veteran’s lung cancer or development of sepsis and respiratory failure at death. Further, she described the function of each service-connected disability, to include tinea versicolor, degenerative joint disease of the lumbar spine, bladder dysfunction, residuals of needle broken off right knee, lower extremity radiculopathy, and ED, and explained, for each service-connected disability, that it had no effects on the respiratory system. Next, the VA examiner opined that it is less likely than not the Veteran’s service-connected PTSD, or any service-connected disability, caused him to use tobacco products after service. As the rationale for this opinion, the VA examiner explained that the Veteran had a documented history of tobacco use before any PTSD or other service-connected disabilities were diagnosed. The VA examiner additionally explained that the Veteran used tobacco products throughout much of his adult life, increasing his risk for the development of lung cancer. In a September 2020 correspondence, the appellant conceded that her husband, the Veteran had a documented history of tobacco use before any PTSD or other service-connected conditions were diagnosed, prior to Desert Storm. However, she clarified and asserted that after his return from Desert Storm, his habit significantly increased from smoking one pack of cigarettes over the course of a week, to a pack a day. She further explained that this increased smoking would occur on occasions when he was severely depressed, which was often. Summarily, she asserted that the Veteran’s PTSD was closely related to his smoking, which caused the Veteran’s lung cancer, leading to his death. See September 2020 Correspondence; see also February 2021 Appellate Brief. Here, the Board finds the appellant’s lay statement are credible, as they are corroborated by the statements from the Veteran’s daughter, L.G., as well as medical evidence. While she is permitted to report about symptoms and manifestations that are capable of lay observation, however, she does not have the expertise to provide an opinion on the etiology of mental disabilities because such an opinion requires specialized knowledge and/or medical expertise. Specifically, the question of the relationship, if any, between PTSD and lung cancer involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship as it requires specialized medical knowledge or expertise in mental health, pulmonology, and/or oncology. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, there is no indication that the appellant has the medical training and/or expertise to provide such an opinion. Thus, the appellant’s opinion that the Veteran’s severe service-connected PTSD after Desert Storm lead to his increased smoking which in turn led to his lung cancer and then death, has no probative value. In addition, the Board evidence does not show that the Veteran’s smoking was related to and/or was a result of his service-connected PTSD. Despite the appellant’s assertions at the June 2019 Board hearing, as indicated above, that a treatment record notes that the Veteran “‘began using ETOH (sic) and illicit substances [in 1995]’”, and that this medical evidence “gives some credence to the assertion that nicotine abuse, was in direct result of his PTSD”, the medical evidence does not indicate that. For example, while a November 2002 VA examination for mental conditions indeed notes that the Veteran “began abusing ETOH and illicit substances in 1995,” the VA examiner clarified that the illicit substances that the Veteran was using were cocaine and cannabis, and that the ETOH abuse was beer consumption. However, there was no mention of tobacco or cigarette use. Similarly, at a June 2003 VA examination for PTSD, the Veteran reported that after he came back from the Gulf War, he did not get any help; he thought he could deal with his symptoms on his own; and that he got introduced to drugs and it had its consequences. However, there is no indication that he increased his use of tobacco/cigarettes at the time, as a result of PTSD. Further, other treatment records and VA examination reports similarly indicate that the Veteran increased his consumption of beer, and/or used illicit drugs as a coping mechanism for PTSD, but tobacco or cigarettes were not noted for these purposes. See e.g. February 2005 Ambulatory Outpatient Note; see also October 2008 VA Examination Report; see too, March 2010 VA Examination Report for PTSD; see too, October 2012 VA Examination Report for PTSD. Pertinently, with respect to whether service connection may be established for a tobacco-related disability or death on the basis that the disability or death was secondary to a service-connected mental disability that caused the Veteran to use tobacco products, VA law has provided specific guidance and states the following: Neither 38 U.S.C. § 1103(a), which prohibits service connection of a disability or death on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during service, nor VA’s implementing regulations at 38 C.F.R. § 3.300, bar a finding of secondary service connection for a disability related to the veteran’s use of tobacco products after the veteran’s service, where that disability is proximately due to a service-connected disability that is not service connected on the basis of being attributable to the veteran’s use of tobacco products during service. The questions that adjudicators must resolve with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service connected on the basis of being attributable to the veteran's use of tobacco products during service are: (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. If these questions are answered in the affirmative, the secondary disability may be service connected. Further, the secondary disability may be considered as a possible basis for service connection of the veteran’s death, applying the rules generally applicable in determining eligibility for dependency and indemnity compensation. VAOPGCPREC 6-2003. Turning to medical treatment records, as evidence, the Veteran himself reported that he smoked a pack of cigarette since age 15, and that he quit smoking in November 2010. See August 2011 Surgical History & Physical Note. Additionally, as noted above, the appellant conceded that the Veteran had a documented history of tobacco use before any PTSD or other service-connected conditions were diagnosed, prior to Desert Storm. Thus, the first criterion is not met, and accordingly, the Board finds that the service-connected PTSD did not cause the Veteran to use tobacco products after service. As the first criterion is not established, an assessment of the second and third criteria is not required, and thus, is moot. Even though the directive, as indicted above, is silent on the issue of whether a service-connected disability that causes an increased use of tobacco after service establishes service connection, given the appellant’s assertions, as noted above, the Board finds that it need not determine this issue as there is no evidence that the Veteran’s use of tobacco/cigarettes increased after his active service in the Persian Gulf. As a matter of fact, post-service treatment records expressly reflect that the Veteran reported smoking more than ½ a pack of cigarettes per day for more than twenty years. See e.g. May 1999 Ambulatory Outpatient Care Note; see also May 2000 Ambulatory Outpatient Note; see too, August 2000 Progress Note. Thus, the medical evidence clearly indicates that the Veteran smoked the same amount of cigarettes before and after his deployment to the Persian Gulf. Moreover, as noted by the August 2020 examiner, smoking is a willful act that one chooses to do or not to do. (Continued on the next page)   Overall, after a review of all probative evidence, including the August 2020 VA opinion, medical treatment records, and additionally, taking all lay statements of the Veteran, the appellant, and the Veteran’s daughter into account, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s PTSD resulted in the Veteran’s long-standing history of tobacco/cigarette consumption, which in turn led to lung cancer, thereby resulting in the underlying cause of the Veteran’s death. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Additionally, the probative evidence does not show that any of the Veteran’s service-connected disabilities are related to respiratory failure, lung cancer, and/or sepsis, as the immediate or underlying cause of the Veteran’s death. Although the Board is extremely grateful for the Veteran’s Honorable service, there is no legal basis to grant this claim Therefore, service connection for cause of the Veteran’s death is denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.