Citation Nr: 21029713 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 14-03 527 DATE: May 14, 2021 ORDER Service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran's certificate of death shows that he died in June 2009, and the immediate cause of death was chronic obstructive pulmonary disease (COPD); no other principal or contributory causes of death were listed. 2. At the time of the Veteran's death, service connection had not been established for any disability. 3. A disability of service origin did not cause or contribute to the Veteran's 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. §§ 1101, 1110, 1112, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1944 to November 1946. He died in June 2009 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2010 by a Department of Veterans Affairs (VA) Regional Office. In April 2018, the Board remanded the case for additional development and, in May 2019, denied service connection for cause of death. The appellant subsequently appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted the appellant's and the Secretary of VA's (the parties') Joint Motion for Remand (JMR), which vacated the May 2019 Board decision and remanded the matter for further consideration. In September 2020, the Board again remanded the case for additional development, to include obtaining VA and private treatment records as well as a new opinion. Thereafter, the Agency of Original Jurisdiction obtained the identified VA treatment records and, while the appellant was requested to submit or authorize VA to obtain the Veteran's private treatment records from Crestmont Nursing Home, McLaren Regional Medical Center, Beaumont Hospital, Grand Blanc Hospital, and Fenton Hospital in September 2020, she only provided blank authorization forms in October 2020. Thus, later that month, she was again requested to submit or authorize VA to obtain such records. In November 2020, the appellant submitted records from McLaren Regional Medical Center and Colon Rectal Specialists, and, in January 2021, additional records were obtained directly from the former facility. While the appellant also submitted an authorization form for Crestmont Nursing Home, she provided incomplete information for such facility, and she did not provide authorization forms for any other facility. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam) (if a claimant wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence). Furthermore, the requested opinion was obtained in December 2020. Thus, the Board finds that there has been substantial compliance with the September 2020 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); 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 (2002). The case now returns for further appellate review. Entitlement to service connection for the cause of the Veteran's death, to include as due to exposure to ionizing radiation. The appellant contends that the Veteran's cause of death is related to his exposure to ionizing radiation while serving in Japan in 1946. In statements of record, including those in May 2011, January 2014, and August 2017, she further alleged that service connection was warranted because the Veteran's colon cancer, which is acknowledged to be presumptively related to exposure to ionizing radiation, contributed materially and substantially to the cause of his death. Service connection for the cause of a veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of the veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially; combined to cause death; aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service-connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). The list of diseases includes colon cancer, but not COPD or cancer of the rectum, prostate, or skin. Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 if the condition at issue is a radiogenic disease. While cancers of the skin, colon, rectum, and prostate are considered radiogenic diseases, COPD is not such a disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(i), (ii). In the instant case, the evidence of record confirms that the Veteran was a radiation-exposed veteran because he participated in the occupation of Hiroshima, Japan in May 1946, which is classified as a radiation-risk activity. See 38 C.F.R. § 3.309(d)(3)(i), (ii)(B)). Specifically, in an July 2010 Defense Threat Reduction Agency (DTRA) Memorandum, VA acknowledged that U.S. Army records confirm that he was a member of the American occupation forces in Japan following World War II and, while serving with the "G" Company, 19th Infantry Regiment, he was present in the VA-defined Hiroshima area from May 26, 1946, to May 27, 1946. Thus, while his colon cancer may be presumptively related to his in-service radiation exposure, the evidence still must show that such was a principal or contributory cause of his death so as to warrant service connection in the instant case. If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). In a case where, as here, the claimed condition has not been designated a radiogenic disease by VA, if the Veteran cites or submits "competent scientific or medical evidence" that the claimed condition is a radiogenic disease, VA will still consider the claim. 38 C.F.R. § 3.311(b)(5). However, if the three requirements of § 3.311(b)(1) have not been met, "it shall not be determined that a disease has resulted from exposure to ionizing radiation under such circumstances." § 3.311(b)(1)(iii). Here, the appellant has not cited or submitted competent scientific or medical evidence that COPD is a radiogenic disease and, thus, further consideration of such provisions in regard to such disease is not warranted. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran died in June 2009 and his certificate of death lists COPD as the immediate cause of death, but no other principal or contributory causes of death were noted. At the time of his death, service connection had not been established for any disability. Nonetheless, service connection for the cause of the Veteran's death may still be established if it is shown that a disability of service origin caused or contributed to his death. In this regard, the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of COPD. Furthermore, such disorder was not diagnosed for many years after service. Rather, in March 1998, it was noted that he had COPD with no convincing evidence of active pulmonary process or congestive failure. In February 2001, the Veteran reported that he had smoked for 40 years and had several cigars a day for most of his life. He indicated that he quit smoking in November 2000. The Veteran's chest X-ray was consistent with COPD, it was noted that he had a significant amount of emphysema, and pulmonary function tests demonstrated a mild to moderate obstructive lung disease. In February 2002, COPD and mild early congestive heart failure were noted. In April 2008, the Veteran was admitted with an acute episode of dyspnea and was felt to have an exacerbation of congestive heart failure and a history of COPD, and, in March 2009, he was found to be in atrial fibrillation, acute renal failure, hypertension, hypothyroidism, peripheral vascular disease, and COPD exacerbation and, as noted previously, he died in June 2009. There is also no medical opinion of record that relates the Veteran's COPD to any instance of his military service. Thus, as the evidence does not show that his COPD is related to his military service, to include as a result of exposure to ionizing radiation, service connection for the cause of his death on such basis is not warranted. With respect to whether a radiogenic disease, to include prostate, rectal, and skin cancers, was a principal or contributory cause of the Veteran's death, in August 2010, VA obtained a medical opinion from the VA Director of Radiation and Physical Exposures (RPE). Using the factors outlined by the Interactive Radio-epidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's aforementioned cancers, the program calculated a 99th percent value for the probability of causation of 0.03% for such cancers. On that basis, in an August 2010 memorandum, the Director of RPE opined that it is unlikely that the Veteran's prostate cancer, rectal cancer, basal cell carcinomas and/or squamous cell carcinomas can be attributed to ionizing radiation exposure while in military service. Upon review of the record and the medical opinion from the Director of RPE, the Board concludes that, as the probative evidence is against a finding that the Veteran's various cancers were due to exposure to ionizing radiation during service, service connection for the cause of the Veteran's death on that basis is not warranted. However, as noted previously, the appellant has primarily contended that the Veteran's colon cancer, which is presumptively related to his in-service ionizing radiation, caused or contributed to his cause of death. In this regard, in January 2010, Dr. H, a private physician, stated that the Veteran's colon cancer surgery and ongoing surgical morbidity may have contributed to his mortality. He noted the Veteran had had pre-op radiation chemotherapy and subsequent abdominoperineal resection for aggressive colon cancer, that the final pathology was stage II and that the Veteran had some chronic stoma issues secondary to his body habits. The Board finds that the January 2010 private physician's opinion is speculative and is not supported by an adequate rationale for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor's statement that a veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative). Accordingly, the Board affords the January 2010 opinion no probative weight. While the Board had obtained an opinion addressing whether the Veteran's colon cancer was the principal or contributory cause of his death in September 2017, the parties to the JMR found that such opinion was inadequate to decide the claim based, in part, on the examiner's failure to consider a May 2005treatment record indicating that the Veteran was admitted for malignant neoplasms of the colon with additional diagnostic testing due to his clinical history of re-staging colorectal cancer. Thus, such will not be further considered or addressed. Additionally, in light of the inadequacies detailed in the JMR, the Board remanded the case in September 2020 in order to obtain another opinion addressing such matter. In December 2020, a VA examiner reviewed the record, to specifically include the May 2005 private treatment record noting the need for imaging to restage the Veteran's colorectal cancer, and relevant medical literature, and opined that it is less likely than not that the Veteran's colon cancer was the principal or contributory cause of his death. In this regard, he indicated that there is no evidence in the Veteran's treatment records that he had any recurrence of his 2001 colorectal cancer, any new colorectal cancers, or any metastatic colorectal cancer that in any way caused or contributed to his death. The examiner further noted that the Veteran's death certificate states that he died as a result of COPD, and there was no mention of colon cancer playing any role in his death. Furthermore, he observed that the Veteran had a large rectal cancer treated by pre-op radiation/chemotherapy and a subsequent AP resection in 2001, which successfully resected the cancer with negative margins. A February 2002 coloscopy did not show any recurrence of the rectal cancer and, while such revealed polyps and the Veteran had a large adenomatous hepatic flexure polyp removed via subtotal colectomy in April 2002, no cancer was found at the time of the surgery. With respect to the May 2005 treatment record, the examiner noted that the Veteran had a PET/CT fused imaging scan based on indication for restaging colorectal cancer. The scan showed intense FDG activity at the lower central pelvis at the level of the pubic symphysis with associated 1.5cm by 3.1cm localized fluid collection and hypodensity on the CT portion of the exam. However, the Veteran was subsequently found to have a suture granuloma and abdominal wall sinus tract and, in September 2005, he underwent an excision of the suture granuloma with sinus tract. In regard to Dr. H's January 2010 opinion, the examiner observed that the Veteran's treatment records did not support a finding that his colon cancer surgery and ongoing surgical morbidity contributed to his death. Specifically, he noted that the Veteran had a rocky post-operative course at the time of his rectal cancer surgery, needed a surgical repair of an early post-operative hernia in March 2001 and a subsequent subtotal colectomy in 2002 for removal of a large polyp. He also developed a suture granuloma and sinus tract in 2005 that required resection. However, records did not show that he had subsequent issues with surgical morbidity related to his rectal cancer surgery or subtotal colectomy, or that such conditions caused or contributed to his death in 2009. In contrast, the Veteran's records did indicate that he had multiple significant comorbidities, including moderate to severe COPD, congestive heart failure, and atrial fibrillation, and he required admission in March 2009 for hypoxemia and cyanosis with a COPD exacerbation, atrial fibrillation, acute renal failure, development of an encephalopathy, urinary tract infection, and severe tricuspid regurgitation. The examiner indicated that none of the foregoing conditions were related to his past history of rectal cancer or subsequent colon polyp resection or sinus tract resection in 2005. The Board affords great probative weight to the December 2020 VA examiner's opinion, as such considered all of the pertinent evidence of record, to include the lay statements of record and the relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez, supra; Stefl, supra. The Board has considered the appellant's assertions that a disability of service origin was a principal or contributory cause of the Veteran's death; however, as a lay person, she does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the question of whether a specific disorder or disease process caused or contributed to an individual's cause of death involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the appellant's opinion to the cause of the Veteran's death is not competent evidence and, consequently, is afforded no probative weight. Based on the foregoing, the Board finds that a disability of service origin did not cause or contribute to the Veteran's death. Consequently, service connection for the cause of his death is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal and the claim for service connection for the cause of the Veteran's death must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.