Citation Nr: 21040176 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 11-29 420 DATE: July 2, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in February 1991. 2. The Veteran's death certificate reports that the cause of death was metastatic colon cancer. 3. At the time of the Veteran's death service connection was in effect for high frequency hearing loss, diverticulum of the duodenum with deformed bulb, and residuals of fracture, right lateral, and posterior malleolus. 4. The Veteran's cause of death is not attributable to service, to include exposure to herbicide agents. 5. The Veteran's service-connected conditions were not contributing factors to his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1310, 5103, 5103A (2018); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1948 to June 1950, September 1950 to July 1957, and from October 1957 to February 1969. The Veteran died in February 1991. The appellant is the Veteran's surviving spouse. The appellant's original claim for service connection for the cause of the Veteran's death was denied by the Board of Veterans' Appeals (Board) in September 1993. The instant appeal arises from a July 2009 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). The Board reopened the claim in a November 2016 decision. After lengthy development, this claim was denied by the Board in a February 2019 decision. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and in an Order dated August 2019, the Court granted a Joint Motion for Remand (JMR), vacating the Board decision, and remanding the case to the Board. The claim was remanded by the Board in July 2020. The case returns now for appellate consideration. Entitlement to service connection for the cause of the Veteran's death is denied. 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. 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, and 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154 (a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). I. Principal Cause of Death The Veteran died in February 1991 and the listed cause of death was metastatic colon cancer. See February 1991 Death Certificate. At the time of the Veteran's death service connection was in effect for high frequency hearing loss, diverticulum of the duodenum with deformed bulb, and residuals of fracture, right lateral, and posterior malleolus. The appellant asserts that the Veteran's death was the result of colon CA due either to herbicide agent exposure during service or due to the Veteran's service-connected diverticulum of the duodenum with deformed bulb, which was misdiagnosed irritable bowel syndrome (IBS). For a service-connected disability to be the cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For those conditions not found to be related to service during the Veteran's lifetime, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. a. Presumptive Service Connection Certain chronic diseases, including cancers (malignant tumors) will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran had a diagnosis of colon carcinoma (CA) prior to his death; however, colon CA was not manifested until many years after the Veteran's discharge. The Veteran's January 1991 claim for service connection for colon CA indicates that the CA began July 19, 1990. January 1991 VA Form 21-526, Box 24. The Veteran also indicated that he received treatment during service for colon and liver cancer in 1966-67, explaining that he was "Exposed to agent orange - Vietnam." January 1991 VA Form 21-526, Boxes 28A, 28C. Read sympathetically, the Board finds that the Veteran believed that his colon CA was due to in-service herbicide agent exposure, not that the CA was itself present. The Veteran's medical records dated in July 1990 indicate that the colon CA was discovered in that month. Neither the appellant nor the record raises the possibility that the CA was present during or continuously from service separation to the Veteran's death. On review of the whole record, the Board finds that the Veteran's colon CA was not present in service or for many years thereafter. Presumptive service connection based on chronic disease diagnosed as such in-service, manifest within one year of separation from service, or based on continuous symptomatology since separation service is not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b); 3.307(a). The Veteran is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam. See DD214; see also 38 C.F.R. § 3.307(a)(6). However, colon cancer is not a disability for which service connection is warranted on a presumptive basis based upon exposure to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. Thus, even though exposure to herbicide agents is presumed based on the Veteran's service in the Republic of Vietnam, presumptive service connection could not be established for this disability. The appellant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). b. Direct Service Connection The three-element test for service connection requires evidence of: (1)a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); see also Hupp v. Nicholson, 21 Vet. App. 342, 349 (2007) (recognizing the test applies to DIC cases). Service treatment records do not reveal any complaint, diagnosis, or treatment for any colon complaints or cancer and there was no clinical evidence of colon cancer for many years after active service. While a portion of the Veteran's service records are illegible, medical examination in August 1966 showed a normal gastrointestinal system. See August 1966 Medical Examination. Service treatment records do show treatment for gastritis and epigastric pain. In May 1958 the Veteran was treated as an in-patient in service for gastritis for a period of 12 days. See May 1958 Medical Record. On admission, the Veteran was suspected to have a perforated ulcer, however, after treatment the assessment of gastritis, acute, secondary to alcohol intake was made. In December 1971, imaging results were obtained showing "duodenal bulb is deformed but no ulcer crater, diverticulum present in third portion of the duodenum." See December 1971 Medical Record. In a January 1972 examination the Veteran reported nervous stomach trouble since service. The Veteran's bowels moved regularly, and stools had normal form and color. Examination revealed the abdomen to be soft and caphoid in shape. No organs or masses were palpable. There were no areas of tenderness or rigidity. See January 1972 Examination. Statements have been associated with the file regarding the Veteran's stomach problems since service; however, there are no complaints or treatment records indicating any colon disability or cancer within one year of separation from service. VA examiners have not found any indication of any colon condition prior to 1990. Private treatment records dated October 1976 show complaints of nervous stomach, stomach pain, and ulcer. See October 1976 Medical Record. In a treatment note dated in March 1981, the Veteran was noted to be still smoking and he was worried about cancer. See March 1981 Medical Record. The Veteran reported he smoked 1.5 packs per day when was diagnosed with colon carcinoma (CA) in July 1990. An August 1990 medical record noted the Veteran had adenocarcinoma of the rectum with metastasis to the liver and a tobacco abuse disorder. See August 1990 Medical Record. In lay statements dated in October 1991, it was reported that the Veteran was not in good health at the time he retired from the Army. He would not seek medical attention and took over-the-counter medication for his stomach on a regular basis. He continued with stomach medications, both prescription and non-prescription, until his death. He never seemed to feel good and always appeared to be tired and not have energy. He was bothered by arthritis all of his retired life but could not take medication due to his stomach problems. See October 1991 Buddy Statement. These statements do not attest to actual knowledge of colon CA in service or that medical doctors or competent sources attributed the Veteran's colon CA to service. Moreover, the substance of these statements is identical, tending to show that someone prepared the statements for the signatories, not that these statements are their independent observations of the Veteran. The reports of diarrhea are discussed below as part of the medical opinions regarding the presence of irritable bowel syndrome (IBD) and diverticulitis. In support of her claim, the appellant has submitted March 2020 and March 2021 opinions from Dr. T.G., M.D. These opinions find that the Veteran's gastrointestinal disabilities were misdiagnosed, that he actually manifested IBD, and that IBD was manifest in service and resulted in colon CA. In his March 2021 opinion, Dr. T.G. noted that the Veteran's alcohol and smoking tobacco increased his risk for IBD and his IBD caused his CA. See March 2020 Opinion; see also March 2021 Opinion. Dr. T.G. also contended that the Veteran's treatment for gastritis in service was incorrectly assessed in May 1958, and opined that gastritis would not have accounted for the clinical finding of rebound tenderness and diffuse abdominal tenderness because gastritis would only cause epigastric pain, rather than diffuse abdominal tenderness. The Board found the March 2020 opinion did not adequate support its conclusions and remanded this case for another opinion in July 2020. In November 2020, VA obtained an opinion addressing the Veteran's gastric complaints, the appellant's arguments, and the March 2020 opinion from Dr. T.G. that the Veteran manifested IBD in service that resulted in colon CA. See November 2020 Opinion. This examiner acknowledged the Veteran's medical history of gastric complaints and noted that his gastrointestinal system was normal in December 1971 and he had a history of peptic ulcer noted in October 1988. The examiner noted that the Veteran's diverticulum of the duodenal bulb and gastritis, diagnosed in January 1972, may have been present in service and could have accounted for the Veteran's symptoms of abdominal distress following consumption of alcohol and coffee. The examiner also noted that the Veteran's clinical picture was less consistent with Dr. T.G.'s asserted diagnosis of IBD and more consistent with the Veteran's medical history of gastritis and diverticulitis. The Board has reviewed the records created during the Veteran's lifetime and no diagnosis of IBD was offered while the Veteran was available for clinical examination, even when undergoing evaluation for his colon cancer which affects the same organ as IBD. This finding weighs against Dr. T.G.'s opinion the Veteran manifested IBD in service that caused his colon CA. The November 2020 examiner ultimately found the most likely etiology of the Veteran's colon CA was his 1.5 pack a day smoking history. The examiner noted there was no medical evidence that colon CA is associated with exposure to herbicide agents or associated with a medical history of gastritis or diverticulitis. The examiner noted that while the Veteran had gastritis and diverticulitis, these diseases are not indicative of colon CA being present in service or within one year of discharge and they are not recognized risk factors for development of colon CA. The November 2020 examiner noted relevant risk factors for colon CA as regular activity, diet, obesity, alcohol, and tobacco. The Board acknowledges that the appellant has indicated that she believes that the Veteran's death is related to his service. However, although lay persons are competent to provide opinions on some medical issues, the cause of the Veteran's death is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). After reviewing the record, the VA November 2020 examiner rendered an opinion that accurately acknowledges the Veteran's medical history as directed by the August 2019 JMR. The examiner found the Veteran's colon cancer was not related to the Veteran's in-service gastritis and epigastric pain, or the credible, post service reports of stomach pain since service. The examiner also found the Veteran's colon cancer was not related to any service-connected disability, including diverticulum of the duodenum with deformed bulb or to his presumed exposure to herbicide. The Board assigns more probative value to the November 2020 opinion than the opinions from Dr. T.G. While both opinions contain rationale, the November 2020 opinion and rationale hews more closely to the medical record for the Veteran and provides a well-supported etiological opinion with discussion of medically recognized risk factors. In contrast, the opinion from Dr. T.G. rests on a previously undiagnosed disability, IBD, and asserts a relationship between IBD and colon CA that is not well-supported. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). The risk factors of alcohol and tobacco use were also cited by Dr. T.G. as potential causes for his colon CA and this finding is consistent with the November 2020 opinion. The appellant asserts that the VA medical opinions and examination reports are inadequate for rating purposes in her March 2021 brief. She also lodges a "challenge" to the qualifications of the VA examiners. These assertions are mere boilerplate and offers no material argument with reference to the opinions in question that would explain why she finds the opinions inadequate. Similarly, there is no substance to the "challenge" to the examiners' qualifications. These boilerplate arguments also "raise concerns" with the conduct of the Board hearing even though no such hearing occurred in this case. Appeals to the Board should set out specific allegations of error fact or law, such allegations being related to specific items. 38 U.S.C. § 7105(d)(3); Scott v. McDonald, 789 F.3d 1375, 1378-79 n.2 (Fed. Cir. 2015); 38 C.F.R. § 20.202 (2018) The appellant's attorney is reminded that the "nonadversarial" nature of the veterans benefits system does not relieve him of his ethical duty to zealously represent his client. See 38 C.F.R. § 14.632(b)(2) (2020) (requiring those representing claimants before the Department to act with reasonable diligence and promptness in presenting claims). This case has been pending before the Department for more than a decade and submission of perfunctory boilerplate is of no utility to the appellant. The appellant has also submitted a June 1991 opinion from a private provider that they reviewed the Veteran's file and indicated that they did not know the relationship between Agent Orange and colon cancer. The provider noted that if there is a definite relationship between Agent Orange and colorectal cancer, then the Veteran should have been service-connected for the illness. See June 1991 Medical Record. Here, the Board finds the June 1991 opinion that "if there is a definite relationship between Agent Orange and colorectal cancer, then the Veteran should be service-connected" is too speculative to constitute a medical nexus. See Bloom v. West, 12 Vet. App. 185, (1999). Further, the November 2020 VA examiner has rendered the opinion that there is no medical evidence in the medical literature confirming any relationship between exposure to Agent Orange and the development of colon cancer and the most likely etiology for his colon carcinoma was his history of tobacco smoking. The Board attributes more probative value to the November 2020 opinion based on the persuasive rationale and discussion of the Veteran's medical history and risk factors. Nieves-Rodriguez, 22 Vet. App. at 295. Finally, although the Veteran used tobacco products during service, this cannot form the basis for an award of benefits. The instant appeal arises from a March 2009 claim for benefits. For claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. 38 C.F.R. § 3.300(a). The rule does not prohibit compensation for death resulting from a disease otherwise shown to have been incurred or aggravated during service, which the Board has discussed above. 38 C.F.R. § 3.300(b). Accordingly, the preponderance of the evidence indicates the Veteran's cause of death was not manifested during active service or within one year of separation from service, and it has not otherwise been shown to be related to active service, to include exposure to herbicide agents. As such, entitlement to service connection for the cause of the Veteran's death is not warranted. II. Contributory Cause of Death The Board has also considered whether the Veteran's service-connected disabilities may be found to have contributed to his death. As noted above, the Veteran was service connected for high frequency hearing loss, diverticulum of the duodenum with deformed bulb, and residuals of fracture, right lateral, and posterior malleolus. None of these were listed as contributory on his certificate of death but may nevertheless be found to have contributed to the Veteran's death. A 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; and 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). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312 (c) (2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312 (c)(3). The appellant does not argue, and the record does not suggest, that the Veteran's diverticulum of the duodenum with deformed bulb contributed substantially or materially to the Veteran's death. See March 2021 Brief. Instead, the appellant argues that this condition was misdiagnosed and caused the colon CA, as discussed above. Having rejected that argument, the Board finds no indication that the duodenal diverticulum otherwise effected the course of the Veteran's colon CA in any way. Instead, the Veteran appears to not have had significant symptoms resulting from the duodenal disorder. The Veteran was seen on July 18, 1990, complaining of lower abdominal pain, intermittent cramping, and some loose stools. The initial impression with diverticulitis. Following work-up and colonoscopy, the colon CA was discovered. An August 2, 1990, new patient summary by M.M., M.D., reviewed all of the Veteran's then-current problems and did not indicate the presence of the duodenal disorder. An August 3, 1990, summary from T.M., M.D., described the Veteran's past medical history and did not mention the duodenal disorder or any other gastrointestinal disorder apart from the cancer. The initial impression of diverticulitis was abandoned from that point forward. The Board has considered the appellant's contention that the Veteran would not complain or put his needs first. October 1991 correspondence. The appellant's October 1991 substantive appeal indicates her belief that he suffered from stomach problems, diarrhea, arthritis, and chronic fatigue for which he did not seek medical attention as he should have. She also asserted that the Veteran had not been in good health from the date of his retirement from active duty. The Board finds these assertions too general to be of probative value. The Veteran was not in receipt of service connection for diarrhea, general arthritis, or chronic fatigue. The statements do not explain how the Veteran's colon cancer was in any way related to service, or how the Veteran's service-connected disabilities had any impact on the course of his colon cancer, hastening his death. The Veteran's high frequency hearing loss and residuals of fracture, right lateral, and posterior malleolus are not mentioned as having any effect on the course of his fatal colon CA nor has the appellant argued that they contributed substantially or materially to the Veteran's death. The right lateral and posterior malleolus fracture residuals are skeletal in nature and do not affect vital organs. 38 C.F.R. § 3.312(c)(3). The Board finds that these disabilities did not contribute to the cause of the Veteran's death. The Board is grateful for the Veteran's two decades honorable service, and the adverse decision herein is in no way meant to detract from that service. The Board is constrained by law, however, and there is no basis on which to award the benefits sought. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.