Citation Nr: 21041800 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 14-39 391 DATE: July 10, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. The Veteran's immediate cause of death was colon cancer with metastases with renal failure and cerebral vascular disease significantly contributing to his death. 2. The Veteran's residuals of a compression fracture of the T-12 spinal segment was the only service-connected disability during his lifetime. 3. The Veteran's service-connected residuals of a compression fracture of the T-12 spinal segment did not cause or contribute substantially or materially to his death. 4. The Veteran was not exposed to ionizing radiation or herbicide agents, including Agent Orange, during his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1310, 1311; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.311, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1956 to June 1959. He died in November 2010. The appellant was the Veteran's surviving spouse at the time of his death. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Agency of Original Jurisdiction (AOJ) for the appellant's claim is the RO in St. Louis, Missouri. The appellant testified before the undersigned Veterans Law Judge (VLJ) via videoconference during an October 2017 Board hearing. A transcript of the hearing is included in the claims file. The Board issued a decision in March 2018 denying the claim. The matter was appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2020 Memorandum Decision, the Court found the Board clearly erred in relying on an October 2014 VA examiner's inadequate opinion. The Court found the opinion was inadequate because the examiner focused solely on whether the Veteran's service-connected back injury caused his fatal colon cancer and failed to address the Veteran's surviving wife's stated theory of service connection. Namely, the VA examiner failed to address whether the Veteran's service-connected condition would have a material influence in accelerating death, not just whether the service-connected back injury caused colon cancer. The Court set aside the portion of the March 2018 Board decision denying service connection for the Veteran's cause of death, and remanded the matter for further development. In March 2021, the Board remanded the matter to obtain an adequate opinion, consistent with the Court's directives. This opinion was provided later in March 2021. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The appellant filed a claim in December 2012 seeking entitlement to service connection for the cause of the Veteran's death. Specifically, in multiple statements throughout the appeal, including in January 2013, she contended that the Veteran's service-connected back disability of a compression fracture of the T-12 spinal segment caused or substantially contributed to his death because the Veteran was "deformed" at the time of his death, which caused his cerebral vascular disease, and this disability put pressure on his kidneys, which caused his renal failure. Additionally, during the October 2017 Board hearing, the appellant and her representative testified that the Veteran's colon cancer was caused by in-service exposure to herbicide agents, including Agent Orange, and ionizing radiation. A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive DIC benefits. 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 deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As a general matter, 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. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a [claimant] 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection can be established through application of statutory presumptions, to include those diseases associated with exposure to certain herbicide agents, including Agent Orange, and exposure to certain types of radiation while in service. See 38 C.F.R. § 3.309(d), (e). Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases 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. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. However, where the evidence does not warrant presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. See Combee, 34 F.3d at 1043. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an award of service connection for the Veteran's cause of death. The reasons follow. The Veteran's death certificate showed that he died in November 2010. The immediate cause of death was colon cancer with metastases, with renal failure and cerebral vascular disease significantly contributing to his death but not resulting in the underlying cause. At the time of the Veteran's death, he was service connected only for residuals of a compression fracture of the T-12 spinal segment at a rate of 10 percent disabling. Thus, the questions to be answered are whether the Veteran developed colon cancer with metastases, renal failure, or cerebral vascular disease during service or whether one or more of these disorders were causally or otherwise related to his active duty service or related to the service-connected residuals of a compression fracture of the T-12 spinal segment. As indicated by many VA and private medical treatment records from 2010, the Veteran developed colon cancer, renal failure, and cerebral vascular disease many years after separation from active duty service. In fact, the medical evidence does not show that these disorders developed prior to 2009. Additionally, the Veteran's service treatment records are silent for complaints of or treatment for these disorders. The Veteran's April 1959 separation examination shows that the Veteran's vascular, rectal and anal, and genitourinary systems were all normal, and the Veteran denied ever having any symptoms of rupture, piles or rectal disease, tumor, growth, cyst, or cancer, frequent or painful urination, kidney stone or blood in urine, or sugar or albumin in urine in his separation report of medical history. Thus, given the Veteran's denials of these symptoms in service, and the approximately 50-year time gap between separation from active duty service and the development of colon cancer with metastases, renal failure, and cerebral vascular disease, the Board finds that the Veteran did not develop these disorders during active duty service or within one year of separation from active duty service. However, the appellant contended throughout the appeal that the Veteran's service-connected residuals of a compression fracture of the T-12 spinal segment caused or substantially or materially contributed to the Veteran's death. The Board acknowledges the appellant's contentions that the Veteran's death was caused from deformity due to his service-connected residuals of a fracture of the T-12 spinal segment. The appellant is competent to report symptoms that she perceived through her own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, she and her representative are not competent to offer an opinion as to the cause of the Veteran's death in this case due to the medical complexity of the matters involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Colon cancer with metastases, renal failure, and cerebral vascular disease require specialized training for a determination as to diagnosis, causation, and progression, and are therefore not susceptible to lay opinions on causation or aggravation. Thus, the appellant is not competent to render an opinion or attempt to present lay assertions to establish the causation of the diseases that immediately or significantly contributed to the Veteran's death. In the aforementioned October 2014 medical opinion, the examiner stated that the Veteran's service-connected residuals of compression fracture of the spine did not cause or contribute to the Veteran's death. He explained that based on information in the medical literature, the thoracic spine compression fracture and the resulting angulation of the spine could not predispose someone to develop colon cancer. This opinion is probative, specifically as it relates to colon cancer contributing to the Veteran's death, as the opinion was provided by a medical expert who reviewed the evidence of record and provided a reasoned rationale for his conclusion. However, the October 2014 examiner did not address whether the service-connected residuals of a compression fracture of T-12 contributed to the other causes of the Veteran's death, namely renal failure and/or cerebral vascular disease, the two conditions included in the death certificate as other significant conditions contributing to death but not resulting in the underlying cause given. Subsequent to the March 2021 Board remand, a separate VA practitioner reviewed the claims file and provided an opinion that it was less likely than not that the Veteran's service-connected residuals of a compression fracture of the spine contributed to the Veteran's death or had a material influence in accelerating his death in relation to renal failure and/or cerebral vascular disease. In her rationale, the examiner stated that the Veteran's service treatment records are silent for complaints of, diagnoses, or treatment for renal failure and cerebral vascular disease. She stated that these conditions did not manifest until 2009 to 2010, which was 50 years after the Veteran's service discharge. The examiner summarized the Veteran's in-service treatment for a spine injury, but noted that the Veteran was eventually returned to duty and that his separation examination the following month was silent for back complaints. She stated that the Veteran's service-connected condition did not cause or contribute to the development of renal failure and cerebral vascular disease. The examiner wrote that, in reviewing the medical literature, deformity from compression fracture of the thoracic spine does not affect the function of the kidneys or the cerebrovascular system, and that kidney and cerebrovascular conditions are not listed as complications or sequelae of thoracic compression fractures. The examiner concluded that, despite a commonly held belief that a back injury leads to chronic pain and disability, after sustaining a thoracic or lumbar fracture, patients are generally able to return to work and have a comparable quality of life to the general population. The Board finds the March 2021 opinion to be high probative, as it was rendered by a medical professional who was able to review the evidence of record and provided a detailed rationale for her conclusions, which was based upon medical principles and included references to relevant specialized medical literature. While the 2014 and 2021 examiners did not specifically address whether any of the disabilities causing death were aggravated by the service-connected disability, the Board finds that the VA opinions in this matter are distinguishable from the holding in El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In that case, the Court found that the examiner's opinion that it was "more likely than not that the veteran's alcohol abuse was related to factors other than the veteran's post-traumatic stress disorder" did not rule out the possibility that the veteran's service-connected PTSD aggravated his alcohol abuse to some degree. Id. In contrast, here, the March 2021 opinion states that "deformity from compression fraction of the thoracic spine does not affect the function of the kidney or cerebrovascular system." The lack of cause-and-effect relationship would encompass a secondary theory of service connection and preclude aggravation resulting from the Veteran's service-connected disability. Similarly, the October 2014 examiner stated that the Veteran's service-connected disability, with a high degree of medical certainty, did not cause or substantially contribute to the Veteran's cause of death," which the Board finds to encompass any material aggravation. Because the practitioners clearly opined that there was no relationship between the causes of death and the Veteran's service-connected disability, the October 2014 and March 2021 statements, unlike that of the examiner in El-Amin, rules out the possibility that the service-connected disability may aggravate to some degree the non-service-connected causes of death. The appellant and her representative further contended during the October 2017 Board hearing that the Veteran's colon cancer was caused by his exposure to Agent Orange and ionizing radiation while in service. Specifically, they testified that the Veteran told the appellant that he was stationed in New York during active duty. The representative contended that the Veteran could have come into contact with Agent Orange, which was used and stored at Fort Drum in New York in 1959. See https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/usa.asp#NewYork (noting that 13 drums were sprayed on four square miles from a helicopter spray device at Fort Drum, New York, in 1959). However, the Veteran's service treatment and personnel records show that he was stationed in New York from May 7, 1957, to August 7, 1958. The service records document that he was stationed at Fort Benning, Georgia, in 1959, where herbicide agents, including Agent Orange, were not stored or used at the time. Additionally, the appellant's representative asserted during the October 2017 Board hearing that the Veteran told the appellant that he was stationed in Las Vegas, Nevada during his active duty service, where he was exposed to ionizing radiation. They contended that the Veteran's exposure to ionizing radiation in service caused his colon cancer. However, a thorough review of the Veteran's service treatment and personnel records does not show that the Veteran was stationed in Nevada during his active duty service. As noted above, these records show that he was stationed in New York and Georgia. Thus, although the Board is sympathetic to the appellant's belief that the Veteran's colon cancer was caused by his active duty service, the Board must find that the Veteran was not exposed to ionizing radiation or herbicide agents, including Agent Orange, during his active duty service. For the reasons discussed herein, the weight of the evidence is against a finding that a service-connected disability caused or contributed to the Veteran's death. The Veteran did not develop the causes of death listed on the death certificate, including colon cancer, renal failure, and cerebral vascular disease, until approximately 50 years after his separation from service. The Veteran's service treatment records are absent of any mention of these conditions. The 2014 and 2021 VA examiners explained why it is less likely than not that the Veteran's service-connected residuals of a compression fracture in the thoracic spine contributed to the Veteran's death or had a material influence in accelerating his death. At the present time, there is no competent evidence of record that has related the Veteran's service-connected disability to the causes of death listed on the Veteran's death certificate to weigh against the 2014 and 2021 VA opinions. Therefore, as the preponderance of the evidence is against entitlement to service connection for the cause of the Veteran's death, the benefit of the doubt doctrine does not apply, and the appellant's claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.