BVA9504962 DOCKET NO. 92-14 753 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran served on active duty from October 1942 to September 1945. This appeal arises from a November 1990 rating decision of the Albuquerque, New Mexico, Regional Office (RO). In that decision, the RO denied service connection for the veteran's cause of death. CONTENTIONS OF APPELLANT ON APPEAL The appellant, the veteran's widow, contends that service connection is warranted for the veteran's cause of death. She contends that the numerous x-rays that the veteran had in service, in the course of treatment for tuberculosis, combined with exposure to asbestos, caused the veteran to have lung problems and cancer. She also contends that the medication the veteran took for his service-connected lung disability caused him to die sooner. The appellant also contends that the veteran's tuberculosis, which was active for several years, weakened his lungs and made him less capable of resisting the condition that resulted in his death. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against entitlement to service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the originating agency. 2. The veteran was treated for active tuberculosis from 1945 to 1949, with subsequent follow-up for inactive tuberculosis. 3. The veteran had malignant lymphoma from 1963 until his death. 4. The veteran died in April 1978, of disseminated intravascular coagulation from pseudomonas sepsis, due to adult respiratory distress syndrome with extensive interstitial pneumonitis and fibrosis; he had diffuse Stage IV malignant lymphoma. 5. Radiation from chest x-rays in the course of tuberculosis treatment did not cause the veteran's lymphoma. 6. Exposure to asbestos, if it occurred, did not cause the veteran's lymphoma. 7. Residual effects of the veteran's tuberculosis did not affect the course of the illnesses that led to the veteran's death. CONCLUSIONS OF LAW 1. The veteran's service-connected tuberculosis did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 2307, 5107 (West 1991); 38 C.F.R. § 3.312 (1994). 2. Radiation from chest x-rays in the course of tuberculosis treatment did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 2307, 5107 (West 1991); 38 C.F.R. § 3.312 (1994). 3. Exposure to asbestos did not cause or contribute substantially or materially to cause the veteran's death; nor was asbestos etiologically related to his death. 38 U.S.C.A. §§ 2307, 5107 (West 1991); 38 C.F.R. § 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). As a well grounded claim has been presented, the Department of Veterans Affairs (VA) has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107 (West 1991). We are satisfied that all relevant facts have been properly developed so that further assistance to the appellant is not required. As part of its efforts to develop the facts relevant to the claim, the Board requested and obtained an independent medical opinion on the case. This opinion, from James A. McFarland, M.D., was received by the Board in January 1995. Although the appellant's representative contends that this additional evidence requires consideration by both the appellant and the Agency of Original Jurisdiction (AOJ) in order to satisfy due process concerns, a precedent opinion by the Office of the General Counsel (O.G.C.) of the Department of Veterans Affairs (VA) provides that "[p]ursuant to statutes and regulations, certain classes of evidence, i.e., independent medical opinions, . . .38 C.F.R. § 20.901(d), and opinions of the Chief Medical Director, the General Counsel, and the [AFIP] . . ., 38 C.F.R. § 20.901(a), (b), and (c), may be considered by the [Board] without reference to the AOJ." O.G.C. Precedent Opinion 16-92 (Jul. 24, 1992). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 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 a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but, rather, there must have been a causal connection. 38 C.F.R. § 3.312 (1994). The veteran died in 1978. The certificate of death listed the cause of death as disseminated intravascular coagulation from pseudomonas sepsis, due to adult respiratory distress syndrome with extensive interstitial pneumonitis and fibrosis, suspected due to medication (procarbazine). As other significant conditions, the certificate listed diffuse, mixed cellularity, Stage IV malignant lymphoma, and inactive pulmonary tuberculosis. The veteran served in the Navy from 1942 to 1945. He was treated during service for active tuberculosis, and he continued to receive treatment for tuberculosis after his discharge. Service connection for tuberculosis was established shortly after his separation from service. Over several years following service, the veteran received treatment, including pneumothorax, and follow-up from VA facilities and the New York State Department of Health. In 1949, X-ray findings established that the tuberculosis was arrested and inactive. Follow-up every one or two years from 1950 to 1960 showed that the disease remained inactive. In 1963, the veteran was found to have a tumor on his neck. An operation was performed, and lymphosarcoma was diagnosed. The veteran received treatment, including chemotherapy, for lymphosarcoma over the years that followed, until his death in 1978. In March 1992, the Chief Medical Director (CMD) the VA Compensation and Pension Service provided an opinion on the issue of whether tuberculosis and numerous chest x-rays contributed to the veteran's cause of death. The CMD's opinion noted the number of x-rays the veteran would have been expected to have during his treatment and post-treatment follow-up for tuberculosis, and the total dose of radiation to which the veteran would have been exposed from that number of x-rays. The opinion cited studies regarding association between cancer and radiation exposure. The opinion noted that the dose of radiation to which the veteran was exposed was much lower than doses found to cause no increased incidence of cancer in the cited studies. CMD concluded that it was highly unlikely that the veteran's cancer could be attributed to exposure to ionizing radiation in service. The Board requested an opinion on this case from an independent medical expert. James A. McFarland, M.D., of the University of South Carolina, was asked to review the records in the veteran's claims file, and provide his opinion with respect to the following questions: 1. Did radiation from chest x-rays associated with the diagnosis and treatment of the veteran's tuberculosis cause his lymphoma? 2. Could asbestosis have caused the veteran's lymphoma? 3. What is the relationship, if any, between the veteran's service-connected tuberculosis and his death? In January 1995, Dr. McFarland responded that he had reviewed the case record and pertinent medical literature. Dr. McFarland reported that the clinical circumstances of the veteran's death, including pneumonia, diffuse pulmonary fibrosis, adult respiratory distress syndrome and disseminated intravascular coagulopathy, were events often seen in the later phase of a refractory lymphoma with the cumulative effects of treatment and the accompanying immune deficiency state. Dr. McFarland considered the veteran's exposure to radiation, the current industry standards for annual radiation exposure limits, and studies of radiation exposure, including a study that showed no increase in the incidence of lymphoma in pneumothorax patients. In response to the Board's questions, he concluded: Therefore, in answer to the first question as to whether in my opinion the lymphoma in this case may have been caused by the radiation exposure from chest x-rays and fluoroscopy, I do not think that this total exposure reached a level that would have been a causative factor. In reference to the second question as to whether the asbestos exposure may have caused the lymphoma, I know no information or literature that relates lymphoma to asbestos. Finally[,] in reference to the question as to whether the pulmonary tuberculosis and the changes it caused in the lungs were a factor in the outcome of the patient[']s illness, I do not think the relatively mild changes related to the tuberculosis had any impact on the patient[']s ability to handle the final illnesses. The diffuse pulmonary fibrosis may have played a part in some degree of loss of pulmonary compliance, but this change was much more likely related to the therapy for the lymphoma and in any case would not have altered the outcome of the devastating final events as described. Dr. McFarland is associated with the Division of Hematology and Oncology of the University of South Carolina School of Medicine. He reviewed the veteran's medical records, and considered medical literature, studies, and standards. We find that his opinion is based on thorough analysis, and that his reasoning is clearly explained and credible. Dr. McFarland concluded that neither radiation from chest x-rays nor exposure to asbestos caused the veteran's lymphoma. He also concluded that the effects of tuberculosis on the veteran's lungs did not effect the veteran's ability to resist the illnesses that led to his death. The appellant has raised the question of links between the veteran's service-connected tuberculosis and his cancer-related death. We find that her lay assertions are outweighed by Dr. McFarland's medical analysis that no such causal links operated in this case. The preponderance of the evidence is against the appellant's claim for service connection of the veteran's cause of death. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107 (West 1991). ORDER Entitlement to service connection for the cause of the veteran's death is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.