Citation Nr: 0001805 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 89-11 957A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and Steven A. Madden, M.D. ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from February 1951 to January 1959 and from April 1959 to May 1971. He died on June [redacted], 1988. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) following an August 1988 decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. FINDINGS OF FACT 1. The veteran likely acquired nicotine dependence during military service. 2. Nicotine dependence caused the veteran's use of tobacco products which in turn contributed substantially to his death. CONCLUSION OF LAW Service connection is warranted for the cause of the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1131, 1310, 1311 (West 1991); 38 C.F.R. §§ 3.303, 3.310, 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that service connection for the cause of the veteran's death is warranted. She asserts that the veteran's chronic squamous cell carcinoma of the head and neck, which eventually caused his death, was brought about by exposure to herbicides while serving in the Republic of Vietnam. It is also alleged that the veteran's service- connected PTSD contributed substantially to the veteran's demise because it adversely affected treatment of the fatal disease process. Alternatively, the appellant maintains that the veteran became nicotine dependent while in military service, that this dependence caused him to continue to use tobacco products after service, and that the use of tobacco products caused chronic squamous cell carcinoma of the head and neck which in turn led to his death. It is also requested that the appellant be afforded the benefit of the doubt. Death is deemed to have been caused by a service-connected disability when the evidence establishes that a service- connected disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability is deemed to have been the principal cause of death when it, alone or jointly with another disorder, was the underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). When finding that a service- connected disability was a contributory cause of death, it must be shown that the disability contributed substantially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). The Facts The veteran's death certificate shows that the immediate cause of his death was metastatic head and neck cancer. No other conditions were listed as contributing to the veteran's death. Service medical records (including enlistment, reenlistment, and retirement examinations dated in February 1951, February 1955, January 1959, April 1959, February 1961, February 1967, January 1969, and March 1971) show no complaints, diagnoses, and/or treatment for cancer. Interestingly, October 1955 treatment records show the veteran's complaints, diagnoses, and/or treatment for a skin rash and February 1960 and July 1969 narrative summaries indicate that the veteran smoked cigarettes (approximately one and a half to two packs a day). Voluminous post-service VA and private treatment records dated from November 1971 to June 1988, VA examination reports dated in November 1986 and January 1987, and letters from VA and private physicians, dated from July 1985 to January 1988, were received by the RO. These records show the veteran's complaints, diagnoses, and/or treatment for chronic squamous cell carcinoma of the head and neck starting in 1985. Specifically, in July 1985, the veteran was observed with a lesion on the tongue. The diagnosis was squamous cell carcinoma. Thereafter, the records show the veteran's treatment for squamous cell carcinoma that had metastasized to other areas in the head and neck. In addition, a VA treatment record dated in July 1985 shows that the veteran had a 40-year history of smoking which stopped approximately three years earlier, as well as a three-year history of using chewing tobacco which stopped approximately one month earlier. Similarly, a February 1986 treatment record shows that the veteran had a history of smoking. Moreover, Richland Memorial Hospital treatment records, dated in May 1986 and September 1986, indicate that the veteran had a 40-year history of smoking which ended approximately four years earlier, as well as a history of using chewing tobacco until one year earlier. The appellant and the veteran's physician, Steven A. Madden, M.D., testified at a personal hearing at the RO in September 1989. The appellant testified that she had been married to the veteran for almost thirty-one years - since he was in the Navy. She testified that the veteran worked in sales after service and was not exposed to any chemicals that could have caused his cancer. She testified that the veteran was first diagnosed with cancer in July 1985. The appellant next reported that the veteran first saw a Dr. Mehale for treatment for his cancer and thereafter saw Dr. Madden. Dr. Madden testified that he specialized in oncology. He reported that the veteran was diagnosed with squamous cell cancer and it was originally found on the oral pharynx of the tongue. He also testified that squamous cell cancer was different from soft tissue sarcoma. He reported that, despite numerous surgeries as well as chemotherapy and radiation therapy, the veteran's cancer spread to a number of bones and led to his death. He opined that, given the information he was provided (i.e., the veteran was exposed to Agent Orange in service while spraying it from a backpack he wore), the veteran's cancer could have been caused by his exposure to toxic agents such as Agent Orange. He next testified that, following exposure to a toxic agent, it would take several years for the damage to show up. The doctor next opined that the veteran's alcohol difficulties could very well be related to his PTSD and that alcohol could induce the type of cancer the veteran developed. It was reported that the veteran stopped drinking 15 years prior to his death. Lastly, Dr. Madden opined that stress could cause certain cancers and a poor mental state was not helpful in a patient being treated for cancer. In September 1995, the RO received statements from a long- standing friend of the veteran as well as from the veteran's brother and sister. The statements reported that the first time they recalled the veteran smoking was after his entry into military service. In addition, in a September 1997 statement, the appellant reported that the veteran was first observed to have smoked after returning from boot camp in 1951, he smoked two packs a day, and he stopped using tobacco in 1983. Moreover, she reported that the veteran, before entering military service, worked on a family farm, and after service worked as a truck driver, operated a gutter installation business, and was an instructor at Fort Jackson. In a July 1998 document entitled "Physician Questionnaire," Dr. Madden reported that he had reviewed statements from the appellant, a number of lay statements, the September 1989 personal hearing transcript, treatment records dated in 1985 and 1986, Cancer, Principles and Practice of Oncology, 5th Edition, (pp. 771-772, 779), and the veteran's death certificate. He indicated that he agreed with the statements drafted by the appellant's representative that the veteran started smoking while in military service and became habituated to nicotine while in military service. He also agreed that habituation to nicotine and its use caused the veteran's squamous cell carcinoma, and that squamous cell carcinoma had caused the veteran's death. Thereafter, the appellant testified at a personal hearing at the RO in March 1999. She testified that she first met the veteran in 1956 while he was in military service and remained married to him up until his death in 1988. She next testified that, except for the time the veteran was in the Republic of Vietnam, they were together for the entire period they were married. Moreover, she reported that the veteran smoked continuously from the time she first met him in 1956 until 1983. While the veteran periodically attempted to quit smoking, these attempts only lasted a day or two. She testified that the veteran quit smoking about the same time he was diagnosed with cancer - he stopped smoking less than one year before he was diagnosed with cancer. Analysis First, as to the appellant's argument that the veteran's use of tobacco products while in military service caused his death, the Board notes that the appellant's claim was initially filed in August 1988. Moreover, during the pendency of her appeal, the appellant's representative raised the theory that the veteran's death was caused by the use of tobacco for the first time in a February 1995 statement. Legislation has been passed that directly addresses the appellant's claim. Specifically, the Veterans Benefits Act of 1998, enacted as Subtitle B of Public Law No. 105-178, § 8202, 112 Stat. 492, amended 38 U.S.C.A. §§ 1110 and 1131 to prohibit the payment of VA compensation for disabilities attributable to a veteran's use of tobacco products in service. That legislation was approved on June 9, 1998, and was made effective for all claims filed thereafter. Then, in Public Law No. 105-206, § 9014, 112 Stat. 865, approved on July 22, 1998, the amendments made by section 8202 of the previous statute were rescinded. Rather than amending 38 U.S.C.A. §§ 1110 and 1131, section 9014 created a new 38 U.S.C.A. § 1103 which provides, in pertinent part, as follows: Notwithstanding any other provision of law, a veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service. Thus, new section 1103 bars an award of service connection for a disability arising long after service based upon a finding that such disability was caused by tobacco use during service. It does not, however, preclude the establishment of service connection based upon a finding that a disease or injury (even if tobacco-related) became manifest or was aggravated during active service or became manifest to the requisite degree of disability during any applicable presumptive period specified in 38 U.S.C.A. §§ 1112, 1116. See 38 U.S.C.A. § 1103(b). By its terms, new section 1103 applies only to claims filed after June 9, 1998, and does not affect veterans and survivors currently receiving benefits and veterans and survivors who filed claims on or before June 9, 1998. As noted above, the effective date of 38 U.S.C.A. § 1103 is June 9, 1998, and the appellant's claim was initially filed in August 1988. Therefore, 38 U.S.C.A. § 1103 does not apply, and the claim is governed by the law in effect when the claim was filed. Before June 1998, the statutes and regulations were silent on the specific issue of service connection for disabilities attributable to the use of tobacco products in service. However, two precedent opinions of the VA General Counsel (GC), which the Board is bound to follow pursuant to 38 U.S.C.A. § 7104(c), provide guidance. The first GC opinion, VAOPGCPREC 2-93 (Jan. 13, 1993), together with an explanatory supplement issued by GC on June 3, 1993, provides that service connection may be granted for disease, even though not diagnosed before separation from service, if the evidence of record shows that the disease resulted from the veteran's use of tobacco during service. However, if a post- service disease is caused by post-service smoking, then service connection is not warranted. That is, service connection is not warranted for a disease caused by smoking merely because a veteran began smoking in service unless the evidence also shows that smoking in service, and not smoking before or after service, was the sole cause of the disease. In such a case, a disease caused by the use of tobacco in service is said to have been directly incurred in service. VAOPGCPREC 19-97 (May 13, 1997) noted that service connection is also granted for disability that is proximately caused by a service-connected disorder. See 38 C.F.R. § 3.310(a). Proximate cause is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred. BLACK'S LAW DICTIONARY 1225 (6th ed. 1990). An intervening cause is one that comes between the initial force or cause and the ultimate effect. BLACK'S LAW DICTIONARY 221 (6th ed. 1990). As applied in this context, service connection may be granted for disability proximately caused by another disorder that was incurred in service (i.e., nicotine dependence) due to the use of tobacco in service. In such a case, the disability is said to be secondary to the disorder caused by smoking in service. Moreover, VAOPGCPREC 19-97 reported that the Under Secretary for Health, in a May 5, 1997, memorandum, relying upon the criteria set forth in VAOPGCPREC 67-90 (O.G.C. Prec. 67-90) stated that nicotine dependence may be considered a disease for VA compensation purposes. In addition, the Board notes that nicotine dependence is a mental disorder. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 243 (4th ed. 1994) (DSM- IV). It is a maladaptive pattern of nicotine use leading to significant impairment or distress manifested by three or more of the following criteria at any time in the same twelve-month period: (1) tolerance, as manifested by the absence of nausea, dizziness, and other characteristic symptoms despite use of substantial amounts of nicotine or a diminished effect observed with continued use of the same amount of nicotine-containing products; (2) withdrawal, marked by appearance of four or more of the following signs within twenty-four hours of abrupt cessation of daily nicotine use or reduction in the amount of nicotine used: (a) dysphoric or depressed mood; (b) insomnia; (c) irritability, frustration, or anger; (d) anxiety; (e) difficulty concentrating; (f) restlessness; (g) decreased heart rate; or (h) increased appetite or weight gain; or by use of nicotine or a closely-related substance to relieve or avoid withdrawal symptoms; (3) use of tobacco in larger amounts or over a longer period than was intended; (4) persistent desire or unsuccessful efforts to cut down or control nicotine use; (5) devotion of a great deal of time in activities necessary to obtain (e.g., driving long distances) or use (e.g., chain- smoking) nicotine; (6) relinquishment or reduction of important social, occupational, or recreational activities because of nicotine use (e.g., giving up an activity which occurs in smoking-restricted areas); and (7) continued use of nicotine despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by nicotine. Id. at 181. In addition, DSM-IV, at 180, indicates that sustained full remission is achieved when none of the above criteria for nicotine dependence has been met for twelve months or longer. See VAOPGCPREC 19-97. The Board finds that, based on a theory of secondary service connection as outlined in VAOPGCPREC 19-97, that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). Additionally, the Board finds that, based on the lay statements from the veteran's brother, sister, and friend, as well as the appellant's written statements and oral testimony (i.e., that the veteran first used a tobacco product while in military service and continued to use a tobacco product post-service), the veteran's post-service diagnoses of chronic squamous cell carcinoma of the head and neck, and the July 1998 statement from Dr. Madden, the evidence of record supports a grant of service connection for the cause of the veteran's death. As noted above, service medical records confirm that the veteran smoked while in military service. Additionally, the veteran's brother, sister, and friends, as well as the appellant, reported that the veteran used a tobacco product while in military service and continued to use tobacco products after service. (The Board notes that a lay witness can testify as to the visible symptoms or manifestations of a disease or disability. Caldwell v. Derwinski, 1 Vet. App. 466 (1991).) Moreover, voluminous post-service VA and private treatment records show the veteran was diagnosed with chronic squamous cell carcinoma of the head and neck after separation from military service. Additionally, the certificate of death lists the immediate cause of the veteran's death as metastatic head and neck cancer. Next, the Board notes that Dr. Madden's July 1998 statement indicates that the veteran became addicted to nicotine while in military service, that the tobacco use caused the veteran's squamous cell carcinoma, and that squamous cell carcinoma caused the veteran's death. The Board recognizes that Dr. Madden, at a September 1989 personal hearing, testified that exposure to toxic agents, such as Agent Orange, certainly could be a source of the veteran's cancer. While this testimony raises a question as to the evidentiary weight to be given to his later July 1998 statement regarding nicotine dependence, it is nonetheless still the only medical statement in the record as to the origins and etiology of the metastatic head and neck cancer that caused the veteran's death in June 1988. In short, the July 1998 opinion as to etiology by Dr. Madden is unrefuted by other evidence of record. In addition, the Board notes that the record on appeal does not show that there exists a supervening cause of the veteran's death that severs the causal connection to the service-acquired nicotine dependence. See VAOPGCPREC 19-97. The record on appeal shows that the veteran may have started using tobacco products before military service and periodically stopped using tobacco products before stopping for good in approximately 1983. However, the record does not show that the veteran ever achieved "sustained full remission" from the use of tobacco (i.e., twelve months without addictive symptoms. See VAOPGCPREC 19-97, citing DSM-IV at p. 180. On the contrary, it appears from the record that the veteran simply switched from cigarettes to chewing tobacco when he gave up smoking in approximately 1982. In addition, it appears that he continued to use chewing tobacco until approximately 1983 or 1984 when he stopped using all tobacco products. As for whether nicotine dependence started prior to service, the Board finds that the lay statements as to the onset of tobacco use to be credible assessments of greater evidentiary weight than the references to a 40-year history of tobacco use set out in about 1986. Therefore, given that the certificate of death reported metastatic head and neck cancer as the immediate cause of the veteran's death, and because it appears from the evidence of record that chronic squamous cell carcinoma of the head and neck was as likely as not secondary to nicotine dependence, the Board finds that a grant of service connection is warranted. In summary, the Board finds that the evidence, both positive and negative, is at least in relevant equipoise. A fair reading of the medical evidence shows that the veteran's nicotine dependence likely began during military service and that it thereafter likely resulted in the chronic squamous cell carcinoma of the head and neck that caused the veteran's death. Under such circumstances, the Board concludes that the evidence supports a grant of service connection for cause of the veteran's death. 38 C.F.R. §§ 3.102, 3.303, 3.310 (1999). ORDER Service connection for the cause of the veteran's death is granted. MARK F. HALSEY Member, Board of Veterans' Appeals