Citation Nr: 0001512 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 95-02 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from December 1943 to December 1945. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In correspondence in the record, the claimant makes several general statements that cardiac arrest and pneumonia developed during VA hospitalization prior to the veteran's death. These statements are not clear as to whether the claimant believes that the veteran's death was related to VA medical treatment. If she does wish to advance a claim on this basis under the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1998), she should so advise the RO. FINDING OF FACT The appellant has submitted no competent medical evidence linking the cause of the veteran's death to active service, nor competent evidence otherwise demonstrating that a disease for which the presumption of service connection may be warranted contributed substantially or materially to the cause of death. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim for service connection for the cause of the veteran's death. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background It is the appellant's contention that the veteran developed skin cancer due to sun exposure during World War II and that this condition contributed to his death. She has also asserted that his skin cancer was caused by radiation exposure. Service administrative records show duty in the Pacific Theater. A review of the service medical records (SMRs) is negative for complaints, treatment, or diagnosis of any lung disease or heart condition. Upon separation examination in December 1945, a normal cardiovascular system was indicated, and chest X-ray was negative. Post service private and VA medical records reflect recurring skin cancer beginning in 1952 with additional treatment in the mid 1960s (1964-1967) and in the early 1970s (1971 through 1973) with ultimate removal of his right eye in November 1972. Chest pain and shortness of breath was reported upon post service examination in 1967 (beginning in the summer of 1966) and a diagnosis of arteriosclerotic heart disease was reported in 1970 and thereafter. The VA terminal hospital report shows that the veteran was admitted on February 12, 1973, and that he died on February [redacted], 1973. The admitting diagnoses were angina and congestive heart failure. The autopsy protocol dated on February 26, 1973, shows that the veteran in the last admission had an acute myocardial infarction with pulmonary edema. The postmortem findings revealed severe arteriosclerotic heart disease with recent and old myocardial infarctions that produced cardiac failure resulting in pulmonary edema. According to the death certificate, the veteran died on February [redacted], 1973. The immediate cause of death was listed as pneumonia, due to respiratory failure, due to congestive heart failure. At the time of his death, the veteran was not service-connected for any disability. The appellant's initial claim for death benefits was denied in April 1973. She submitted additional documents in 1993 and requested again that service connection be granted for the cause of the veteran's death. It was at this time that she contended that the veteran's death was the result of skin cancer due to radiation exposure during service. Added to the record in 1994 were numerous statements in support of the appellant's claim. One statement by a fellow serviceman was dated in 1946 and essentially pertained to remembrances of the veteran being treated for a back problem during service. The additional statements, if dated, were from late 1993 or early 1994, and were provided by family members and friends. These statements attested to the fact that the veteran had recurring skin cancer. Some statements reflected that the veteran's initial treatment was in the late 1940s. Specifically, it was reported on more than one occasion that a Dr. Cockerell in Texas treated the veteran. (The Board notes that medical records of Dr. Cockerell were obtained and reflect treatment in 1952 for skin cancer.) A statement by Catherine Ross dated in December 1993 also indicated that Dr. Cockerell told the veteran that his skin cancer was caused by too much sun exposure during World War II. In January 1994, the appellant submitted numerous medical treatise excerpts regarding skin cancers and their relation to the cumulative effects of sun exposure. In August 1996, the Defense Special Weapons Agency responded to a request by the RO for information regarding the veteran's official military duties during service. It was concluded that the available service records did not document that the veteran was present in Hiroshima or Nagasaki. Records placed him "hundreds of miles" from either city. In an August 1996 statement, the appellant contended that the veteran's cancer was the result of the sun and not radiation exposure. Pertinent Laws and Regulations The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence that the claim is well grounded. Under the law, it is the obligation of the person applying for benefits to come forward with a well-grounded claim. 38 U.S.C.A. § 5107(a). A well grounded claim is "[a] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Mere allegations in support of a claim that a disorder should be service-connected are not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). The U.S. Court of Appeals for Veterans Claims (Court) has held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b) (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. Also controlling in this case are decisions of the Court concerning the types of evidence required to establish important facts. The Court has held that a lay person can provide probative eye-witness evidence of visible symptoms, however, a lay person can not provide probative evidence as to matters which require specialized medical knowledge acquired through experience, training or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Court has further held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit, 5 Vet. App. at 93. The basic framework of the law and regulations provides that service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). In the case of a malignant tumor or heart disease, service incurrence may be presumed if the disease is manifested to a compensable degree within one year of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection for disability claimed as attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, service connection can be granted for certain types of cancer specific to radiation-exposed veterans, including skin cancer. 38 U.S.C.A. § 1112(c) (West 1991); 38 C.F.R. § 3.309(d) (1999). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311 (1999). Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that a disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). A "radiation-exposed veteran" is a veteran who while serving on active duty or on active duty for training or inactive duty training participated in a radiation-risk activity. 38 C.F.R. § 3.309(d)(3) (1999). "Radiation-risk activity" is defined as 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(b). "Radiogenic disease" is defined as a disease that may be induced by ionizing radiation; skin cancer is included on the list of known radiogenic diseases. 38 C.F.R. § 3.311(b)(2) (1999). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, established the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Under the basic statutory and regulatory provisions governing the benefit at issue, to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singularly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributing cause, it is not sufficient to show that it causally shared in producing death, but rather, it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, in that it combined to cause death; 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) (1999). Analysis While the Board has no doubt about the good faith of the claimant in pursuing this matter, it is clear that under the law and regulations her claim must fail. The evidence of record does not contain any competent medical evidence indicating that the veteran's cause of death was due to a disorder related to active service on either a direct or presumptive basis, or that a disorder related to service contributed substantially and materially to cause death. Pertinent disability was not manifested in service or for many years thereafter and there is no competent evidence linking heart disease or skin cancer to active service. Further, even if the record could be deemed to show that skin disease, including cancer, was causally related to service, there is no competent medical evidence showing that skin disease, including cancer, caused or contributed substantially and materially to cause death. The Board notes that the Defense Special Weapons Agency found the records revealed the veteran was not exposed to radiation while serving in the Pacific theater during World War II. Therefore, the Board finds the provisions of 38 C.F.R. §§ 3.309, 3.311 are not applicable. Although skin cancer is listed as a radiogenic disease, the record does not demonstrate radiation exposure in service, and there is no medical evidence of record specifically relating the veteran's skin cancer to any event in service. The only evidence in support of the appellant's assertions that the veteran's death was linked to active service are statements made by her, friends, and other family members. While they are competent to testify as to symptoms the veteran experienced, they are not shown to be competent to provide a medical opinion because this requires specialized medical knowledge. Grottveit, Espiritu; supra. Similarly, with respect to the lay statement by Catherine Ross that the veteran was told by a physician that his skin cancer was due to too much sun exposure during service, the Board must respectfully point out to the appellant that the Court has held: . . . that the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Court went on to hold that under 38 U.S.C.A. § 5103(a), VA had a duty to inform a claimant as to how to complete an application for benefits. Id. at 77-80. Thus, under the law it is incumbent upon the claimant to produce evidence from this physician confirming such an opinion. She may not establish the medical opinion with lay evidentiary assertions. In this matter, however, the record shows that an attempt was made to obtain evidence from this physician, but these documents reflect no such opinion. It would thus appear to the Board that the RO effectively went beyond the duty under § 5103(a) by assuring that the record contained the treatment records of the medical provider mentioned by a lay party. Assuming there could be any further duty under § 5103(a) on this record, the claimant is advised that she must obtain a report from this physician to confirm that this is his opinion that the post service skin cancer was related to sun exposure in service. Even if such evidence was obtained, however, the claimant could not prevail since it would still have to be shown by competent medical evidence that skin cancer of service origin either caused death or contributed substantially and materially to cause death. The Board has also reviewed the medical treatise excerpts submitted by the claimant indicating a causal connection between skin cancer and sunlight exposure. The Court has addressed whether medical texts or physicians' opinions containing generic statements can constitute competent medical evidence to establish the nexus element necessary to make a claim well grounded in a specific case. In Libertine v. Brown, 9 Vet. App. 521, 523 (1996), the Court, citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996), held that such evidence is "too general and inconclusive to make [a] claim well grounded." On the other hand, in Rucker v. Brown, 10 Vet. App. 67 (1997), the Court addressed whether scientific articles could be used to establish a theory that non-ionizing radiation from naval radar could be linked to certain carcinomas and held they could. In that case, however, the record also contained a supporting opinion from the treating physician that was specific to the facts of the appellant's claim and the Court cited both the articles and the opinion as the basis for finding the claim well grounded. Additionally, the Board observes that in the case of Mattern v. West, 12 Vet. App. 222 (1999), the Court noted that it had previously addressed the relevance of medical treatise evidence to the determination of well-groundedness, and determined that generally, an effort to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise "is too general and inconclusive" to well ground a claim. The Court went on to indicate that medical treatise evidence can, however, provide important support when combined with an opinion of a medical professional. Similarly, medical treatise evidence could "discuss[] generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon objective facts." Wallin v. West, 11 Vet. App, 509, 514 (1998). In this case, there is no medical opinion linking the specific facts of this appeal to the general theory, and the medical texts do not discuss the generic relationship with such a degree of certainty that "there is at least a plausible causality based upon objective facts." On the basis of the above findings, the Board can identify no basis in the record that would make this claim for service connection for the cause of the veteran's death plausible or possible. 38 U.S.C.A. § 5107(a) (West 1991); Grottveit, Tirpak; supra. Accordingly, the claim is denied. Regarding the analysis of this case pursuant to the holdings in Caluza and Combee, the Board acknowledges that it decided the present appeal on a different legal basis than the RO did. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). However, the Board concludes that the appellant has not been prejudiced by the decision herein as she failed to meet her initial burden of presenting a well grounded claim. Meyer v. Brown, 9 Vet. App. 425 (1996). ORDER Entitlement to service connection for the cause of the veteran's death is denied. Richard B. Frank Member, Board of Veterans' Appeals