Citation Nr: 0700083 Decision Date: 01/03/07 Archive Date: 01/17/07 DOCKET NO. 03-34 811A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from October 1943 to December 1945. He died in May 2002, and the appellant is the veteran's widow. Initially, the Board of Veterans' Appeals (Board) notes that this matter had been previously remanded for procedural and evidentiary considerations, and that the action requested in its remands has been accomplished to the extent possible. This case is now ready for further appellate review. FINDINGS OF FACT 1. The veteran died in May 2002. In the original death certificate, the immediate cause of the veteran's death was listed as lung cancer with other significant conditions contributing to death noted as coronary artery disease and stroke. 2. An amended certificate of death added post-traumatic stress disorder (PTSD) as an additional significant condition contributing to death. 3. At the time of his death, the veteran was service connected for PTSD, rated 70 percent disabling since November 1991. His psychiatric disability had previously been rated as 50 percent disabling, effective since June 1976, and he had been service connected for this disorder since 1946. 4. The veteran's service-connected PTSD contributed to his fatal lung cancer in that it played a material causal role in his use of tobacco products after service. The veteran's use of tobacco products caused the disease that is directly linked to the veteran's demise. CONCLUSION OF LAW The death of the veteran was the proximate result of a disease or injury incurred in service. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.312 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background At the outset, the Board notes that this matter has been sufficiently developed pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005) (VCAA). Moreover, as a result of the Board's decision to grant the benefit sought, any failure on the part of the Department of Veterans Affairs (VA) to develop the claim cannot be considered prejudicial to the veteran. Appellant contends that entitlement to service connection for the cause of the veteran's death should be granted on the basis that his death was the result of nicotine dependence that was, in turn, aggravated by his service-connected PTSD. Pursuant to 38 U.S.C. §§ 1110 and 1131, compensation is payable "[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." DIC is payable to the surviving spouse of "any veteran [who] dies after December 31, 1956, from a service-connected or compensable disability." 38 U.S.C. § 1310(a). Section 1310(a) states that the "standards and criteria for determining whether or not a disability is service-connected shall be those applicable under chapter 11 of this title." Chapter 11 contains the eligibility criteria for disability compensation for service-connected disability. To establish service connection for the cause of the veteran's death, evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability was a contributory cause of the death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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 it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Section 1103(a) of title 38, United States Code, prohibits service connection of a death or disability "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." (Emphasis added.) However, VAOPGCPREC 6-2003 (October 28, 2003) held that neither 38 U.S.C. § 1103(a), which prohibits service connection of a disability or death on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during service, nor VA's implementing regulations at 38 C.F.R. § 3.300, bar a finding of secondary service connection for a disability related to the veteran's use of tobacco products after the veteran's service, where that disability is proximately due to a service-connected disability that is not service connected on the basis of being attributable to the veteran's use of tobacco products during service. The questions that adjudicators must resolve with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service connected on the basis of being attributable to the veteran's use of tobacco products during service are: (1) whether the service- connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service- connected disability. If these questions are answered in the affirmative, the secondary disability may be service connected. Further, the secondary disability may be considered as a possible basis for service connection of the veteran's death, applying the rules generally applicable in determining eligibility for dependency and indemnity compensation. In a medical report from Dr. Stuart Smith, dated in December 1976, it was noted that the veteran reported that he smoked three packs of cigarettes a day. While a subsequent private medical record from May 1977 notes that the veteran no longer smoked, an August 1988 private medical record notes that the veteran had a history of old heavy tobacco smoking, quit a number of years ago, but re- began smoking lightly until stopping again three years earlier. The veteran died in May 2002. In the original death certificate, the immediate cause of the veteran's death was listed as lung cancer with other significant conditions contributing to death noted as coronary artery disease and stroke. An amended certificate of death added PTSD as an additional significant condition contributing to the veteran's death. At the time of his death, the veteran was service connected for PTSD, rated 70 percent disabling since November 1991. His psychiatric disability had previously been rated as 50 percent disabling, effective since June 1976. In a private medical report, dated in June 2002, Dr. Trello noted that the veteran recently passed away from metastatic lung cancer and that this was an extensive disease. She opined that his disease process was contributed to by his history of PTSD, noting that his ability to cope with his severe lung dysfunction was significantly compromised by his anxiety disorder. Dr. Trello also noted that the veteran also had a history of coronary artery disease and stroke, which likely were conditions contributing to his death. She opined that these conditions also were likely made worse by his PTSD. In a private medical report, dated in August 2002, Dr. Wiley noted that the veteran was a patient of his whom he followed for approximately one year, and that he had recently passed away from metastatic lung cancer. Dr. Wiley further noted that the veteran also had a history of coronary artery disease and stroke, and was of the opinion that his disease process was contributed to by his history of PTSD. At the appellant's hearing before the Board in August 2004, appellant testified that the veteran was smoking at the time she met him in 1946 and thereafter continued to smoke in order to calm his nerves. In a private medical report, dated in September 2005, Dr Stuart Smith noted that he had treated the veteran since 1976 until near the time of his death. Dr. Smith stated that he could attest to the fact that the veteran was a heavy smoker, and that he had terminal metastatic lung cancer and coronary artery disease, in addition to severe lupus which produced lupus pericarditis many years earlier. It was Dr. Smith's further understanding that the veteran had PTSD and believed that there was at least a 50 percent or greater chance that this heavy cigarette smoking was etiologic in his heart disease and of course in his lung cancer. Dr. Smith further opined that it would also be highly likely that PTSD was the source of his heavy cigarette usage. In a VA medical report, dated in May 2006, Dr. Garrison stated that he was unaware that PTSD was a cause of cancer and/or arterial disease that the veteran had. He did, however, note that smoking tobacco was clearly a major contributing cause of arterial disease and lung carcinoma, and that while he stated that he did not know whether PTSD caused people to become heavy tobacco smokers, he strongly suspected that PTSD would make it more difficult for a heavy smoker addicted to tobacco to stop smoking. In a VA medical report, dated in June 2006, Dr. James Smith stated that based on the information contained in the medical record and general discussion with other physicians, he believed that it was not possible to directly relate the veteran's service-connected PTSD with his lung cancer. He further indicated that there was no question that prolonged inhaled tobacco use contributed to the development of lung cancer, and that this included the use of tobacco in the self-medication of psychiatric conditions. II. Analysis The Board has carefully considered the evidence of record and concludes that the record contains evidence that complies with the requirements established under VAOPGCPREC 6-2003 (October 28, 2003). The veteran's PTSD had been rated as 70 percent disabling since 1991, and as 50 percent disabling since 1976. The veteran had been service connected for psychiatric disability, variously classified, since 1946. The veteran's original death certificate indicates that he died in May 2002, notes the immediate cause of death as lung cancer, and lists coronary artery disease and stroke as other significant conditions contributing to death. An amended certificate of death added PTSD as an additional significant condition contributing to the veteran's death. According to the appellant, the veteran was smoking at the time she met him shortly after his return from service in 1946, and thereafter continued smoking heavily with exception of a period around 1977. In a September 2005 statement, the veteran's long-time treating physician, Dr. Stuart Smith, opined that there was at least a 50 percent or greater chance that this heavy cigarette smoking was etiologic in his heart disease and of course in his lung cancer, and that it would also be highly likely that PTSD was the source of his heavy cigarette usage. The Board also notes that VA opinions from May and June 2006 merely opine that there is no direct relationship between the veteran's PTSD and the cause of his death, but do not necessarily contradict the opinions of Dr. Stuart Smith. In fact, the May 2006 VA examiner strongly suspected that PTSD would make it more difficult for a heavy smoker addicted to tobacco to stop smoking. Accordingly, based on the entire record of evidence, and with resolution of all reasonable doubt in the appellant's favor, the Board concludes that the veteran's service-connected PTSD played a material causal role in his continued use of tobacco products after service, that his smoking played a material causal role in the development of the veteran's fatal lung cancer, and that the lung cancer would not have occurred but for the tobacco use associated with his PTSD. Therefore, the requirements of service connection for the cause of the veteran's death have been met. ORDER Service connection for the veteran's cause of death is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ C. W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs