Citation Nr: 1138828 Decision Date: 10/19/11 Archive Date: 10/25/11 DOCKET NO. 09-29 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant, K.Y., and C.H. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active military service from July 1950 to December 1952. He died in June 2007. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In June 2011, the Veteran testified at a Travel Board hearing before the undersigned. FINDINGS OF FACT 1. At the time of the Veteran's death, service connection was in effect for residuals of a gunshot wound to the left forearm with apparent union muscle damage of Muscle Groups VII and VIII, left forearm paralysis of the peripheral partial radial nerve, traumatic and operative scars of the left forearm, and osteomyelitis of the left ulnar bone, rated cumulatively as 70 percent disabling; post-traumatic stress disorder (PTSD), rated as 30 percent disabling; limitation of motion of the left shoulder associated with residual gunshot wound of the left forearm, rated as 20 percent disabling; residuals postoperative lateral femoral cutaneous nerve, scar, donor left iliac crest, associated with the left arm gunshot wound, rated as 10 percent disabling; and scar, donor right iliac crest, associated with the left arm gunshot wound, rated as 0 percent disabling; the combined rating was 90 percent and the Veteran was receiving a total disability rating based on individual unemployability (TDIU). 2. The Certificate of Death reflects that the Veteran died at the age of 77 in June 2007. The immediate cause of death was metastatic small cell cancer with unknown primary site. Transitional cell cancer, congestive heart failure (CHF), and chronic obstructive pulmonary disease (COPD) were listed as significant conditions contributing to death, but not resulting in the underlying cause. Tobacco use was indicated to be a factor contributing to death. 3. Competent and probative evidence establishes that the Veteran's PTSD resulted in nicotine addiction which in turn played an etiological role in the cause of the Veteran's death. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service caused or contributed substantially or materially to the Veteran's cause of death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1310 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303. 3.304, 3.307, 3.309, 3.312 (2011). 2. The claim for entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is dismissed. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.22, 3.102, 3.159 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The appellant's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service Connection for the Cause of the Veteran's Death The Veteran served in combat during the Korean War. He was awarded the Purple Heart. At the time of the Veteran's death, service connection was in effect for disabilities associated with his service as follows: residuals of a gunshot wound to the left forearm with apparent union muscle damage of Muscle Groups VII and VIII, left forearm paralysis of the peripheral partial radial nerve, traumatic and operative scars of the left forearm, and osteomyelitis of the left ulnar bone, rated cumulatively as 70 percent disabling; PTSD, rated as 30 percent disabling; limitation of motion of the left shoulder associated with residual gunshot wound of the left forearm, rated as 20 percent disabling; residuals postoperative lateral femoral cutaneous nerve, scar, donor left iliac crest, associated with the left arm gunshot wound, rated as 10 percent disabling; and scar, donor right iliac crest, associated with the left arm gunshot wound, rated as 0 percent disabling. The combined rating was 90 percent and the Veteran was receiving a TDIU. The Certificate of Death reflects that the Veteran died at the age of 77 in June 2007. The immediate cause of death was metastatic small cell cancer with unknown primary site. Transitional cell cancer, congestive heart failure (CHF), and chronic obstructive pulmonary disease (COPD) were listed as significant conditions contributing to death, but not resulting in the underlying cause. Nicotine dependence was indicated to be a factor contributing to death. The Certificate of Death was signed by the Veteran's treating physician, Bradley J. Roemeling, M.D. The appellant contends that her husband's PTSD resulted in prolonged nicotine abuse. She stated that the cigarette smoking was the only thing to calm him down. The cigarette use, in turn, played a role in the development of his cancer which caused death. Her assertions are supported by her daughters in written and oral statements. One of her daughters, C.C., is also a nurse. This daughter indicated that she had experience with PTSD and reported that the Veteran used cigarettes to reduce his stress and be able to function and stated that he could not function without them, although he tried. The Court has held that health care professionals are competent to offer opinions as to the etiology of a disability. See Goss v. Brown, 9 Vet. App. 109 (1996); Williams v. Brown, 4 Vet. App. 270, 273 (1993). A review of the medical evidence in this case shows that the Veteran was treated for renal and lung cancer. In approximately January 2007, he was diagnosed as having metastatic undifferentiated small cell cancer. He died within six months of this diagnosis. In an April 2008 letter, Dr. Roemeling indicated that the Veteran died from metastatic small cell cancer. He opined that it was more likely than not that this cancer originated in his lungs. In addition, Dr. Roemeling indicated that the Veteran had nicotine dependence as a secondary condition and it was more likely than not that the nicotine dependence was a factor in the development of his small cell cancer. A review of the psychiatric records confirms the Veteran's long history of nicotine use. A July 2005 VA examination diagnosed the Veteran with an Axis I diagnosis of PTSD and nicotine dependence. As noted, C.C. also stated that PTSD caused nicotine dependence. In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence shows that a disability incurred in or aggravated by service either caused or contributed substantially or materially to 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 it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to 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. 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)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. 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). Therefore, in order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disorder caused the death or substantially or materially contributed to it. 38 U.S.C.A. § 1310. To establish service connection for a particular disability, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. In addition, service connection may be granted for a chronic disease, including a malignant tumor, if manifested to a compensable degree with one year following service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, as noted in this case, the appellant does not assert that the Veteran's cancer was incurred in service or manifest in the initial post-service year. Rather, it is the appellant's argument that the service-connected PTSD resulted in nicotine abuse which was etiologically related to the Veteran's death. The Board notes that current law prohibits service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during active service. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300(a). Service connection is not precluded, however, where the disability or death resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service. 38 C.F.R. § 3.300(b)(1). In addition, VA's Office of General Counsel (OGC) has held that the legal bar to service connection for a disability or death attributable to tobacco use does not bar a finding of secondary service connection for a disability or death related to a veteran's use of tobacco products after a veteran's service, where that disability is proximately due to or aggravated by a service-connected disability that is not service-connected on the basis of being attributable to a veteran's use of tobacco products during service. VAOPGCPREC 6-2003 (October 28, 2003). The appellant's argument is not that nicotine dependence began during service. As noted, she claims that the Veteran's service-connected PTSD resulted in the nicotine dependence. The Board accepts that this is the case. The psychiatric records as well as C.C.'s statement as a competent medical professional both establish that there was in fact this etiological connection. The question remaining is whether the nicotine dependence played a causative role in the cause of the Veteran's death. According to the VA General Counsel opinion, where secondary service connection for disability due to smoking is at issue, adjudicators must resolve (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. Id. In this case, as noted, a service-connected disability, PTSD, caused the Veteran to use tobacco products after service. This use resulted in a nicotine dependency. In addition, the Board finds that the nicotine dependency which was a result of the service-connected PTSD was a substantial factor in causing a secondary disability (i.e. cancer). Dr. Roemeling indicated that nicotine dependence was a factor contributing to death on the Certificate of Death. In addition, Dr. Roemeling stated in his April 2008 letter that nicotine dependence was a factor contributing to death. The private medical records dated prior to death show that this physician treated the Veteran for his cancer. Thus, the Board attaches significant probative value to this opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Further, the Board finds that while the evidence does not unequivocally show that the Veteran's terminal cancer would not have occurred but for the nicotine dependency which was caused by the service-connected disability, the treating physician advanced that there was a definite etiological connection between the nicotine dependency and the development of the cancer, as indicated in both his letter and the Certificate of Death. As such, the Board finds that the Veteran's nicotine dependence due to his PTSD played a causative role in the cause of the Veteran's death, which according to the death certificate was cancer. . DIC under 38 U.S.C.A. § 1318 A surviving spouse may establish entitlement to DIC where it is shown that a veteran's death was not the result of willful misconduct, and at the time of death, the veteran was receiving, or entitled to receive, compensation for a service-connected disability and meets the following criteria: (1) that the veteran was continuously rated totally disabled for the 10 years immediately preceding death; (2) that the veteran was rated totally disabled upon separation from service, was continuously so rated, and died at least five years after separation from service; or, (3) that the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22 (a). The Court has indicated that, only if an appellant's claim for service connection for the cause of the service member's death is denied under 38 U.S.C.A. § 1310, does VA have to also consider an appellant's DIC claim under the provisions of 38 U.S.C. § 1318. See Timberlake v. Gober, 14 Vet. App. 122 (2000). In light of the grant of service connection for the cause of the Veteran's death, the claim of entitlement to DIC under 38 U.S.C. § 1318 is moot, and this aspect of the appellant's claim is dismissed. ORDER Service connection for the cause of the Veteran's death is granted. The claim for entitlement to dependency and indemnity compensation benefits under 38 U.S.C.A. § 1318 is dismissed. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs