93 Decision Citation: BVA 93-15426 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-40 913 ) DATE ) ) ) 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 Suzie St. Vil, Associate Counsel INTRODUCTION The appellant is the widow of the veteran who had active military service from July 1965 to April 1969. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a rating decision of April 1991 by the Milwaukee, Wisconsin Regional Office (hereinafter RO), which denied service connection for the cause of the veteran's death on a direct and presumptive basis. The appellant was notified of this decision in May 1991. She was informed that the malignancy which caused the veteran's death was not a condition qualified for service connection under 38 C.F.R. § 3.313. At that time, the appellant was also informed that the issue of service connection for the cause of death, as secondary to Agent Orange exposure, was deferred pending instructions from the Department of Veterans Affairs (VA) Central Office regarding this type of claim. A notice of disagreement with the above decision was received in May 1991. The statement of the case was issued in June 1991. The substantive appeal was received in August 1991. The appellant has been represented throughout her appeal by the Veterans of Foreign Wars of the United States. When the appeal was received at the Board in August 1991, it was referred to the above organization, which submitted written argument in January 1992. In May 1992, the Board remanded the case to the RO for further development. Pursuant to the request contained in the remand decision, additional clinical records were obtained in July 1992. In December 1992, the case was referred to the Armed Forces Institute of Pathology, which rendered an opinion in March 1993. Of record is a report of contact (VA Form 119) dated April 15, 1993, indicating that the Veterans of Foreign Wars of the United States had reviewed the opinion of the Armed Forces Institute of Pathology. The Board also notes that the RO has denied the appellant's claim of service connection for post-traumatic stress disorder for accrued benefits' purposes. It is unclear whether she has been notified of the June 1992 action, however, and the RO should take any needed action in connection therewith. Finally, the appellant's claim concerning Agent Orange exposure, as it relates to the veteran's death, is rendered moot by the ensuing action herein. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that service connection is warranted for the cause of the veteran's death. The appellant maintains that the cause of the veteran's death, metastatic malignant cylindroma, is directly related to his active military service. As a result, it is argued that service connection is warranted for the cause of the veteran's death. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the reasons and bases hereinafter set forth, it is the decision of the Board that the preponderance of the evidence supports the appellant's claim for service connection for the cause of the veteran's death. FINDINGS OF FACT 1. The veteran died in May 1989, at age 42; the immediate cause of death was reported as metastatic malignant cylindroma. 2. Objective clinical evidence demonstrates that a diagnosis of bronchial adenoid cystic carcinoma of the lung was made some three and one-half years following the veteran's discharge from military service in April 1969. 3. It is more likely than not that the lung cancer found in 1972 developed during the veteran's period of military service. CONCLUSION OF LAW The primary cause of the veteran's death, metastatic malignant cylindroma, was incurred in active wartime service. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.312 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that we have found that the appellant's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, we find that she has presented a claim which is plausible. Moreover, after a careful review of the evidentiary record, we are also satisfied that all relevant facts have been properly developed. Therefore, no further assistance to the appellant is required to comply with the duty to assist the appellant, as mandated by 38 U.S.C.A. § 5107(a). The basic facts in this case are not in dispute and may be briefly described. The record reflects that the veteran served on active duty from July 1965 to April 1969. He died in May 1989 at the age of 42. His death certificate shows that the immediate cause of death was metastatic malignant cylindroma. The veteran's service medical records, including a report of the enlistment examination conducted in March 1965, as well as the discharge examination of April 1969, contain no reference to any findings of malignancy. Medical evidence for the immediate post-service years demonstrates that the veteran was seen and evaluated for a cough in September 1972. This persisted, accompanied by weight loss. In October 1972 a chest film showed pneumonia and the veteran was admitted to Kenosha Memorial Hospital. At that time, examination of the chest revealed definite decreased breath sounds of the left lower lung field with a few moist rales in the area. On percussion, there was dullness in the left lower lung field. A left lower lobectomy was performed about 2 weeks after admission, and the pathological report showed bronchial adenoma, left lower lobe. Of record is a VA hospital summary, covering the period from January 1981 to February 1981, which shows that the veteran was referred for evaluation and treatment of a right lower lobe nodule. Chest X-rays revealed that the nodule had doubled in size over the past six months, and attempts to biopsy the lesion at the Iron Mountain Hospital by bronchoscopy were futile. After workup, further chest film, and tomograms, the impression was a left hilar tumor with right pulmonary metastases. During hospitalization a bronchoscopy was performed, which revealed an irregular, smooth mucosa at the left lower lobe stump, which was biopsied. The pathological diagnosis was bronchial adenoid cystic carcinoma. It was noted that this diagnosis was confirmed by electron microscopy, and it was felt to be a low grade malignancy. It was further noted that a thoracotomy was offered; however, the staff refused to perform the procedure when the veteran refused any blood transfusions. The veteran was afforded a VA compensation and pension examination in November 1984. History showed that the veteran underwent a partial resection of the right lung in 1983 at the Bellflower Hospital in California, removing the bulk of the right lung tumor. He further noted that the mediastinal tumor mass was treated with radiation and chemotherapy, and that another malignancy of the same type was found outside the gastrointestinal tract but inside the abdominal cavity in the right upper abdomen. Current lymphatic and hemic examination showed right cervical lymphadenopathy. There was a nontender, freely movable lymph node present in the left cervical region. There was also inguinal lymphadenopathy on the right and slightly on the left. A subsequent VA hospital summary shows that the veteran was hospitalized in January 1986 for evaluation of a lesion in the right upper lobe. During hospitalization, there were marked destructive lung changes on chest X-ray, lung function testing and physical examination. He also showed a marked decrease in the left lower lobe pulmonary artery. Received in July 1992 were further records of the veteran's 1981 evaluation. Among these records was the report of tissue examination conducted in February 1981 at the VA Medical Center in Madison, Wisconsin, at which time a bronchial adenoid cystic carcinoma was diagnosed. Also included were data from St. Joseph Hospital in Marshfield, Wisconsin, which showed that the veteran was admitted to the hospital in April 1981 for reevaluation and consideration of pulmonary section, without transfusion if possible. During his hospitalization the veteran underwent a bronchoscopy which revealed a tumor in the left main stem bronchus, the position of which precluded resection; postoperatively, the veteran did well and he was begun almost immediately on radiation therapy. The diagnosis was recurrent cylindroma. Received in March 1993 was an opinion by the Armed Forces Institute of Pathology, issued by the Chairman of the Department of Environmental and Toxicologic Pathology, who reported that agreement was obtained on the diagnosis of adenoid cystic carcinoma in the veteran's case. He indicated that, as a general rule, adenoid cystic carcinomas are very slowly growing tumors. He pointed out that this tumor's volume doubling time has been estimated at about two years. (See Mayo Clinic Proceedings 68:297-306, March 1993.) He further reported that the Department of Otolaryngic Pathology stated that it was their opinion that the adenoid cystic carcinoma in the veteran existed as a microscopic lesion during his period of service. He also noted the following: It is possible that the lesion existed (as a tiny or microscopic lesion) prior to the beginning of service. However, this would be less confidently stated than the statement about existence during the period of service. In summary, it was noted that the Armed Forces Institute of Pathology staff concurred in the diagnosis of adenoid cystic carcinoma in this case and that the probable duration of this tumor was such that it was present during the veteran's service. We concur. Thus, a grant of service connection for the cause of death is warranted. ORDER Service connection for the cause of the veteran's death is granted. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * J. J. SCHULE C. J. STUREK *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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.