Citation NR: 9701476 Decision Date: 01/16/97 Archive Date: 02/03/97 DOCKET NO. 94 - 25 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for the cause of the veteran’s death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty from June 7 to June 28, 1948, and from January 1951 to service retirement in March 1972. His death occurred on October 17, 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of April 1994 from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. CONTENTIONS OF APPELLANT ON APPEAL The appellant, widow of the veteran, contends that the RO erred in failing to grant entitlement to service connection for the cause of the veteran’s death because it did not take into account or properly weigh the medical and other evidence of record. It is contended that the veteran’s fatal colon cancer was a result of stress experienced while flying in combat, and that the veteran complained to her in 1969 that he was vomiting blood and had bloody stools but refused to inform military physicians for fear of being taken off flying status. It is further contended that cancer may take years to develop, and that the veteran’s fatal cancer of the colon might well have originated during his period of active service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104(a) (West Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the veteran’s death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. At the time of the veteran’s death, service connection was not in effect for any disability. 3. The death certificate shows that the veteran’s death occurred on October 17, 1982, at age 51; that the immediate cause of the veteran’s death was hepatic failure due to metastatic cancer to the liver as a consequence of cancer of the colon; and that no autopsy was performed. 4. Hepatic failure, liver cancer, and cancer of the colon were not shown during active service, on service separation examination, during the initial postservice year, or at any time prior to August 1980, more than eight years following final service separation. 5. There is no competent medical evidence of record which links or relates the veteran’s period of active service to the cause of his death. CONCLUSIONS OF LAW 1. Hepatic failure, liver cancer, and cancer of the colon were not incurred in or aggravated by active service, and the service incurrence of malignant tumors may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1995). 2. A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to cause the veteran’s death. 38 U.S.C.A. §§ 1310, 5107(a) (West 1991); 38 C.F.R. § 3.312 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the appellant’s claim is plausible and is thus “well grounded” within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). We further find that the facts relevant to the issue on appeal have been properly developed and that the statutory obligation of VA to assist the claimant in the development of her claim have been satisfied. 38 U.S.C.A. § 5107(a)(West 1991). In that connection, we note that the RO has obtained the veteran’s complete service medical and administrative records, as well as available evidence from all sources of postservice treatment of the veteran identified by the claimant, and that she has declined a personal hearing. On appellate review, the Board sees no areas in which further development might be of assistance to the claimant. In order to establish service connection for claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including malignant tumors, when manifested to a compensable degree within the initial post service year. 38 C.F.R. § 3.309(b) (1995). The veteran’s service medical records are complete, and contain a report of service entrance examination in January 1951, reports of annual medical examinations and examinations for flight duty from March 1952 to May 1970, and a report of service retirement examination conducted in October 1971. The service medical records contain no complaint, treatment, or findings of hepatic failure, liver cancer, cancer of the colon, stress, hematemesis, hemorrhoids, or bloody stools. The veteran’s service retirement examination disclosed no complaint or findings of hepatic failure, liver cancer, cancer of the colon, stress, hematemesis, hemorrhoids, or bloody stools. His psychiatric evaluation was normal, and digital examination of his rectum and prostate was normal. Postservice medical records show that the veteran was seen at the Navy Regional Medical Center(NRMC), San Diego, California, in September 1980 with complaints of rectal pain and passing bright red blood for approximately seven to eight months. His family history was positive for carcinoma, and he denied any history of nausea, vomiting, hematemesis, or melena. He offered a history of being seen the previous month by a physician at George Air Force Base Hospital, who performed a proctoscopy, found a polyp at 13 cms., and obtained a biopsy which showed adenocarcinoma. A barium enema in August 1980 revealed an “applecore” lesion of the colon. The veteran had come to the NRMC to have surgery performed. During preoperative work-up, another proctoscopy was performed, confirming the presence of a friable superficial lesion at 13 cms. and beyond. In September 1980, the veteran underwent a low anterior resection of the sigmoid colon, a right transverse loop colonoscopy, and liver biopsy. The report of biopsy identified moderately differentiated adenocarcinoma of the sigmoid colon and moderately differentiated adenocarcinoma of the excised liver nodule, consistent with a primary gastrointestinal carcinoma. A postoperative oncology consultation noted that a liver scan at Victorville had been reported as negative, and that findings during the veteran’s surgery had shown several separate metastases to the liver. The diagnosis was adenocarcinoma of the sigmoid colon, stage D (Duke), currently symptomatic. In November 1980, the veteran returned to the NRMC, San Diego, for evaluation and further surgery to take down the colostomy loop created during his earlier surgery. Preoperative work-up indicated the presence of multiple inoperable metastases in the liver. A barium enema showed a contained leak from the anastomotic site, and the surgery was postponed, In February 1981, no evidence of the leak was found, and the veteran was readmitted in March 1981 for colostomy closure. That procedure was completed without complications on the day following admission, and his postoperative course was unremarkable. The diagnosis at discharge was status post long anterior resection with diverting colostomy for Duke’s stage - D carcinoma of the colon. Records from the George Air Force Regional Hospital, dated in September and October 1982 shown that the veteran’s treatment was coordinated with his physicians at the NRMC, San Diego. The veteran was shown to have advanced metastatic cancer of the colon. The veteran reported becoming very sick when he moved around. He was given morphine for relief of pain. An entry on October 12, 1982 shows that the veteran stated that he was unable to go to the NRMC and would be unable to return to the Air Force hospital at George AFB due to nausea and vomiting. He indicated that he received daily hospice care at his home. The diagnosis was terminal metastatic cancer of colon. The veteran’s death occurred five days later at his home. Analysis In order to establish service connection for the cause of the veteran’s death, the medical evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1995). The record shows that at the time of the veteran’s death, service connection was not in effect for any disability. The death certificate shows that the veteran’s death occurred on October 17, 1982, at age 51; that the immediate cause of the veteran’s death was hepatic failure due to metastatic cancer to the liver as a consequence of cancer of the colon. Hepatic failure, liver cancer, and cancer of the colon were not shown during active service, on service separation examination, during the initial postservice year, or at any time prior to August 1980, more than eight years following final service separation. While the appellant has contended that the veteran’s cancer of the colon might have been incurred by stress while serving in combat as a pilot, both his service medical records and his post service medical records are devoid of any evidence or indication that the veteran experienced stress or other psychiatric disability during his lifetime. Further, the veteran’s service medical records and the history he offered at the NRMA in 1980 are silent for any vomiting of blood (hematemesis) or for bloody stools prior to 1980. Further, when a determinative issue involves a medical diagnosis or medical causation, competent medical evidence is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). In the present case, the appellant has not submitted any competent medical evidence or opinion which links or relates the veteran’s fatal cancer of the colon to his active service. Further, the Board notes that, as a lay person, the appellant is not competent to offer evidence that requires medical knowledge, such as the diagnosis or cause of a disability. See Grottveit, at 93; Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). While the appellant has submitted statements to the effect that a physician told her that cancer is progressive and might have started long before its diagnosis, there is no competent medical evidence of record which links or relates the veteran’s period of active service to the cause of his death. Further, the United States Court of Veterans Appeals (Court), in the context of considering the issue of whether new and material evidence had been submitted to reopen a claim, has held that an appellant’s statement about what a doctor told the lay claimant does not constitute competent medical evidence under Grottveit, id.; Warren v. Brown, 6 Vet.App. 4 (1993). Thus, the claimant’s statement as to what she was told by a physician is not competent and, therefore, cannot be probative. The clippings submitted by the appellant establishing essentially the same point make no reference to this particular veteran and, in any case, do not establish the presence of hepatic failure, liver cancer, or cancer of the colon during the veteran’s period of active service, on service separation examination, during any applicable presumptive period, or at any time prior to August 1980. Based upon the foregoing, the Board finds that the evidence in this case does not support a conclusion that hepatic failure, liver cancer, or cancer of the colon were incurred in or aggravated by active service, or that a disability incurred in or aggravated by active service caused or contributed substantially or materially to cause the veteran’s death. For that reason, the claim for service connection for the cause of the veteran’s death must be denied. ORDER The claim for service connection for the cause of the veteran’s death is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1996), 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, 102 Stat. 4105, 4122 (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. - 2 -