Citation Nr: 1034945 Decision Date: 09/16/10 Archive Date: 09/21/10 DOCKET NO. 09-15 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to January 1969. The Veteran died in August 2005, and the appellant is his surviving spouse. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). FINDINGS OF FACT 1. An August 2005 certificate of death indicates that the Veteran died in August 2005 at the age of 57. The certificate of death lists the immediate cause of death as cholangiocarcinoma and the underlying cause as primary sclerosing cholangitis. Other significant condition contributing to death but not resulting in the underlying cause was identified as diabetes mellitus. 2. At the time of the Veteran's death, service connection was in effect for diabetes mellitus, Type II; peripheral neuropathy of the right upper extremity associated with diabetes mellitus; peripheral neuropathy of the left upper extremity associated with diabetes mellitus; peripheral neuropathy of the right lower extremity associated with diabetes mellitus; and peripheral neuropathy of the left lower upper extremity associated with diabetes mellitus. 3. The evidence shows that a disability incurred in or aggravated by military service contributed substantially or materially to cause the Veteran's death. CONCLUSION OF LAW A disability incurred in or aggravated by active military service contributed substantially or materially to cause the Veteran's death. 38 U.S.C.A. § 1310, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.5, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Generally, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). VA death benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 131; 38 C.F.R. §§ 3.5, 3.312. In order 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 was the principal or contributory cause of death. 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. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(b), (c). The Veteran died in August 2005 at the age of 57. The certificate of death reported the immediate cause of death was cholangiocarcinoma. The underlying cause of death was listed as primary sclerosing cholangitis. Other significant condition contributing to death but not resulting in the underlying cause was identified as diabetes mellitus. An autopsy was not performed. At the time of the Veteran's death, service connection was in effect for diabetes mellitus, Type II; peripheral neuropathy of the right upper extremity associated with diabetes mellitus; peripheral neuropathy of the left upper extremity associated with diabetes mellitus; peripheral neuropathy of the right lower extremity associated with diabetes mellitus; and peripheral neuropathy of the left lower upper extremity associated with diabetes mellitus. The Veteran's service treatment records are negative for diagnoses or findings of any liver disorder or carcinoma of any kind. A June 2002 private medical report reflects that the Veteran established care with Dr. R.G. with a number of complaints, to include constant fatigue, constant leg cramping, and depression. A past medical history of ulcerative colitis was noted, as well as status post colectomy at age of 33, followed by a ventral hernia repair in 1995. The diagnostic assessments were diabetes mellitus, Type II, of uncertain control with an examination suggestive of at least diabetic neuropathy; major depression; status post total colectomy, with continent ileostomy; and a family history of prostate cancer, without a prior prostate screening. Two weeks later, on a follow-up, the assessments were diabetes mellitus, Type II, suboptimally controlled and multiply complicated with an examination and laboratory work suggestive of diabetic neuropathy; elevated liver functions, likely non- alcoholic steatohepatitis; and major depression. A January 2003 private hospital report noted that the Veteran was hospitalized after approximately a one year of history of increasing abdominal discomfort and fatigue. It was noted that the Veteran had been followed by his primary physician, who noticed abnormal liver enzymes and found hepatic mass on magnetic resonance imaging. It was also noted that the Veteran had a history of Type II diabetes that had not been well controlled and that he was status post total colectomy and ileostomy in1981 after years of rectal bleeding and diarrhea. The pertinent diagnosis was hepatic mass of a questionable etiology and questionable cholangiocarcinoma with a history of his ulcerative colitis versus primary hepatoma. A needle biopsy was requested to establish a diagnosis. An endoscopic retrograde cholangiopancreaogram (ERCP) was performed by the Veteran's primary physician, Dr. W.E., and the final diagnosis was probable primary sclerosing cholangitis (PSC). Private treatment records, dated from February 2003 to December 2003, reflect that Dr. E. continued to treat the Veteran for cholangitis. In June 2004, Dr. E. referred the Veteran to a private clinic for an evaluation of a possible liver transplant and the Veteran underwent various testing, to include an abdominal computerized axial tomography scan, liver ultrasound, echocardiogram, and an ERCP. In July 2004, a private liver hepatologist reported that the Veteran had PSC cirrhosis with no complications of the chronic liver disease. It was noted that the Veteran had fatty liver and had features of the metabolic syndrome, to include diabetes mellitus, obesity, and hyperlipidemia. It was also noted that hepatitis C vaccine should be checked as the Veteran served in the military. A July 2004 private clinic letter stated that the Veteran was found to have cirrhosis secondary to PSC but had no complications from his liver disease other than symptomatic fatigue. It was noted that after the Veteran was found to have PSC after an ERCP in January 2003, a lesion was found on his liver per imaging study which appeared to be either fibrosis or fatty infiltration. The letter stated that an ERCP with balloon dilatation were routinely performed at 6 month intervals and the Veteran had components of metabolic syndrome, to include obesity and diabetes, which could contribute to fatty liver. The recommendation was that it was too early for the Veteran to have an orthotopic liver transplantation evaluation. A July 2004 private physician's report, Dr. R.G. stated that the Veteran was not expected to be able to return to employment and should be considered fully medically disabled as his functional status had progressively deteriorated during the period that he had been under the physician's care, due to the progressive nature of the Veteran's condition. The diagnoses of PSC; recurrent major depression; ulcerative colitis, status post colectomy and Barnett continent intestinal reservoir; diabetes mellitus and diabetic neuropathy; metabolic-induced fatty liver; and nocturnal myoclonus were listed. A February 2005 VA gastroenterology report stated that the Veteran was referred for treatment recommendations for PSC and possible placement on the Liver Transplantation List. The Veteran's chief complaint was fatigue worsening over the previous three months that was not refreshed by a night sleep, but otherwise he was asymptomatic. The diagnostic impression was PSC; status post colectomy with continent ostomy; and diabetes Type II, medically controlled. An April 2005 VA treatment report noted that evidence of decreased kidney function and neuropathy was found. The assessments were diabetic neuropathy and cholangitis. In June 2005, the Veteran made an emergency room visit with a complaint of intermittent vomiting for the previous three or four days. Subsequently, he was hospitalized for an outpatient ERCP evaluation, following increased episodes of jaundice with discomfort consistent with possible obstructing disease. After the ERCP, the final endoscopic diagnosis was PSC, with no obvious sign of active bacterial cholangitis. A July 2005 private clinic report stated that the Veteran was referred for a liver transplant evaluation because he had significant deterioration over the previous few months in terms of jaundice, fluid retention, fatigue, and cholangitis requiring hospitalization. The assessment was end stage liver disease secondary to sclerosing cholangitis. It was reported that the Veteran's clinical course had been deteriorating, which would support him being a candidate for a transplant. The consulting physician stated that there was a concern about the possibility of cholangiocarcinoma. In August 2005, the Veteran visited the emergency room again with chief complaints of disorientation and confusion. After an examination of the Veteran, the impressions were acute hepatic encephalopathy, acute elevated internal normalized ratio, acute coagulopathy; acute altered mental status, fatigue, malaise, nausea, and frequent falls. An August 2005 private hematology/oncology consultation report revealed an assessment of end-stage liver disease and metastases, adenocarcinoma. It was noted that the primary carcinoma was most likely cholangiocarcinoma. An August 2005 private hospital report noted that the Veteran was discharged on home hospice. The Veteran died in August 2005. The appellant filed the present claim for service connection for the cause of the Veteran's death in November 2005. In July 2008, a VA medical opinion was obtained to determine whether the Veteran's service-connected diabetes mellitus, Type II, materially and substantially contributed to his death. The VA examiner indicated that private and VA medical records were reviewed. The examiner opined that the Veteran died of cancer of the bile ducts, which was not materially or substantially due to diabetes. In support of this opinion, the examiner stated that while the cause of the PSC was not known, a small subset of PSC patients of approximately 10% had a rapidly progressive form of the disease with early onset of abdominal pain, fever, and itching that responded dramatically to treatment with corticosteroids. The examiner further stated that since corticosteroids, such as Prednisone, were medications for treatment immune diseases, such as ulcerative colitis, Crohn's disease, and systemic lupus eryhematosis, this small subset of PSC patients were believed to have an immune disorder causing their PSC. At her September 2009 hearing before the Board, the appellant testified that several private and VA physicians who treated the Veteran prior to his death related the Veteran's liver problems to his diabetes. The appellant also related Dr. B.F.'s statements that the Veteran's diabetes aggravated his liver conditions that ultimately led to his death. The appellant wished to obtain and submit additional evidence from the physicians mentioned during the hearing and the motion to hold the record open for 30 days was granted. In September 2009, the appellant submitted additional evidence consisting of medical opinion letters from Drs. B.F., W.E., and R.G., along with a waiver of RO consideration of the evidence. In a letter from the Veteran's former VA treating physician, Dr. B.F. stated "[i]t is my opinion that [the Veteran's] diabetes mellitus was a contributing factor in his death and was a major factor in his total system shutdown from the cholangiocarcinoma and cholangitis." A letter from Dr. W.E. who identified himself as the primary physician of the Veteran until the Veteran's death stated [The Veteran] had been exposed to Agent Orange in Vietnam and had been given a 60 % disability pension for the diabetes which was felt to be secondary to this exposure and this had been a long-term process. Due to the disabling and deteriorating effects of diabetes over long period of time, it is my medical opinion that the diabetes certainly did directly or indirectly act as a contributing factor in the patient's demise and that it weakened his condition such that he probably was less tolerant to fight off immunologically the ravages of this disease process. In a September 2009 note, Dr. R.G. opined that the primary cause of the Veteran's death was cholangiocarcinoma and PSC and that the Veteran had diabetes mellitus, Type II, which was a contributing factor to his death. After reviewing the evidence of record, the Board concludes that service connection for the cause of the Veteran's death is warranted. The evidence shows that a disability incurred in or aggravated by military service contributed substantially or materially to cause the Veteran's death. Prior to the Veteran's death, service connection was in effect for diabetes mellitus, Type II. In the Veteran's certificate of death, diabetes mellitus was identified as a significant condition contributing to death, but not resulting in the underlying cause. Notably, the Veteran's primary care physician who certified the certificate of death believed that the Veteran's service- connected diabetes mellitus "certainly" acted directly or indirectly as a contributing factor in the Veteran's death. This opinion is corroborated by two other physicians; Drs. B.F. and R.G., who provided the September 2009 opinion letters. These physicians agreed that the Veteran's service-connected diabetes mellitus contributed to cause the Veteran's death. The only medical evidence of record which states that the cause of the Veteran's death was not materially or substantially due to his service-connected diabetes is the July 2008 VA medical opinion. However, the Board finds the September 2009 physicians' opinions more persuasive than the July 2008 VA medical opinion. Where there is conflicting medical evidence, it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). In this case, the September 2009 physicians' opinions are persuasive since they are based on the clinical observations and findings made during the course of the treatment provided to the Veteran for his liver condition that led to his death in August 2005. In contrast, the VA examiner never had the opportunity to examine the Veteran and the opinion offered was based solely on the review of the Veteran's medical records. Further, the July 2008 VA examiner failed to address whether the service-connected diabetes aggravated cholangiocarcinoma or PSC that were found to be the primary and underlying cause of the Veteran's death. By contrast, the Veteran's former treating physician, Drs. E.W. and B.F. considered whether the Veteran's diabetes aggravated his liver conditions that ultimately led to his death. Dr. E. stated that the Veteran's service-connected diabetes weakened his condition such that he probably was less tolerant to fight off immunologically the ravages of the liver disease process. Additionally, Dr. F. stated that the Veteran's diabetes mellitus was not only a contributing factor in his death and but was a major factor in his total system shutdown from the cholangiocarcinoma and cholangitis. The Board therefore finds the opinions offered by the Veteran's treating physicians more persuasive and the persuasive medical evidence supports the appellant's claim that the Veteran's service-connected diabetes mellitus contributed substantially or materially to the cause the Veteran's death. Accordingly, applying the doctrine of reasonable doubt, the Board finds that a disability incurred in military service contributed substantially or materially to cause the Veteran's death. As such, service connection for the cause of the Veteran's death is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs