Citation Nr: 1111096 Decision Date: 03/21/11 Archive Date: 04/05/11 DOCKET NO. 10-01 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bridgid D. Cleary, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to February 1970, including service in the Republic of Vietnam from October 1967 to October 1968. The Veteran died in April 2008. The appellant is his widow. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge in March 2010. A transcript of the hearing is associated with the claims file. Subsequent the hearing, the appellant submitted additional evidence with a waiver of initial RO consideration in April 2010. See 38 C.F.R. § 20.1304 (2010). The appellant has argued that ten years prior to his death, the Veteran had submitted a claim of service connection for several disabilities. This previous claim is not contained in the record. FINDINGS OF FACT 1. The Veteran died on April [redacted], 2008, at the age of 61; the immediate cause of the Veteran's death as shown on the death certificate was colon cancer. No other conditions were identified as significant in contributing to the Veteran's death and autopsy was performed. 2. At the time of his death, the Veteran was not service-connected for any disabilities. 3. The Veteran served in the Republic of Vietnam during the Vietnam Era and subsequently developed non-Hodgkin's lymphoma. 4. In a March 2010 supplement to the Veteran's death certificate, his physician added non-Hodgkin's lymphoma as an underlying cause of death. CONCLUSION OF LAW A disability of service origin, to wit non-Hodgkin's lymphoma, contributed substantially or materially to cause the Veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.309(e), 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board awards service connection for cause of death; this represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. The Board observes that the Veteran died on April [redacted], 2008, at his home in Mount Sterling, Ohio. His death certificate lists colon cancer as the cause of death. An autopsy was not performed. In a March 2010 supplement to the Veteran's death certificate, his physician added non-Hodgkin's lymphoma as an underlying cause of death. Service connection may be granted for the cause of the Veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 C.F.R. § 3.312(a). At the time of his death, the Veteran was not service-connected for any disabilities. Again, the Veteran was not service-connected for colon cancer or non-Hodgkin's lymphoma at the time of his death, which are the two conditions implicated in his amended death certificate. Thus, the Board must first address whether he was entitled to service connection for either disability. Direct service connection requires (1) competent and credible evidence of a disability; (2) competent and credible evidence of an in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The private treatment records and the death certificate establish the disability of colon cancer. However, the Veteran's service treatment records do not show a diagnosis of colon cancer during his military service. The medical evidence of record shows that the Veteran was diagnosed with colon cancer in August 2005, 35 years after he left service. Thus, there is no in-service event to which the Veteran's colon cancer can be linked and direct service connection is not warranted. In this case, the appellant has argued that the Veteran's fatal colon cancer was related to his non-Hodgkin's lymphoma. As service connection of the underlying condition is a prerequisite for secondary service connection, and as a finding of service connection for non-Hodgkin's lymphoma, now listed as a contributing cause of death, would be sufficient in itself to warrant service connection for the Veteran's death, the question of secondary service connection for colon cancer is moot. The medical evidence of record shows a diagnosis of non-Hodgkin's lymphoma. The Veteran's service records also show service in the Republic of Vietnam from October 1967 to October 1968. As the Veteran served in the Republic of Vietnam during the Vietnam Era, he was entitled to presumptive service connection for non-Hodgkin's lymphoma. See 38 C.F.R. §§ 3.307, 3.309(e). In light of the amended death certificate, the Board finds that the Veteran's presumptively service-connected non-Hodgkin's lymphoma was a contributory cause of the Veteran's death. Accordingly, service connection for the cause of the Veteran's death is warranted. ORDER Entitlement to service connection for cause of the Veteran's death is granted, subject to governing criteria applicable to the payment of monetary benefits. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs