Citation Nr: 1307233 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 11-01 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to dependency, indemnity and compensation (DIC) on the basis of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1961 to July 1982, including service in the Republic of South Vietnam. The appellant is his widow--the surviving spouse. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a December 2009 rating decision. The record reflects that the Department of Veterans Affairs (VA) Milwaukee Pension Management Center processed the appellant's claim although the Regional Office (RO) in New Orleans, Louisiana, is her servicing RO. In January 2012, the appellant testified before the undersigned via a videoconference hearing. A transcript of that hearing is of record. At the hearing, the appellant submitted additional evidence directly to the Board accompanied by a signed written waiver of the RO's initial consideration of this evidence. As a result of the Board's action below, the issue of entitlement to increased burial benefits has been raised and as such, it is referred to the Agency of Original Jurisdiction for appropriate corrective action. FINDING OF FACT Service connected prostate cancer contributed to the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to DIC on the basis of service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating her claim. II. Laws and Regulations The surviving spouse of a veteran who has died of a service-connected or compensable disability will be entitled to receive DIC. 38 U.S.C.A. § 1310 (West 2002); Wray v. Brown, 7 Vet. App. 488 (1995). The death of the veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2012). The appellant will be entitled to service connection for the cause of death if it is shown that the service-connected disabilities contributed substantially or materially to cause death; that they combined to cause death; or that they aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1) (2012). Service-connected disabilities of a static nature involving muscular or skeletal functions and not materially affecting other vital body functions will not be held to have contributed to death resulting primarily from some other cause. 38 C.F.R. § 3.312(c)(2) (2012). The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C.A. § 1310 (West 2002). Issues involved in a claim for Dependency and Indemnity Compensation [DIC] are decided without regard to any prior disposition of those issues during the veteran's lifetime. 38 C.F.R. § 20.1106 (2012). Additionally, the Court has stated that: [I]n cases where the primary cause of death is so "overwhelming" that death would have resulted regardless of the existence of a service-connected disability, a service-connected condition may be found to be a contributory cause of death where that condition has had a "material influence in accelerating death" because it "affected a vital organ and was of itself progressive or debilitating [in] nature". Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992). Also the regulatory criteria pertaining to service connection for the cause of death provide as follows: (a) General. The death of a service member will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the service member, including, particularly, autopsy reports. (b) Principal cause of death. The service-connected disability will be considered as the principal [primary] cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. (c) Contributory cause of death. (1) 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. (2) Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. (3) 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. 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. (4) 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 (2012). III. Discussion In February 2008, a private physician reported that he was treating the Veteran for prostate cancer. The therapy included androgen deprivation in the form of Eligard injections. In September 2008, the New Orleans RO issued a rating action that granted service connection for prostate cancer associated with herbicide exposure. The effective date of the grant was September 19, 2007, and a 100 percent disability rating was assigned. Unfortunately three weeks later, the Veteran died. During 2007 and 2008, the Veteran underwent frequent periods of hospitalization and was treated for chronic obstructive pulmonary disease and fractures of the fibula and right hip. He experienced respiratory failures and was found to be in a debilitated state. These records do not mention prostate cancer. He was released from hospital and received nursing care at home. Then, per the Certificate of Death, the Veteran died on October [redacted], 2008. The immediate cause of the death was listed on the certificate as right lower lobe pneumonia due to chronic obstructive pulmonary disease due to or a consequence of a "debilitated condition" and muscular dystrophy. The Certificate of Death also listed adenocarcinoma of the prostate associated with herbicide exposure was a significant condition contributing to death. In February 2009, the appellant's claim was reviewed by a VA nurse practitioner. She opined that it was not at least as likely as not that the Veteran's service-connected prostate cancer materially contributed to, or caused, the Veteran's death. Her rationale was that the death certificate listed prostate cancer as a contributory cause of death but not resulting in the underlying cause of death. She also commented that the prostate cancer appeared to be under control and there was no evidence to indicate that the cancer was out of control. She noted his other significant disabilities. There are no other medical opinions or hypotheses contained in the claims folder. With regard to specific evidence, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a claims file review, as it pertains to obtaining an overview of a veteran's medical history, is not a requirement for private medical opinions. A review of the claims file by a VA examiner, without more, does not automatically render the VA examiner's opinion competent or persuasive since the claims file is a tool to assist in familiarity for the physician with the claims file, and conversely a private medical opinion may not be discounted solely because the opining clinician did not review the claims file as there are other means by which a physician can become aware of critical medical facts, such as a history of treating the veteran for an extended period of time and/or reviewing pertinent medical literature. The relevant focus is on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. In sum, in Nieves-Rodriguez, the Court indicated that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. The death certificate is unaccompanied by any rationale as to the basis for finding that prostate cancer contributed to the Veteran's death, but was provided by a medical doctor, who by definition had more training than the nurse practitioner who provided the VA opinion. The VA medical opinion is based largely on the fact that prostate cancer was not listed as a cause of death but as a condition that contributed to death. This listing however, tracks the regulation, which provides for service connection for the cause of death on the basis of service connected disabilities that contribute, rather than cause death. 38 C.F.R. § 3.312(c). In short, the rationale does not support a conclusion that prostate cancer did not contribute to the Veteran's death. The medical opinion also states that the prostate cancer had been stabilized with therapy, but no specific evidence was cited to support this conclusion. The contemporaneous treatment records are silent on this question. The February 2008 report shows that less than a year before the Veteran's death, prostate cancer was under active treatment without any indication that it was under control. The opinion also points to the significant conditions for which the Veteran was being treated and that ultimately caused his death, but this does not eliminate the possibility that prostate cancer played a role in hastening death. When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also 38 C.F.R. § 3.102 (2012). The evidence is, at least, in equipoise. Resolving reasonable doubt in the appellant's favor, the Board concludes that prostate cancer materially contributed to the Veteran's death. As such, service connection for the cause of the Veteran's death is warranted. 38 C.F.R. §§ 3.102, 3.312 (2012). ORDER Entitlement to payment of DIC on the basis of service connection for the cause of the Veteran's death is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs