Citation Nr: 1308202 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-18 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Victoria L. Collier, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from February 1978 to February 1998. He died in January 2003; the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction of the appellant's claim has been transferred to the RO in Atlanta, Georgia. The appellant testified before a VA Decision Review Officer (DRO) in August 2009 and before the Board at a November 2012 hearing conducted via videoconference. Transcripts of these hearings are of record. FINDINGS OF FACT 1. The Veteran died in January 2003. His death certificate lists his immediate cause of death as malignant thymoma. 2. The competent evidence of record shows that the Veteran's thymic carcinoma was manifest during his active duty service. 3. The Veteran's death is causally related to his period of active service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 1312, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2012). 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. 38 C.F.R. § 3.312(b). In the case of contributory cause of death, it must be shown that a service-connected disability contributed substantially or materially to cause death. 38 C.F.R. § 3.312(c)(1). The Veteran died in January 2003; the primary cause of his death was reported on the death certificate as malignant thymoma. The Veteran was not service-connected for this disability at the time of his death. The appellant asserts that the Veteran's malignant thymoma is related to his active service. Specifically, she contends that this condition had its onset during his active service. As an aside, the Board also notes that there has been the assertion that the Veteran's fatal cancer was due to his exposure to ionizing radiation in service. See, e.g., October 2001 and October 2002 rating decisions (denying service connection for thymic cancer to include as due to ionizing radiation). Certain regulations apply when a claimant claims disability due to radiation exposure. See 38 C.F.R. §§ 3.309, 3.311 (2012). Indeed, the Veteran's service records reflect that he retired from a nuclear submarine force and there are several DD Forms 1141 of record documenting the Veteran's occupational exposure to ionizing radiation. However, in this case, the Board need not address whether the Veteran's cause of death may be related to his occupational exposure to ionizing radiation as the Board finds that there is sufficient evidence to grant the benefits sought on the basis of direct service connection. In this regard, service connection may be established on a direct basis for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where a Veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Malignant tumors are defined as chronic diseases. Service connection is granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A review of the Veteran's service treatment records is silent for treatment for, or a diagnosis of, thymic cancer during active service. Indeed, the appellant does not contend the Veteran actually manifested any related symptomatology during active service. Rather, post-service treatment records note the Veteran first presented to the Eastern Maine Medical Center (EMMC) in October 2000, approximately 31 months following service separation, with symptoms of a pressure sensation in the neck with dizziness. See October 2000 EMMC History and Physical Examination Report. Following a number of clinical evaluations and tests, he was diagnosed with stage IV-A thymic carcinoma, a tumor originating in the thymus gland. By the time of his death in January 2003, the Veteran's cancer had spread to a number of other organs. In support of her claim, the appellant has submitted two statements from Dr. T. Lynch, the Director of the Yale University Cancer Center and the Veteran's oncologist. In a February 2009 statement, Dr. Lynch noted the advanced stage (IV-A) of the Veteran's thymic carcinoma at the time of diagnosis in October 2000, and opined that it is "highly likely" that the Veteran suffered from this disease at the time of service separation in February 1998. In this regard, Dr. Lynch noted that the fact the cancer presented at stage IV-A just 20 months after leaving service means it is highly likely there were malignant cells present in the thymus at the time the Veteran left active service. In a subsequent statement, dated September 2009, Dr. Lynch corrected the timeframe under consideration, noting the Veteran was diagnosed approximately 31 months following service separation, but again opining that it is "highly likely" that the Veteran did have elements of the disease at the time he left active service. The record is void of competent medical evidence, to include a negative etiological opinion, that would suggest a finding that the Veteran's malignant thymoma did not have its onset during his period of active service. In light of Dr. Lynch's February and September 2009 statements, the Board finds the preponderance of the evidence weighs in favor of a finding that the Veteran's thymic carcinoma is etiologically related to his active service. Therefore, as malignant thymoma is listed on the death certificate as the immediate cause of the Veteran's death, service connection for the cause of the Veteran's death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs