Citation Nr: 1318186 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-10 744 ) 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: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty July 1954 to May 1958. He died in June 2006. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appellant testified before a Decision Review Officer (DRO) and the undersigned Veterans Law Judge at hearings held at the RO in December 2008 and September 2012, respectively. Transcripts of both hearings are associated with the claims file. In April 2013, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) as set forth in VHA Directive 1602.01 dated February 4, 2013. In May 2013, the appellant was provided a copy of the opinion and given 60 days to review the medical opinion and send any additional evidence or argument in support of her claim. She responded that same month informing VA that she had no further argument or evidence to submit and requested that the appeal proceed immediately to the Board for adjudication. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issue on appeal. FINDINGS OF FACT 1. The Veteran died in June 2006; the immediate cause of death was end stage liver disease and hepatic encephalopathy due to alcoholic cirrhosis. An autopsy was not performed. 2. At the time of his death, the Veteran was service-connected for bladder cancer, status post cystoprostatectomy and continent urinary diversion due to radiation exposure, evaluated as 60 percent disabling. 3. The competent medical evidence of record indicates that it is at least as likely as not that service-connected bladder cancer was a contributory cause of death. CONCLUSION OF LAW Resolving all doubt in the appellant's favor, the criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the favorable disposition of the claim on appeal, the Board finds that all notification and development action needed to fairly adjudicate this appeal has been accomplished. Merits of the Claim The appellant is claiming entitlement to service connection for the cause of the Veteran's death. See 38 U.S.C.A. § 1310. Generally, the cause of a veteran's death will be considered to be 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). In order to constitute a contributory cause of death, it must be shown that a service-connected disability contributed substantially or materially to cause death; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a casual connection. Id. The Veteran's death certificate indicates that he passed away in June 2006 as a result of end stage liver disease and hepatic encephalopathy due to alcoholic cirrhosis. It is the appellant's contention that the Veteran's service-connected bladder cancer, status post cystoprostatectomy and continent urinary diversion, contributed to cause his death. Specifically, she asserts that the Veteran's health was never the same following bladder cancer and that he continued to struggle with infection and disease that contributed to his death. Medical evidence reflects that the Veteran was diagnosed with and treated for bladder cancer in 1989. By 1989, the Veteran had been diagnosed with cirrhosis/liver problems, and noted by his physicians to have a history of heavy alcohol use. Following treatment for bladder cancer the Veteran's medical records show continued problems with urinary flow, urinary tract infections, and treatment with diuretics (Lasix) and antibiotics (Macrobid and Bactrim). Medical evidence also indicates continued decline in the Veteran's liver disease, characterized in the record as alcoholic cirrhosis/liver disease. In April 2006, the Veteran was admitted for increasing abdominal pain. He was diagnosed with bacterial infections, treated, and released. Approximately one month later, he returned with "acute on chronic" (sic) renal failure, which was noted as likely due to his restarting Lasix upon returning home. There was also evidence of an urinary tract infection. The Veteran was discharged on June 2, 2006 in stable condition. Less than two weeks later, he returned with a reported history of increasing somnolence for one week. His family noted that he had been doing well, but had stopped taking his lactulose approximately one week earlier. He was diagnosed with altered mental state due to probable hepatic encephalopathy, but clinical records indicate the etiology was unclear and may have been chronic liver disease, inadequate lactulose, infectious etiology (including urinary tract infections), or an upper gastrointestinal bleed. The Veteran eventually developed tonic-clonic seizures and expired during hospitalization. In developing the current claim, VA sought a medical opinion as to whether the Veteran's bladder cancer (and its residuals) may have caused or contributed to cause his death. The January 2009 opinion, however, contains no more than a conclusory statement that the Veteran's death was not the result of bladder cancer or prior treatment for bladder cancer. No explanation for this opinion is provided. Hence, this opinion lacks probative value as to the question of etiology. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ('[An adequate] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.' (citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007))). Further, following the January 2009 opinion, additional evidence was submitted by the appellant, including VA treatment records showing that encephalopathy may have been related to an urinary tract infection associated with residuals of bladder cancer. The appellant also submitted information regarding the Veteran's multiple medications to include information that Bactrim "can cause serious, even fatal, side effects such as . . . liver damage." In light of the foregoing, the Board sought a medical expert opinion from the VHA in February 2013. Specifically, it sought a hepatologist's opinion regarding whether the Veteran's service-connected bladder cancer, to include any residuals and medications used to treat residuals of that disorder, contributed to cause his death. The hepatologist was directed to review the claims file, in particular the post-service VA and non-VA medical records, medication information, and the January 2009 VA opinion, prior to making any medical conclusions. The April 2013 VHA opinion reflects that, following a review of the Veteran's claims file, it was the physician's opinion that it is at least as likely as not that service-connected bladder cancer and its residuals contributed to cause his June 2006 death. In this regard, the physician first noted that Bactrim, which was prescribed to the Veteran over the years to prevent and treat urinary tract infections, has been shown to cause liver damage. Thus, the opinion was offered that it is at least as likely as not that the Veteran's service-connected bladder cancer, which required chronic antibiotic treatment, may have permanently aggravated his end-stage liver disease through direct toxicity to the liver. Additionally, the April 2013 opinion notes that it was at least as likely as not that recurrent urinary tract infections related to service-connected bladder cancer caused or aggravated the Veteran's hepatic encephalopathy, an immediate cause of death. The hepatologist stated that infection is a common etiology of worsening hepatic encephalopathy. Finally, the physician opined that it was at least as likely as not that service-connected bladder cancer and its residuals contributed to a general impairment and debilitation of health, making it more difficult for the Veteran to resist the effects of his end-stage liver disease and hepatic encephalopathy. In this regard, she noted that the urinary diversion procedure contributed to multiple urinary tract infections and multiple courses of antibiotics and additional minor surgical procedures over many years. She also indicated that service-connected bladder cancer likely accelerated the Veteran's hepatic encephalopathy through repeated urinary tract infections and relative dehydration due to diuretic therapy. In evaluating the probative weight to afford to the April 2013 VHA opinion, the Board notes that this opinion was based on a review of the Veteran's complete medical history and records. Additionally, the physician cited to a number of general medical principles that were relevant to this history of disease. Given these circumstances, the Board finds the April 2013 opinion probative as to the question of whether the Veteran's service-connected bladder cancer and its residuals were a contributory cause of death. Therefore, resolving reasonable doubt in favor of the appellant, the Board finds that service connection for the cause of the Veteran's death should be granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs