Citation Nr: 1318791 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-31 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for cause of death for purposes of receiving dependency and indemnity compensation. REPRESENTATION Appellant represented by: Shannon L. Brewer, Attorney at Law ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from May 1946 to January 1970. He died in July 2006. The appellant claims to be his surviving spouse. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Pittsburg, Pennsylvania. The matter was first before the Board in April 2010, at which time it was remanded for additional development and adjudication. Upon return, the Board issued a decision in May 2011 denying the appeal. Subsequently, the appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in June 2012 approving a joint motion for remand (JMR) by the appellant and the VA Office of General Counsel, requesting to vacate the May 2011 Board decision and remand the case back to the Board for further development and adjudication. The appeal is presently before the Board for action consistent with the instructions contained in the JMR. In February 2013, the Board requested a medical expert opinion from a health care professional in the Veterans Health Administration (VHA) of the Department of Veterans Affairs. The Board determined that such an expert opinion was necessary to address the complex medical questions raised by the appeal. 38 C.F.R. §20.901(a), (d). The appellant was notified in February 2013 that the Board intended to seek such an opinion. The Board received the opinion in May 2013. Although the appellant has not been provided a copy of the opinion or 60 days to submit a response, the Board's favorable disposition below renders such lack of notice moot. See 38 C.F.R. §§ 20.903(a), 20.1304(c). FINDINGS OF FACT 1. The Veteran died in July 2006, and the Certificate of Death lists the immediate cause of death as liver failure due to cirrhosis. 2. At the time of the Veteran's death, he was service-connected for impairment of rectal and anal sphincter control, adenocarcinoma of the prostate, otitis externa, allergic rhinitis, sinusitis, functional gastrointestinal disease, and impotency. 3. Although the Veteran was not service-connected for diabetes mellitus at the time of his death, the record shows that he had in-country service in the Republic of Vietnam during the Vietnam Era and was diagnosed with diabetes mellitus; therefore service connection for diabetes mellitus is presumed. 4. Diabetes mellitus is shown as likely as not to have contributed substantially or materially to the Veteran's death. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is contending that service connection is warranted for the cause of the Veteran's death. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either (1) the principal (primary) cause of death or (2) a contributory cause of death. To be considered a principal (primary) cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to a veteran's death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). In the present case, the appellant specifically contends that the Veteran's liver failure due to cirrhosis is a result of, or was aggravated by, diabetes mellitus, which is of service origin. The Board finds after careful consideration that the evidence is at least in a state of relative equipoise on all material elements of the appellant's claim, for the following reasons. First, the record before the Board includes the Veteran's the Certificate of Death, which lists the immediate cause of death as liver failure due to cirrhosis. Second, the record shows that the Veteran had in-country service in the Republic of Vietnam during the Vietnam Era and he was subsequently diagnosed with diabetes mellitus. Accordingly, service connection for diabetes mellitus is presumed. 38 C.F.R. §§ 3.307, 3.309. These material facts are not in dispute. The central question in dispute concerns whether the Veteran's diabetes caused or contributed to the cirrhosis causing his death. On this question, the record presents conflicting evidence. For instance, VA opinions in March 2008 and December 2010 indicate that there was no relationship between the Veteran's cirrhosis and diabetes. Other opinions, such as in July 2008, April 2010, and May 2010, indicate a possible relationship. In light of this conflicting record, the Board referred the matter for an expert medical opinion, which was received in May 2013. The Board finds that this May 2013 expert opinion favorably and persuasively establishes that diabetes mellitus contributed to the Veteran's cirrhosis. Specifically, the May 2013 expert offered five opinions. First, that there is no way to say for sure that a service-connected condition was definitely the cause of the Veteran's death. Second, that there is not enough evidence to say that any principal/contributory cause of the Veteran's death had clinical onset during or was related to his military service. Third, there is not enough evidence to say that a principal/contributory cause of his death was caused by a service-connected disability. Fourth, that there is not enough evidence to say without assumptions that a principal/contributory cause of the Veteran's death was aggravated by a service-connected condition. Fifth, and finally, the VA expert answered that yes, it is medically possible that diabetes mellitus was the underlying etiology of the Veteran's cirrhosis; "[a]t the same time it is not likely at all that the treatment of diabetes mellitus caused/contributed to the causation of diabetes mellitus [sic]." Most importantly here, with regard to his fifth opinion, the VA expert set forth three assumptions which the expert found likely to be correct in this Veteran's particular case. First, that it is reasonable to assume that the Veteran had cryptogenic cirrhosis, meaning the cause was not known. Second, that the Veteran's cryptogenic cirrhosis resulted from non-alcoholic fatty liver disease (NAFLD) and nonalcoholic steatohepatitis (NASH). Third, that diabetes caused/contributed to NAFLD/NASH. The expert emphasized that these are assumptions, and there is no perfect way that this sequence of events could be proved or disproved beyond all doubts. As an initial matter, it is important to note that the May 2013 expert opinion was provided by a VA attending physician in the Gastroenterology/Hepatology section of a VA medical center. This demonstrates that the physician has the expertise necessary to address the central question of causation in this case. Also important, the expert (a) reviewed the Veteran's pertinent history, (b) discussed the medical role of diabetes mellitus in causing cirrhosis, and (c) provided a copy of a recent position paper of the American Gastroenterological Association. By identifying the information used to form the opinion, the Board is satisfied that the expert based the opinion on an accurate and comprehensive factual and medical foundation. Finally, and most significantly, the expert documented the medical reasoning used to arrive at the opinion. The Board is satisfied that the expert relied on sound reasoning in reaching the opinion. In short, the May 2013 expert opinion is factually accurate, fully articulated, and based on sound reasoning. Consequently, it is highly persuasive and is, therefore, assigned significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that this May 2013 medical expert opinion establishes that it is as likely as not that the Veteran's diabetes mellitus caused or contributed to the cirrhosis, which resulted in liver failure. It raises a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. Accordingly, because the balance of positive and negative evidence does not satisfactorily prove or disprove the claim, a reasonable doubt arises regarding all material elements of the claim. Consequently, service connection is warranted for the cause of the Veteran's death, and the claim is granted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312; Fagan, 573 F.3d at 1287. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Here, the disposition is fully favorable to the appellant. Therefore, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished. ORDER Entitlement to service connection for cause of death for purposes of receiving dependency and indemnity compensation is granted. ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs