Citation Nr: 1318950 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-44 498 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318. ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1975. The Veteran died in July 2008; the appellant is his widow. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the VA RO in St. Louis, Missouri. In January 2010, the appellant withdrew her request for a hearing before a member of the Board. These issues were remanded by the Board for further development in May 2011. Subsequently, the Board requested additional medical opinions from the Veterans Health Administration (VHA) with regard to the matters on appeal. As the claims are either being granted in full or rendered moot, the Board finds no prejudice to the appellant in proceeding to adjudicate the claims as done below, without providing her with notice of the medical opinions that were obtained in the case or referring such information to the agency of original jurisdiction (AOJ) for consideration or considering whether the Board's remand instructions were appropriately followed. See 38 C.F.R. §§ 20.903(a), 20.1304(c) (2012); see Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. FINDINGS OF FACT 1. The Veteran's death certificate reflects that he died on July [redacted], 2008, and lists chronic respiratory failure as the immediate cause of his death. Emphysema and alcohol dependence were listed as contributing factors. 2. At the time of his death, the Veteran was service connected for prostate cancer (secondary to presumed herbicide exposure); right nasal vestibule papilloma, p.o.; and varicose veins of the right leg, stripped. 3. Resolving doubt in favor of the appellant, the Veteran's varicose veins of the right leg, which were caused by his active duty service, were a contributory cause of his death. CONCLUSIONS OF LAW 1. Service connection for cause of death is warranted. See 38 U.S.C.A. §§ 101(24), 1101, 1131, 1310, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.312 (2012). 2. The appellant's claim of entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is moot. 38 U.S.C.A. §§ 1318, 7104 (West 2002); 38 C.F.R. §§ 3.22, 20.101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim for service connection for cause of the Veteran's death, the benefit sought on appeal has been granted, as discussed below. Additionally, as a result of this grant, the appellant's claim for DIC benefits pursuant to 38 U.S.C.A. § 1318 is dismissed as moot, as discussed below. As such, the Board finds that any error related to the VCAA on these claims is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As a result of the Board's decision to grant entitlement to service connection for the cause of the Veteran's death, any failure on the part of VA to notify and/or develop the claims pursuant to the VCAA cannot be considered prejudicial to the appellant. Therefore, the Board will proceed to a review of the claims on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for the cause of the Veteran's death. The appellant is seeking entitlement to service connection for cause of the Veteran's death. The Veteran's death certificate reflects that he died on July [redacted], 2008, and lists chronic respiratory failure as the immediate cause of his death. Emphysema and alcohol dependence were listed as contributing factors. To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). In cases of service connection for the cause of death of the Veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the Veteran to die; however, the last two requirements for a service-connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2012). The service-connected disability will be considered 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. 38 C.F.R. § 3.312(b) (2012). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or 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. 38 C.F.R. § 3.312(c) (2012). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). 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. 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. At the time of his death, the Veteran was service connected for prostate cancer (secondary to presumed herbicide exposure); right nasal vestibule papilloma, p.o.; and varicose veins of the right leg, stripped. The appellant essentially contends that the Veteran's death was hastened by his service-connected end stage prostate cancer which was not treated because it was so advanced at the time of his diagnosis and because of his respiratory disorder. Several alternate theories of entitlement have also been put forth, to include whether the Veteran had lung cancer at the time of his death that caused or contributed to his death, and whether chronic obstructive pulmonary disease (COPD), emphysema, or respiratory failure was related to the Veteran's service, including his presumed herbicide exposure. Further, the record indicates that the Veteran was diagnosed with ischemic heart disease prior to his death (per a VA physician who reviewed the claims file and offered a medical opinion in December 2011), which is a disease subject to service connection secondary to herbicide exposure, and which could be considered as having potentially caused or contributed to the Veteran's death. A review of the record indicates that the Veteran was treated for sores and ulcerations on his legs and cellulitis beginning in early spring of 2008. The Veteran was admitted to the VA Medical Center (VAMC) in Kansas City for extensive treatment for his condition. The records indicates that the Veteran remained at the VAMC until the end of June 2008 at which time he was sent home for hospice care. The Veteran remained under hospice care until his death. A review of the VA outpatient treatments dating from April 2004 reflects diagnoses of severe COPD, hypertension, tobacco abuse, alcohol abuse, and prostate cancer. While the Veteran's VA outpatient treatment reports do not reflect a diagnosis of lung cancer, private records from Crossroads Hospice reflect that the Veteran was admitted to hospice care in late June 2008 with a diagnosis of lung cancer. A medical opinion was obtained from a VA physician in December 2011. The physician concluded that the Veteran had ischemic heart disease prior to his death and he opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The physician noted that this is verified by cardiology notes and echocardiogram (EKG) of record. The examiner found that the Veteran's ejection fraction was mildly decreased to 45 percent and that it is therefore unlikely that his ischemic heart disease contributed to his death. The physician opined that the Veteran's prostate cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that the prostatic cancer was diagnosed in 2007 after the Veteran was diagnosed with severe and endstage COPD. He noted that the Veteran's death occurred in July 2008 and prostatic cancer is typically very slow growing and it is unlikely that it contributed to the cause of death. The examiner opined that COPD and emphysema were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale for the opinion is that there is no evidence that COPD and/or emphysema are related to or caused by exposure to dioxin. Finally, the examiner concluded that there is no evidence in the claims file that the Veteran had lung cancer. However, he failed to reference the pertinent records from Crossroads Hospice which reflect such a diagnosis. In light of the examiner's failure to provide an adequate rationale for his conclusions, and in light of the conflicting medical evidence of record, a VHA medical opinion was requested in November 2012, which, among other things, asked the examiner to opine as to whether the Veteran's service-connected right nasal vestibule papilloma or varicose veins of the right leg contributed substantially or materially to the cause of the Veteran's death. In March 2013, a VHA medical opinion was rendered. The examiner noted that he completed a detailed, thorough review of the medical records. He determined that there is a 50 percent or greater probability that chronic venous insufficiency aided or lent assistance to the production of death. Chronic venous insufficiency that was not able to be managed well predisposed him to cellulitis which led to his hospitalization and chronic respiratory failure. While chronic venous insufficiency was not a direct cause of death, it did likely contribute to his overall decompensation, and was one of many factors that led to his need for hospice care. In light of the fact that the Veteran was service connected for varicose veins of the right leg, stripped, at the time of his death, and the March 2013 VHA opinion determined that there is a 50 percent or greater probability that chronic venous insufficiency aided or lent assistance to the production of death, the Board concludes that there is at least an approximate balance of positive and negative evidence as to whether a disability caused by the Veteran's active duty service contributed to his death. Thus, resolving doubt in favor of the appellant, the Board concludes that service connection must be granted for the Veteran's cause of death. 2. Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318. The appellant raised entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 as an alternative theory of entitlement to service connection for the cause of the Veteran's death. In light of the grant of benefits described above, the Board concludes that this aspect of the appellant's claim is rendered moot. Entitlement under 38 C.F.R. § 1310 is granted in full. No additional benefit (monetary or otherwise) can be gained under 38 C.F.R. § 1318, nor does any controversy remain. Accordingly, the appeal as to the claim of entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is dismissed as moot. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. The appeal as to DIC benefits pursuant to 38 U.S.C.A. § 1318 is dismissed as moot. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs