Citation Nr: 1328827 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-15 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from June 1966 to May 1972 and from February 1986 to March 1987. The Veteran died in July 2007 and the Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2013, the Board requested an expert medical opinion from the Veterans' Health Administration (VHA). See 38 C.F.R. § 20.901 (2012). An opinion was received in June 2013. That development having been completed, the claim is now ready for appellate review. FINDINGS OF FACT 1. The Veteran died in July 2007. The immediate cause of death was a neuroendocrine tumor. 2. The Veteran was exposed to herbicides during service. 3. The Veteran suffered from three diseases that are presumptively service connected as due to exposure to herbicides: diabetes mellitus, type 2, lung cancer, and prostate cancer. 4. The Veteran's lung cancer substantially contributed to his death; the Veteran's diabetes mellitus, type 2, aided to the production of death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Appellant, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Entitlement to Service Connection for the Cause of the Veteran's Death The Appellant seeks entitlement to service connection for the cause of the Veteran's death. She contends that the Veteran's cause of death, listed as neuroendocrine tumor, was due to his previous lung and prostate cancer. 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 the principal or contributory cause of death. 38 C.F.R. § 3.312(a). There must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999). 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. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause 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 the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the Veteran's death. See 38 C.F.R. § 3.312. 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). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or in whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Appellant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Regulations pertaining to herbicide exposure provide that if a Veteran served on active duty in Vietnam, during the Vietnam era, the Veteran is presumed to have been exposed to a herbicide agent (e.g., Agent Orange) unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). These regulations also stipulate the diseases for which service connection may be presumed due to herbicide exposure. 38 C.F.R. §§ 3.3.07(a)(6), 3.309(e). Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), diabetes mellitus, type 2, and prostate cancer are presumed due to herbicide exposure. Id. The Veteran's service records were reviewed. Service personnel records indicate the Veteran served in Vietnam from August 1966 to August 1967. As such, exposure to herbicides is conceded. Post-service records were reviewed. Treatment records indicate the Veteran was diagnosed with prostate cancer in June 2006. In June 2007, it was noted that he had uncontrolled diabetes. Also in June 2007, the Veteran was diagnosed with lung cancer, and it was reported that given the Veteran's history of prostate cancer, the lung metastatic lesions likely had a prostate origin. See June 2007 treatment note. In July 2007, he underwent imaging of his abdomen and pelvis, which demonstrated either pancreatic metastatic deposits or a primary pancreatic neuroendocrine tumor. Later, it was noted that the Veteran had a newly diagnosed high-grade endocrine carcinoma, with metastatic disease of his lungs probably from a primary pancreatic source. A VA medical opinion was obtained in August 2008. The examiner noted that in June 2006, the Veteran was diagnosed with prostate cancer and in June 2007, he had an abdominal computed tomography (CT) scan with multiple pulmonary nodules. The examiner noted that the following month, in July 2007, the Veteran had an open-lung biopsy that showed high-grade neuroendocrine tumor with a probable primary being in the pancreas. The examiner stated that high-grade neuroendocrine tumors are not related to adenocarcinoma of the prostate, and as such, the Veteran's death was not caused by or a result of his prostate cancer or his exposure to herbicides. In May 2013, the Board requested an expert medical opinion from the VHA. An opinion was received in June 2013. The examiner stated that after a detailed review of the Veteran's records, it is less likely than not that the Veteran's prostate cancer contributed to death. Importantly, however, the examiner opined that it is more likely than not that the Veteran's lung cancer substantially contributed to the Veteran's death and it is more likely than not that the Veteran's diabetes mellitus, type 2, aided in the production of death. The examiner explained that the Veteran's medical records suggest malignancy of primary lung origin as it would be unusual for primary pancreatic, small bowel or any other gastrointestinal neuroendocrine tumor to cause such extensive metastatic disease in the chest, without any metastatic lesions in the liver or retroperitoneal adenopathy. The examiner also stated that the Veteran had a clinical picture of ectopic ACTH/cortisal production, which is also consistent with one of the presentations of neuroendocrine lung cancer. The examiner also opined that the Veteran's uncontrolled diabetes contributed to his death by making him more immunocompromised and susceptible to severe infections, as evidenced by the infections of pneumonia, influenza and severe respiratory failure with bilateral infiltrates during his stay in the hospital. The Board finds service connection for the cause of the Veteran's death is warranted. Evidence indicates that the Veteran was exposed to herbicides during active service and that he later developed lung cancer, diabetes mellitus, type 2, and prostate cancer, all of which are presumptively service-connected diseases. The Veteran's cause of death was listed as a neuroendocrine tumor. A VA examiner has indicated that the Veteran's lung cancer substantially contributed to his death, as it is likely that the lung cancer was the primary origin of the neuroendocrine tumor. See June 2013 VHA opinion. The examiner has also opined that the Veteran's diabetes mellitus, type 2 aided in the production of death, as it likely made him immunocompromised and susceptible to infections. Id. Based on all the evidence of record, the Board finds the evidence is in equipoise and the criteria for service connection for the cause of the Veteran's death are met. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs