Citation Nr: 1329569 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-42 843 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the Veteran's death for purposes of receiving Dependency and Indemnity Compensation (DIC). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Appellant and D.S. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from September 1967 to September 1969, including in combat in the Republic of Vietnam. He died in September 2008. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Appellant's claim of service connection for the cause of the Veteran's death for purposes of receiving Dependency and Indemnity Compensation (DIC). The Appellant disagreed with this decision in August 2010. She perfected a timely appeal in October 2010 and requested a Travel Board hearing. A Travel Board hearing was held at the RO in Newark, New Jersey, in June 2011 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Because the Appellant currently lives within the jurisdiction of the RO in Newark, New Jersey, that facility retains jurisdiction in this appeal. FINDINGS OF FACT 1. The record evidence, to include the Veteran's death certificate, shows that he died in September 2008 of cardiopulmonary arrest due to pulmonary edema, gallbladder cancer with metastasis, and deep vein thrombosis. 2. The Veteran's service personnel records show that he had active combat service in the Republic of Vietnam and received multiple combat wounds to his bilateral lower extremities and left middle finger. 3. At the time of the Veteran's death, service connection was in effect for residuals of a gunshot wound of the right thigh and hip involving Muscle Group (MG) XIII, residuals of a gunshot wound of the left thigh MG XIV, scar residuals of a gunshot wound of the right calf and right ankle with involvement of sural nerve and MG XI, residuals of a gunshot wound of the left middle finger, scars of the right thigh associated with residuals of a gunshot wound of the right thigh and hip involving MG XIII, and for scars of the left thigh associated with residuals of a gunshot wound of the left thigh MG XIV. 4. The record evidence is in relative equipoise as to whether the cause of the Veteran's death is related to active service. CONCLUSION OF LAW The Veteran's death was caused by, or substantially or materially contributed to, a disability incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1154, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the appellant of information and evidence necessary to substantiate the claim and redefined its duty to assist him in obtaining such evidence. 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2012). With respect to the Appellant's service connection claim for the cause of the Veteran's death, given the favorable disposition of the action here, which is not prejudicial to her, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Law and Regulations The Appellant contends that the cause of the Veteran's death is related to active service. She specifically contends that the Veteran's in-service combat wounds incurred while in the Republic of Vietnam caused or contributed to his fatal deep vein thrombosis by weakening his blood vessels in those extremities. To establish service connection for the cause of the Veteran's death, evidence must be presented which in some fashion links the fatal disease to a period of military service or an already service-connected disability. See 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312 (2012); Ruiz v. Gober, 10 Vet. App. 352 (1997). In short, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the case of any Veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Satisfactory lay or other evidence under section 1154(b) has been defined as "credible evidence." See Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996). These provisions deal with the question of whether a particular disease or injury occurred in service; that is, what happened then, and not the question of either current disability or nexus to service (both of which generally require competent evidence). In other words, these provisions in 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) do not establish presumptive service connection for a combat Veteran. Rather, they relax the evidentiary requirements for noting what happened in service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521, 524 (1996). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). Because none of the causes of the Veteran's death are explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to the Appellant's claim. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background The Veteran's DD Form 214 confirms that he served in the Republic of Vietnam for 3 months during active service. This form also shows that he was awarded the Vietnam Service Medal w/2 Bronze Service Starts, the Republic of Vietnam Campaign Medal, the Purple Heart, and the Combat Infantryman Badge. The Veteran's available service treatment records show that he incurred multiple gunshot wounds of the thighs, right posterior leg (or calf), and left middle finger in April 1968 when he was injured by hostile fire near Hoc Mon, Vietnam. These injuries were considered to have been incurred in the line of duty. He was placed on a temporary physical profile in July 1968 for multiple fragment wounds of the right buttock, thighs, and right calf. He subsequently was placed on a permanent physical profile for these wounds in December 1968. These records also show that, at his separation physical examination in July 1969, the Veteran stated, "I was wounded in both legs + they bother me frequently." Physical examination showed multiple scars and fragment wounds on both legs, thighs, and right ankle. In an undated statement included in the claims file, the Appellant asserted that the Veteran's in-service combat injuries to his legs caused his fatal deep vein thrombosis. She also asserted that the Veteran's fatal gallbladder cancer was caused by his in-service herbicide exposure while in Vietnam. A review of private treatment records from Bayshore Community Hospital, Holmdel, New Jersey, shows that, on September 1, 2008, M.K., M.D., was consulted for the Veteran's gallbladder carcinoma. Dr. M.K. stated: [The Veteran] had been recently diagnosed with stage IV adenocarcinoma of the bladder. He had presented in July 2008 with a two-month history of abdominal pain that had been localized to the right back, right upper abdominal quadrant, and epigastrium. An ultrasound of the abdomen had reported gallstones and areas of decreased hepatic echogenicity. An MRI of the abdomen revealed three areas of abnormal signal within the liver and these appeared related to the gallbladder. A computerized tomographic scan of the abdomen and pelvis suggested gallbladder carcinoma with direct invasion of the liver...A needle aspiration of a hepatic lesion on 07/21/2008 reported adenocarcinoma consistent with gallbladder carcinoma. Dr. M.K. noted that he had suggested that the Veteran undergo chemotherapy. Following his second dose of chemotherapy in August 2008, the Veteran was diagnosed as having superficial thrombophlebitis of the left calf. "Because of this physical finding, an ultrasound of the left lower extremity was ordered and demonstrated a deep vein thrombosis involving the left iliac, common femoral, and greater saphenous veins." The Veteran was hospitalized and placed on intravenous heparin. He also had a celiac plexus neurolysis and "develop[ed] weakness, diaphoresis, hypotension, and tachycardia" which led to his transfer to the intensive care unit (ICU). While in the ICU, the Veteran had "mottling of both lower extremities and [his] blood pressure remained relatively low." His renal function also deteriorated. The Veteran's blood clot "had extended to involve the right lower extremity as well." He elected a do not resuscitate status and to enter hospice care after being advised of his treatment options by Dr. M.K.. A history of "[l]ower extremity bullet wounds bilaterally sustained while serving with the U.S. Army in Vietnam in 1968" was noted. Physical examination on September 1, 2008, showed that the Veteran was chronically ill, in no acute distress, and "[h]e appears to have lost weight since I last evaluated this patient prior to his hospital discharge on 08/13/2008," anicteric skin, tachycardic but regular heart rate, a soft and non-tender abdomen with normoactive bowel sounds, some mild abdominal distention, no rebound tenderness, marked scrotal edema, a 3-4+ bilateral lower extremity edema, and ace bandages wrapped around the lower extremities. An ultrasound of the abdomen showed "multiple partially calcified gallstones with thickening of the gallbladder wall." The impression was Stage IV gallbladder carcinoma. Dr. M.K. stated, "[The Veteran] is terminally ill and has an extremely poor performance status." The Veteran was advised to reenter a hospice program, renew his do not resuscitate status, and that no further attempt at chemotherapy was recommended. A review of the Veteran's death certificate shows that he died on September 8, 2008, as a result of cardiopulmonary arrest due to pulmonary edema, gallbladder cancer with metastasis, and deep vein thrombosis. In a May 2010 opinion, a VA clinician stated that he had reviewed the Veteran's claims file, including his service treatment records and post-service VA and private treatment records. This clinician noted the Veteran's in-service gunshot wounds and multiple service-connected disabilities. This clinician also noted the Veteran's post-service diagnoses of stage IV adenocarcinoma of the gallbladder and deep vein thrombosis in July 2008 just prior to his death. This clinician opined that it was not at least as likely as not that any of the Veteran's service-connected disabilities "had any relation to the Veteran's gallbladder cancer or DVT or death." This VA clinician also opined that it was not as least as likely as not that any of the Veteran's service- connected disabilities "had materially contributed to or was related to the direct cause of death or deep vein thrombosis that was cited on the death certificate." The rationale for these opinions was: The Veteran developed acute DVT (deep vein thrombosis) due to hypercoagulable state due to advanced metastatic adenocarcinoma of the gallbladder. Moreover, symptoms of DVT started after he received treatment for his adenocarcinoma of the gallbladder. Adenocarcinomas are associated with hypercoagulable syndrome, which is the increase in deep vein thrombosis, pulmonary emboli, and clots in unusual sites. Biopsy of liver (gallbladder) showed adenocarcinoma with necrosis. Superficial thrombophlebitis in patients with adenocarcinoma is recognized as Trousseau's syndrome, a form of hypercoagulable state in adenocarcinomatous patients. The DVT and gallbladder carcinoma have no relation to the military service-related injury sustained 40 years ago. In a July 2010 letter to the Appellant's service representative, Dr. M.K., the Veteran's treating oncologist prior to his death, stated that, prior to his death, the Veteran "had advised me that while serving with the Army in 1968 he had sustained bullet wounds to his lower extremities." Dr. M.K. noted that the Veteran had been diagnosed as having deep vein thrombosis prior to his death. Dr. M.K. opined, "Because of the known association of trauma with the subsequent risk of deep vein thrombosis, I cannot rule out the bullet wound injury as a contributing factor to the development of deep vein thrombosis in this case." In statements on her October 2010 VA Form 9 (substantive appeal), the Appellant contended that the Veteran's deep vein thrombosis contributed to his death. The Appellant testified at her June 2011 Board hearing that the Veteran's fatal gallbladder cancer had been very aggressive. See Board hearing transcript dated June 24, 2011, at pp. 6. She also testified that, after he began chemotherapy for his gallbladder cancer, the Veteran began experiencing pain in both legs. Id. She testified further that the Veteran's legs had bothered him constantly since his service separation. Id., at pp. 9. She finally testified that the Veteran had been advised by his doctors to discontinue chemotherapy because he was on blood thinners. Id. Analysis The Board finds that the evidence is in relative equipoise on the issue of whether the cause of the Veteran's death is related to active service. The Appellant has asserted consistently that the Veteran's trauma from his in-service combat wounds of the bilateral lower extremities caused or contributed to his fatal deep vein thrombosis by weakening the blood vessels in those extremities and making him more susceptible to experiencing deep vein thrombosis decades later. The record evidence both supports and weighs against the Appellant's assertions regarding the contended etiological relationship between the cause of the Veteran's death and active service. The Veteran's service personnel records and service treatment records clearly show that he had honorable active combat service in Vietnam and received multiple gunshot wounds of the bilateral lower extremities during such service. The lay evidence concerning the impact of the trauma experienced by the Veteran as a result of his in-service combat wounds, including weakening his blood vessels in the bilateral lower extremities, is consistent with the facts and circumstances of his acknowledged honorable combat service in Vietnam. Accordingly, the Board concludes that the lay evidence is sufficient to establish that the Veteran's trauma from his in-service combat wounds also weakened his blood vessels in the bilateral lower extremities at that time. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). There is medical evidence that supports and weighs against the Appellant's claim of service connection for the cause of the Veteran's death. The Veteran's available service treatment records do not indicate that he complained of or was treated for deep vein thrombosis (or any other cause of his death) at any time during service, including while in combat in Vietnam. The post-service evidence contains both positive and negative nexus opinions concerning the contended etiological relationship between the cause of the Veteran's death and active service. As noted above, in May 2010, a VA clinician opined that there was "no relation" between the Veteran's deep vein thrombosis (DVT), which began after he initiated chemotherapy treatment for his gallbladder cancer, and active service. This clinician also opined that that it was not at least as likely as not that any of the Veteran's service-connected disabilities had caused or contributed to his DVT or any other cause of his death. The rationale for these opinions was that the Veteran's DVT was acute, associated with adenocarcinomas (such as the Veteran's adenocarcinoma of the gallbladder), developed as a result of a hypercoagulable state due to his adenocarcinoma of the gallbladder, and "is recognized as Trousseau's syndrome, a form of hypercoagulable state in adenocarcinomatous patients." By contrast, in July 2010, Dr. M.K., the Veteran's treating oncologist prior to his death, opined that, given "the known association of trauma with the subsequent risk of deep vein thrombosis, I cannot rule out the bullet wound injury as a contributing factor to the development of deep vein thrombosis in this case." Having reviewed the record evidence, the Board finds that there is an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim of service connection for the cause of the Veteran's death. See 38 C.F.R. § 3.102. The lay evidence concerning in-service trauma from the Veteran's combat wounds weakening the blood vessels of the bilateral lower extremities has been found to be credible because it is consistent with the facts and circumstances of his honorable active combat service in Vietnam. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). A VA clinician provided a negative nexus opinion in May 2010 concerning the contended etiological relationship between the cause of the Veteran's death and active service. The Veteran's treating oncologist provided a positive nexus opinion in June 2010 concerning the contended etiological relationship between the Veteran's in- service combat wounds and related trauma increasing his risk of developing the deep vein thrombosis which ultimately led to his death. In summary, after resolving all reasonable doubt in the Appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted. ORDER Entitlement to service connection the cause of the Veteran's death, for purposes of receiving DIC, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs