Citation Nr: 1332372 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 09-41 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Lori Chism, Attorney ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from November 1953 to November 1956, and from June 1960 to August 1972. The Veteran died in October 2007. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has reviewed the physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In April 2011, the Board denied service connection for the cause of the Veteran's death. The appellant appealed the decision to the U.S. Court of Appeals for Veterans' Claims (Court). In a September 2012 Memorandum Decision, the Court vacated the Board's decision and remanded the claim to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran's death certificate lists metastatic colon cancer as the immediate cause of death, with manic depressive illness, depressed type, listed as a significant condition contributing to death but not resulting in the underlying cause. No autopsy was performed. 2. At the time of the Veteran's death, service connection was in effect for manic depressive illness, evaluated as 70 percent disabling; residuals of a fractured left distal fibula with degenerative changes, rated as 10 percent disabling; and a hiatal hernia, rated as zero percent disabling. 3. The service-connected manic depressive illness substantially or materially contributed to the cause of the Veteran's death. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the cause of the Veteran's death was incurred as a result of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.301, 3.303, 3.307, 3.309, 3.310, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The issue of service connection for the cause of the Veteran's death has been considered with respect to VA's duties to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Given the favorable outcome of the appeal, which is a full grant of benefits sought, the appeal has been substantiated, obviating the need for further discussion of how VA fulfilled the duties to notify and assist with respect to the issue. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection for Cause of Death Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (2013). The Board has thoroughly reviewed all the evidence in this case. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran); see also Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly autopsy reports. 38 C.F.R. § 3.312(a). In order to establish service connection for the cause of death, generally, 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. The service-connected disability will be considered as 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). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; 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)(1). Service Connection for the Cause of the Veteran's Death Analysis The death certificate of record shows that the Veteran died in October 2007 of metastatic colon cancer, with manic depressive illness, depressed type, listed as a significant condition contributing to death but not resulting in the underlying cause on the death certificate. The death certificate identifies no other causes or significant contributory conditions for the Veteran's death. At the time of the Veteran's death, service connection was in effect for manic depressive illness with a disability rating of 70 percent effective January 31, 2007, among other physical disabilities. In this case, the appellant contends that the Veteran's service-connected manic depressive illness severely impacted his health during the latter part of his life insofar as he descended into a severe depression after being diagnosed with colon cancer in May 2007 and, due to the mental disability, did not have the mental strength or will to take appropriate measures to fight his disease. The appellant has also asserted that the Veteran's manic depressive illness weakened his immune function, thus allowing the colon cancer to develop. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be granted for disability which is proximately due to or aggravated by service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The cause of the Veteran's death, colon cancer, is a malignant tumor and a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the Veteran's service-connected manic depressive illness substantially or materially contributed to the cause of his death. In this regard, the Board notes that the VA reviewing oncologist, who provided the August 2013 VHA medical expert opinion that it was with a less than 50 percent probability that the Veteran's manic-depressive illness was the principal cause of the Veteran's death because metastatic colon cancer was the main cause, was unable to provide a medical opinion on whether the Veteran's service-connected manic depressive illness was a contributory cause of the Veteran's death. The VHA oncologist recommended that a psychiatrist provide such an opinion. Consequently, in August 2013, the Board requested a VHA medical expert opinion from a VA psychiatrist. In the September 2013 VHA medical expert opinion, the VA reviewing psychiatrist opined that there was a greater than 50 percent degree of probability that the Veteran's chronic untreated mental illness of manic depression-depressed phase with psychosis, combined with metastatic colon cancer, led to his death. In support of the medical opinion, the VA reviewing psychiatrist considered the Veteran's report of psychiatric symptoms at the April 2007 VA mental disorders examination and noted that the Veteran admitted suicidal ideation even before being diagnosed with cancer due to the depressed phase of his manic depressive illness, which at the time was not under ongoing active mental health treatment. The VA reviewing psychiatrist wrote that the service-connected disability of untreated manic depressive illness, depressed phase with psychosis, would probably aggravate any new onset of symptoms of depression precipitated by the medical, as well as the psychological, sequela of having cancer. The VA reviewing psychiatrist also noted that it was well known and documented that many patients with chronic mental illness, such as manic depressive-depressed phase with psychosis, do not adhere to recommended treatment, and the lack of adherence is a consequence of the mental illness. The VA reviewing psychiatrist additionally acknowledged that the provided records did not document the reason why the Veteran declined appropriate cancer treatments; however, the Veteran's repeated pattern of not following through with recommended treatment for the depressed phase of his illness was an indicator that the mental illness could have played a role in his refusal to accept VA medical providers treatment recommendations. When answering the question posed by the VA reviewing oncologist regarding whether the manic depressive illness was the main reason for the Veteran failing to have a colonoscopy in the few years prior to his death, the VA reviewing psychiatrist noted that VA medical health services provide clinical reminders to conduct colonoscopy screening for all patients beginning at age 50, and earlier for patients with known risk factors for colon cancer. The VA reviewing psychiatrist wrote that literature suggested that patients with untreated chronic mental illness, including manic depressive illness, do not usually voluntarily accept medical screening procedures and, based on this Veteran's record of non-adherence with recommended mental health treatment, the Veteran probably would not have accepted such a screening procedure due to its nature of infringing upon private body areas. The VA reviewing psychiatrist further noted that, because the Veteran was in the depressed phase of manic depressive illness prior to being diagnosed with cancer, and the depression worsened after the diagnosis was made according to the appellant's report, it was probable that cognitive difficulties, which can be experienced in patients with depression, affected the Veteran's ability to make a sound judgment in regard to chemotherapy benefits, thus leading to a delay in a possible effective chemotherapy treatment and resulting in a fast progression of the cancer and hastening of death. The Board recognizes that the VA reviewing psychiatrist, at times, used speculative terminology when providing supporting rationale for the September 2013 VHA medical expert opinion. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence merely indicating that a claimed disorder "may or may not" be related to service is too speculative to establish any such relationship); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term "could," or in the moving party's case, "may" or "possibly," without supporting clinical data or other rationale, is too speculative in order to provide the degree of certainty required for medical nexus evidence). However, when reviewing the VHA medical expert opinion as a whole, the Board finds that it is adequate and has a sufficient level of certainty to establish the necessary nexus relationship between the manic depressive illness and the cause of the Veteran's death (i.e., colon cancer). The VA reviewing psychiatrist had sufficient facts and data on which to base the medical opinion, and specifically cited lay and medical evidence contained in the record in support of the medical opinion. There is no indication in the record that the evidence relied upon was not accurate. The VA reviewing psychiatrist also cited several medical articles discussing various factors regarding the relationship between the Veteran's service-connected psychiatric disability and the cause of his death, i.e., colon cancer. The VA reviewing psychiatrist has medical training and expertise in the area of mental disabilities and provided a well-reasoned explanation for the medical opinion. Because the Court determined that the February 2008 VA medical opinion and June 2010 VA addendum medical opinions were inadequate, there are no other adequate medical opinions of record that address the likelihood of a relationship between the Veteran's manic depressive illness, depressive type, and the hastening of colon cancer. For these reasons, the September 2013 VHA medical opinion is of great probative value. In consideration of the foregoing, the Board finds that the evidence is in equipoise on the question of whether the Veteran's service-connected manic depressive illness substantially or materially contributed to the Veteran's death from colon cancer. Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Because the appeal for service connection of the cause of the Veteran's death has been granted based on evidence showing that the service-connected manic depressive illness substantially or materially contributed to the cause of the Veteran's death (i.e., colon cancer), analysis of other potential theories for service connection for the cause of the Veteran's death, such as presumptive service connection for a chronic disease due to chronic symptoms of colon cancer during service or continuous symptoms of colon cancer since service, and direct service connection for colon cancer under 38 C.F.R. § 3.303(d), is not required. There remain no questions of law or fact for the Board to decide. 38 U.S.C.A. § 7104 (West 2002). ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs