Citation Nr: 1334749 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-25 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to December 1945, and was a prisoner of war of the German Government from December 1944 to April 1945. He died in October 1994. The appellant is his widow. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, in October 2008 and September 2009. The RO found that new and material evidence had not been submitted to reopen the claim for entitlement to service connection for the cause of the Veteran's death. The appellant provided testimony during a hearing before the undersigned at the RO in July 2012 (Travel Board hearing). In August 2012, the Board remanded the question of reopening the prior claim. In June 2013, the Board found that new and material evidence had been received to reopen the claim, and remanded the appeal for additional development. No further development is necessary. A transcript is of record. Although there is also a paperless Virtual VA file, all pertinent documents are associated with the paper claims file, with the exception of the appellate brief, which has been considered by the Board. FINDINGS OF FACT 1. The Veteran died in October 1994 from metastatic cancer of the bladder, due to or a consequence of small bowel obstruction; such conditions were initially demonstrated many years after service and are not related to a disease or injury in service, to include the October 1943 jeep accident and POW experiences. 2. The fatal bladder cancer and small bowel obstruction were not caused or aggravated by a service connected disease or disability. The service-connected disabilities at the time of the Veteran's death did not materially contribute to death, combine to cause death, aid or lend assistance to the production of death, or impair his health to an extent that would render him materially less capable of resisting the effects of the primary cause of death. CONCLUSION OF LAW The criteria to establish DIC on the basis of service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1112, 1310, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In the context of a claim for dependency and indemnity compensation (DIC), to include service connection for cause of death, proper notice must include a statement of any conditions for which the veteran was service-connected at the time of death, an explanation of the evidence and information required to substantiate a claim based on a previously service-connected condition, and an explanation of the evidence and information required to substantiate a claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The appellant was advised in an August 2008 letter, prior to the initial unfavorable adjudication of the current claim, of the general requirements to establish her claim, as well as the responsibilities of the appellant and VA in obtaining such evidence, and the criteria to establish an effective date. Although the appellant was not advised specifically of the disabilities for which the Veteran was service-connected at the time of death, she has shown actual knowledge of such disabilities, including by arguing that the Veteran's cause of death of bladder cancer was related to the urethral sphincter for which he was service-connected at the time of death. The appellant's September 2012 Travel Board hearing testimony, and discussion of the required evidence and possibly missing evidence by the undersigned, also focused on the elements of this claim. Cf. Bryant v. Shinseki, 23 Vet. App. 488 (2010). There is no argument or indication of any prejudice as a result of notice deficiencies, and the appellant has had a meaningful opportunity to participate in the adjudication of her claim. The essential fairness of the adjudication was not affected by any possible notice defects. See Shinseki v. Sanders, 129 S.Ct. 1696, 1705-06 (2009); Sanders v. Nicholson, 487 F.3d 881, 889 (2007). As such, adequate notice has been provided under the circumstances of this case. Concerning the duty to assist, the Veteran's service treatment records, death certificate, and all identified, available post-service records have been obtained and considered. Both the paper claims file and the Virtual VA paperless claims have been reviewed. Efforts were made to obtain identified non-VA records for treatment in the Veteran's lifetime based on information provided by the appellant, with no success. In particular, as directed in the August 2012 remand, VA asked the appellant to identify and authorize VA to obtain any outstanding records from the Veteran's private provider, Dr. H.W. Efforts were made to obtain the records based on the information provided, with no success. The appellant as notified of these unsuccessful efforts. Further, the appellant indicated that this provider was at a VA facility from 1992 to 1994, and VA records were previously obtained for that period. As such, this remand directive was substantially satisfied. Additionally, as directed in the June 2013 remand, VA obtained available outstanding service treatment records, including inpatient and outpatient treatment for Veteran's injury to the urethra. Although the National Personnel Records Center (NPRC) indicated that the Veteran's records were "fire-related," substantial records were obtained concerning such injury and treatment. These appear to be complete, albeit singed in some places. The AOJ also obtained another VA opinion as directed by the Board. The examiner answered all posed questions concerning whether the service-connected disabilities caused or contributed to cause the Veteran's death by bladder cancer, and whether the Veteran's death was otherwise related to service. The examiner provided explanations for each opinion that reflect a detailed review of all pertinent evidence. There is no argument or indication that the medical evidence is insufficient, or that available evidence remains outstanding. There is no additional notice or assistance that would be reasonably likely to aid the appellant in substantiating her claim. VA has satisfied its duties to inform and assist the appellant at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the appellant will not be prejudiced by a decision. II. Analysis To warrant DIC based on service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal 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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death; there must be not merely a casual connection, but a causal connection to death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection for the cause of death is generally to be determined on the same basis as service connection for compensation under Chapter 11 of 38 U.S.C.A. (38 U.S.C.A. § 1100 et. seq.). 38 U.S.C.A. § 1310(a). A service-connected disability is one that was incurred in or aggravated during active service, or may be presumed to have been incurred during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the in-service disease or injury and the present disability. 38 C.F.R. § 3.304; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Hickson v. West, 12 Vet. App. 247, 253 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. the Veteran died in October 1994. His death certificate reflects the principal cause of death was metastatic cancer of the bladder, due to or a consequence of small bowel obstruction. At the time of his death, the Veteran was service-connected for traumatic injury of the bladder and urethra with stricture, residuals or history of colitis, and healed multiple fractures of the right pelvis, which were the result of an October 1943 incident during service where a jeep rolled over the Veteran. The Veteran was also service-connected for traumatic arthritis of the lumbar and thoracic spine and anxiety neurosis, which were the result of POW injuries. Although the Veteran sought service connection for bladder cancer prior to his death, this claim was denied. His combined ratings were 50 percent effective from December 20, 1945; 20 percent effective from April 4, 1948; 10 percent effective from July 10, 1963, forward; and 60 percent effective from January 15, 1991, forward. The appellant argues that the Veteran's bladder cancer and small bowel obstruction that led to his death are related to his service-connected urethral stricture, residuals of colitis, or other service-connected disorder. The Board will first address possibly applicable presumptive provisions for service connection based on the Veteran's active service. Certain diseases will be presumptively service-connected where the Veteran is a former POW if manifested to a compensable degree at any time after service; however, bladder cancer and bowel obstruction are not among the listed diseases. See 38 C.F.R. §§ 3.307(a)(5), 3.309(c). As such, service connection is not warranted on this basis. Further, cancer of any organ is essentially a malignant tumor. Malignant tumors will be presumed to have been incurred in or aggravated by service as a chronic disease if they manifest to a compensable degree within one year after separation from service, even if there is no evidence of such disease during service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Here, the evidence reflects that the Veteran was first diagnosed with bladder cancer in 1992, many years after his separation from service. As such, service connection is not warranted on this basis. Id. Service connection will be conceded for a chronic disease identified in service and at any time thereafter, but there is no evidence or contention that bladder cancer was present in service. Cf. 38 C.F.R. § 3.303(b). In addition, for chronic diseases a link can be established between the current (or in this case the fatal) disease and service by showing a continuity of symptomatology. Id. In this case the Veteran and his surviving spouse described ongoing symptoms, but they have not contended that these were symptoms of bladder cancer. Instead, they have contended that these were ongoing manifestations of bladder injury that eventually developed in bladder cancer. The Veteran (during his lifetime) and the appellant both assert that he had recurring and persistent urinary symptoms from his injury in service in 1943 until he was diagnosed with bladder cancer in 1992. For example, in December 1992, the Veteran wrote that his bladder condition had plagued him through the years since the injury in service in October 1943, and that he had never received a second operation that was needed to correct the problem. During the July 2012 Board hearing, the appellant testified that the Veteran had urinary symptoms and frequent urinary tract infections throughout their 20-year marriage. The Veteran and his wife, as lay persons, are competent to report observable symptoms of frequent urinary symptoms during his lifetime. See Barr, 21 Vet. App. at 308. Nevertheless, the Board finds the statements by the Veteran and the appellant as to his persistent symptoms or any treatment for urinary tract infection (UTI) are not credible, inasmuch as they are contradicted by contemporaneous medical evidence and the reports of the Veteran's complaints, as discussed below. There are substantial amounts of treatment records documenting his urinary and other symptoms during service, and between service and his diagnosis of bladder cancer. The August 2013 VA examiner summarized the pertinent treatment records and other medical evidence during and after service, as discussed below. The summary is consistent with the Board's independent review of such evidence, and the records contain information contradicting the statements by the Veteran and the appellant. The Board finds the statements for treatment purposes to be more probative, as they were made in order receive proper care. The statements prior to the claims for benefits by the Veteran and the appellant, respectively, and before the denials of such claims, are also more probative, as they were before there was any interest in the outcome of benefits. Additionally, the Veteran and the appellant are not competent as lay persons to say whether any recurrent urinary symptoms were due to a specific diagnosis of urinary tract infection. They are also not competent to offer an opinion as to whether the Veteran's bladder cancer was related to service, or to service-connected disability, to include his urethral stricture or colitis. Rather, these questions require specialized knowledge, training, or experience due to the complex nature of the Veteran's medical history, cancer, and the involved bodily systems. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr, 21 Vet. App. at 308. As such, the appellant's testimony in this regard, as well as the Veteran's testimony and statements prior to his death, is not probative or persuasive. There are several probative medical opinions of record. Prior to his death, in July 1994, the Veteran underwent a VA examination in connection with his claim for higher compensation based on bladder cancer, which he reported was a complication of the 1943 auto accident during service. The examiner reviewed the available records at that time, which included private records concerning bladder cancer from St. Joseph's hospital, a March 1948 record that summarized the Veteran's injuries in October 1943, a reported dilation of the urethral stricture in June 1944, and a cystoscope in September 1945. The examiner opined that urethral stricture itself would not predispose a patient to bladder carcinoma. He explained, however, that if the stricture caused sufficient abnormality of voiding to result in chronic urinary tract infections and/or bladder stones, or to require indwelling catheter, then these events would predispose the patient to bladder cancer. The examiner further indicated that, if the Veteran did not have these problems in the time between service and his cancer diagnosis in 1991, then it was unlikely that his posterior urethral stricture significantly predisposed him to bladder carcinoma. The examiner noted that there was no evidence of bladder injury during service (as opposed to injury to the urethra). This examiner did not appear to thoroughly review treatment records concerning the Veteran's urinary tract from 1948 to 1992, and he did not have the full records from the Veteran's hospitalization in service. In support of her prior claim, the appellant submitted a July 2000 letter from Dr. V.O., who specialized in urologic oncology and general urology. The letter stated, in response to her prior representative's apparent request for an opinion, "I am afraid I cannot tell you that [the Veteran's] bladder cancer could have or might have been related to his previous bladder injury." The service treatment records concerning the Veteran's jeep injury and hospitalization, as well as subsequent treatment during service, are now of record. In an August 2013 report, another VA examiner (an M.D.) reviewed all available lay and medical evidence and gave opinions as to any relationship between the Veteran's cause of death and service or service-connected disabilities. This examiner opined that the Veteran's bladder cancer was less likely than not a result of his service-connected urethral stricture or bladder disability, aggravated by the urethral stricture or bladder disability or otherwise related to the October 1943 jeep injury and surgical treatment in service. The examiner reasoned that urethral stricture alone is not typically recognized as a contributing cause of bladder cancer, and there was no apparent history of bladder stones or indwelling catheter to predispose the Veteran to bladder cancer. The examiner noted that these factors were mentioned as possible causes of bladder cancer by the 1994 VA examiner. The 2013 examiner found that there was also little evidence of a history of chronic or repeated UTIs. He noted the reports of the appellant that the Veteran had various urinary symptoms, quoting her testimony from the July 2012 hearing in detail. The appellant testified that she was married to the Veteran from 1975 until his death, and he had several incidents of bladder or UTIs. She estimated that they occurred 6-7 times per year with intermittent urgency, burning, lower abdominal pain, and hematuria. More specifically, the appellant indicated that the Veteran "bled several times" during their 20 years of marriage. She did not remember whether he needed to urinate more often than most people, but she remembered him having only small amounts of urine at times. She did not remember if he had a sudden need to urinate, but testified to burning on and off, and stated that it "would be more no than yes" as to whether he complained of pain, burning, or other discomfort. She stated that he definitely needed to urinate a lot at night. She also stated that he complained of pain in his lower abdomen, referring to his developing colitis when he was a POW. As noted by the 2013 examiner, service records during and after the Veteran's hospitalization due to the 1943 jeep injury included numerous notations of ruptured or fractured bulbous urethra, but no demonstrated bladder injury. In January 1944, the Veteran was discharged after being hospitalized for three months for ruptured urethra with good recovery, no genitourinary complaints, and negative urine. In March 1944, he was again noted to have negative urinalysis and no further genitourinary difficulties. Urinalysis in August 1944 showed hematuria, and results of a cystoscope about 10 days later in August 1944 showed a normal bladder, and posterior urethra showed slight chronic injection. Urinalysis was negative. The 2013 examiner found that the available post-service records did not contain even a single urinalysis for the period from 1945 to 1991 that demonstrated pyuria or a UTI, although he summarized other pertinent notations concerning the Veteran's urinary tract. He noted that the Veteran did have pyuria in 1945, with urinalysis in October and December 1945 showing "few to many" wbcs (white blood cells). In 1947, however, a genitourinary17 exam "revealed mild urethral stricture with advice for dilatation every 3 months." In a 1948 hospitalization for observation, the Veteran reported "no urinary problems since 1944." The next medical records concerning the Veteran's urinary status are dated in 1963. In July 1963, he reported that after his injury during service, he "bled from the urethra for approximately two years" with treatment until 1949, and that he currently had pains on micturition. He "almost always ha[d] discomfort and sometimes difficulty on micturition." The next reports were in October 1963, noting "Patient has no urinary complaint," with an assessment of posterior urethral stricture mild to moderate. In October 1968, there was an entry of "urine negative for sugar and albumin." In October 1981, a urinalysis was negative for blood with 0-2 wbc/hpf mucus trace. A March 1984 review of systems was marked as negative for urinary symptoms. There are no further reports of urinary symptoms until January 1991. At that time, the Veteran stated during a VA examination that since his 1943 injury, "he has had large quantities of urine. He thinks the frequency has increased a little in the daytime and it is increased during the night to 3-4 times." The Veteran had 17 rbcs/hpf in his urine, and he was diagnosed with bladder cancer in June 1992. As noted above, the 2013 examiner opined that the Veteran's bladder cancer was less likely than not a result of or aggravated by his service-connected urethral stricture or bladder disability, or otherwise related to the jeep injury and treatment in service. This was based on the above medical records, with comparison to the lay statements concerning the Veteran's symptoms related to urethral stricture and urinary symptoms. As noted above, although the appellant reported that the Veteran had frequent UTIs, she is not competent to diagnose this disability. The 2013 examiner opined that the available medical evidence did not support a finding of UTIs, as opposed to general urinary symptoms, even with consideration of the appellant's lay statements concerning the Veteran's observable symptoms. There is also no argument or indication of bladder stones or indwelling catheter. Additionally, the July 1994 examiner explained that urethral stricture would predispose a patient to bladder carcinoma only if it caused sufficient abnormality of voiding to result in chronic UTIs, bladder stones, or required indwelling catheter, and it was unlikely that the urethral stricture significantly predisposed him to bladder carcinoma if such additional problems were not demonstrated. These conditions were not shown in this case, as found by the 2013 examiner. The 2013 examiner further opined that the Veteran's urethral stricture less likely than not contributed substantially or materially to the Veteran's death, combined to cause his death, or aided or lent assistance to the production of Veteran's death from bladder cancer. He reasoned that by the time proximate to the Veteran's death, he had had a cystectomy and urethral stricture was no longer an issue. The urethral stricture was also not the cause of the cystectomy. Additionally, the 2013 examiner opined that the Veteran's other service-connected disabilities less likely than not contributed substantially or materially to his death, combined to cause his death, or aided or lent assistance to the production of his death. The examiner reasoned that it appeared that death was caused by metastatic bladder carcinoma with small bowel obstruction, GI studies in 1992 did not appear to show evidence of colitis, and the Veteran had reported in 1991 that his "last severe attack of colitis" was in February 1984. As such, the examiner did not find evidence that colitis was active around the time of the Veteran's death. More specifically, the examiner noted that records in July 1994 showed extrinsic small bowel masses consistent with metastases of bladder carcinoma and fistula between small bowel and colon. A May 1994 record noted "recurrent pelvic pain and mass ... recurrent bladder cancer." The examiner gave a detailed summary of pertinent treatment records dated from 1984 to November 1993. In July 1963, the Veteran reported that he still suffered from intermittent disabling bouts of colitis and diarrhea. In February 1984, the Veteran reported diarrhea and other symptoms. A March 1984 record then noted no evidence of present or past bowel inflammation by colonoscopy. In December 1991, the Veteran reported daily diarrhea, non-bloody since his release from the POW camp, although he indicated in 1991 that his last attack of severe colitis was in February 1984. An April 1992 record showed no evidence of active inflammatory disease involving the colon and slight, smooth narrowing of the rectum possibly post inflammatory. There was again no evidence of colitis in May 1992. Although this record noted "probably irritable bowel," as noted by the 2013 examiner, the July 1994 review indicated that the Veteran's bowel obstruction was consistent with metastases of bladder carcinoma. The 2013 examiner also stated that the Veteran's other service-connected conditions (arthritis of the spine, anxiety, and residuals of pelvic fracture) were not implicated in or contributed to his death, stating that these conditions typically are not causes of death. For the same reasons, the examiner found that such conditions less likely than not resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of the bladder cancer due to or as a consequence of small bowel obstruction that primarily caused his death. The Board notes that none of the Veteran's service-connected disabilities at the time of death involved active processes affecting vital organs and they were not rated 100 percent, such that they might be generally thought to have debilitating effects or general impairment of health to render him materially less capable of resisting the effects of the primary cause of death. See 38 C.F.R. § 3.312(c)(3). Finally, the 2013 examiner opined that the Veteran's POW experiences less likely than not contributed substantially or materially to his death, combined to cause his death, or aided or lent assistance to the production of his death. He reasoned that death was caused by metastatic bladder cancer, and no known circumstances of the Veteran's POW period (including malnutrition, beating on the back, cut fingers, and nipple injection) are typically recognized as causes of bladder cancer. Significantly, the 2013 examiner indicated that a VA urologist had reviewed his finding and conclusions as summarized above, and concurred with the conclusions. The urologist also indicated that it was not likely that the Veteran's urethral stricture condition could have increased the risk of developing bladder cancer related to smoking. The examiner noted that the Veteran had a smoking history, which is recognized as a cause of bladder cancer. A November 1993 record shows that the Veteran reported smoking for 30 years, but none for the prior 10 years. The 2013 examiner also noted, as stated above, that Dr. V.O. (a private urologic oncologist) declined to link the Veteran's bladder cancer to his service-connected injury in a July 2000 letter, stating that he could not say that the bladder cancer "could have or might have been related to his previous bladder injury." The 2013 examiner's findings and opinions are highly probative, as they reflect consideration of all pertinent lay and medical evidence, and are support by well-reasoned rationale based on medical expertise and experience, as well as consideration of medical opinions by other pertinent specialists. Accordingly, the more probative evidence does not show a link between the Veteran's cause of death of metastatic bladder cancer and small bowel obstruction and his service or service-connected disability, either on a causal or contributory basis. In sum, the evidence does not show that service connection is warranted for the principal cause of the Veteran's death of metastatic bladder cancer on either a direct or a presumptive basis. Further, the evidence does not establish that his service-connected urethral stricture, colitis, residuals of pelvic fracture, arthritis of the lumbar and thoracic spine, or anxiety neurosis caused or contributed to his death, to include by impairing his health to such an extent that he was materially less capable of resisting the effects of his metastatic bladder cancer. As such, service connection is not warranted for the cause of the Veteran's death. 38 C.F.R. § 3.312. As the preponderance of the evidence is against service connection for the cause of the Veteran's death, reasonable doubt does not arise, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs