Citation Nr: 1335540 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-01 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Daughter ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran had active service from December 1968 to July 1970. The Veteran died in January 2007 and the appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The appellant requested a hearing before a decision review officer (DRO) in connection with the current claim, which was held in March 2008. The appellant and daughter testified at that time and the hearing transcript is of record. FINDINGS OF FACT 1. At the time of the Veteran's death, service connection was in effect with a disability rating of 100 percent for squamous cell carcinoma of the larynx, status post total laryngectomy with bilateral neck dissections. 2. On the Veteran's official Certificate of Death, as amended, the Cause of Death was Liver Cancer with Metastasis of the Larynx. 3. The evidence shows that the Veteran's service-connected squamous cell carcinoma of the larynx, status post total laryngectomy with bilateral neck dissections, contributed to his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. § 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants the appellant's claim in full. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The appellant contends throughout the pendency of her claim that the Veteran's death resulted from his service-connected squamous cell carcinoma of the larynx, status post total laryngectomy with bilateral neck dissections, or from his exposure to herbicides in service. As the former contention is sufficient to grant the claimed benefit, the latter contention regarding herbicide exposure need not be discussed. Dependency and indemnity compensation is available to a surviving spouse who can establish, among other things, which the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310. Service connection for the cause of the Veteran's death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312. Service connection may be established for the cause of a Veterans death when a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110 and 1112. A service-connected disability is the principal cause of death when that 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). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. Id. Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran died in January 2007. The amended death certificate lists the cause of the Veteran's death as liver cancer with metastasis of the larynx. At the time of the Veteran's death, service connection was in effect for squamous cell carcinoma of the larynx, status post total laryngectomy with bilateral neck dissections, and it was rated 100 percent disabling. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Here, in a September 2013 VHA specialist's opinion obtained by the Board, the medical expert determined that the Veteran had pulmonary metastases which may have been recurrent squamous cell carcinoma. While these metastases themselves did not contribute significantly to the Veteran's death, their existence shows that the Veteran's squamous cell carcinoma at least as likely as not affected a vital organ-here, the lungs-and, as discussed above, his squamous cell carcinoma of the larynx was evaluated at 100 percent disabling at the time of his death. As such, debilitation is assumed. Id. Further, it is generally reasonable to hold that a service-connected condition accelerated death where such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). For the reasons discussed above, the medical expert's report suggests a likelihood that the Veteran's service-connected squamous cell carcinoma at least as likely as not affected a vital organ, the lungs. Moreover, as it was rated at 100 percent disabling, it is reasonable to conclude that the Veteran's service-connected squamous cell carcinoma of the larynx, status post total laryngectomy with bilateral neck dissections, was of itself of a progressive or debilitating nature. Id. In addition to the above, the Board finds compelling the September 2013 medical expert's finding that "the laryngeal cancer may have hastened the Veteran's death." Where, as here, a reasonable doubt arises as to the gravamen of the appellant's claim, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Because the September 2013 medical expert's finding provides the basis for reasonable doubt, service connection for the cause of the Veteran's death is granted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs