Citation Nr: 1337782 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-30 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from July 1953 to December 1971. He died in October 2009, and the Appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In August 2013, the Board requested an expert opinion via the Veteran's Health Administration (VHA). An opinion was provided in September 2013 and has been associated with the record. FINDINGS OF FACT 1. The Veteran died in October 2009 as the result of metastatic renal cell cancer. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. Other significant conditions contributing to the Veteran's death included renal failure on dialysis, coronary artery disease (CAD) and hypertension. 4. The Veteran served in Vietnam, and is presumed to have been exposed to herbicides. 5. The Veteran's CAD is presumed to be related to exposure to herbicides during active duty in Vietnam. 6. The Veteran's CAD, which was related to his active military service, played a material and causal role in the Veteran's death. CONCLUSIONS OF LAW 1. CAD is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable where further assistance would not aid the appellant in substantiating her claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the appellant in substantiating her claim. Legal Criteria Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2013). 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) (2013). 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) (2013). A 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) (2013); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). When the disorder involves an active process affecting a vital organ such as the cardiovascular system, VA regulations emphasize that careful consideration should be given to the contribution of such a disorder from the viewpoint of "whether there were resulting debilitating effects and general impairment of health to an extent that would render a person materially less capable of resisting the effects of the other disease or injury primarily causing death." However, it is also recognized that there are in some situations primary causes of death that are "so overwhelming" that death would be anticipated regardless of the Veteran's coexisting disorders. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C.A. § 1116(a) (West 2002) provides presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. It also provides presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C.A. § 1116(b)(1). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Analysis The appellant contends that the Veteran had CAD resulting from his toxic herbicide exposure while serving in the Republic of Vietnam, and that this disorder also contributed to his death. The death certificate indicates that the immediate cause of the Veteran's death in October 2009 was metastatic renal cell cancer. Other noted significant conditions contributing to death were renal failure on dialysis and coronary artery disease (CAD). As noted in the Board's August 2013 VHA opinion request, the fact that CAD was mentioned in the death certificate suggests that the disorder might have impacted the Veteran's ability to effectively combat his renal cancer. At the time of the Veteran's death, he was not service-connected for any disability. In a May 2010 statement, the Veteran's private physician, J.B. PA.C opined that the Veteran died from a combination of kidney failure, cancer and heart failure. In a November 2010 statement, VA physician, M.B.K., opined that the Veteran died from metastatic renal adenocarcinoma, and that this underlying CAD did not substantially contribute to the Veteran's death due to metastatic renal cell carcinoma. Neither the Veteran's private physician, nor the VA physician provided rationales for their opinions. As such, they lack probative value and are inadequate for evaluation purposes. In September 2013, a VHA specialist furnished an opinion addressing this case. The specialist noted that during his last hospital admission, the Veteran had hypotension of unclear etiology, and his CAD may have been a contributing factor to his hemodynamic instability. He noted further that prior to his admission in October 2009, the Veteran had good functional status according to records, and the hemodynamic instability may have contributed to his functional impairment. The specialist also noted that in patients with metastatic renal cell cancer, the functional performance status has been used to compare the effectiveness of different therapies and to assess the prognosis in individual patients. Finally, the specialist noted that the medical records showed that oncology treatment was not provided for the Veteran's metastatic adenocarcinoma due to his performance status and comorbidities (CAD, hypertension, hyperlipidemia, and end stage renal disease on dialysis). Based on this evidence, the specialist opined that the Veteran's CAD likely resulted in debilitating effects and general impairment of health to an extent that would have rendered him materially less capable of resisting the effects of his renal cancer that ultimately caused his death. The Board notes that there is no contrary probative medical opinion of record. As noted, at the time of his death, the Veteran had been diagnosed with CAD. Per recent regulations, ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents. Ischemic heart disease, includes CAD, thus the Board finds that the Veteran's CAD is presumed to be related to service, based on herbicide exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e); Notice, 75 Fed. Reg. 53202 (Aug. 31, 2010). Furthermore, based on the September 2013 VHA opinion and the other evidence of record, showing that the Veteran's CAD is determined to have been a contributory cause of the Veteran's death, the Board finds that service connection for the cause of the Veteran's death is in order. The claim is granted in full. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs