Citation Nr: 1607977 Decision Date: 03/01/16 Archive Date: 03/09/16 DOCKET NO. 12-20 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to death pension. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as secondary to service connected depression. 3. Entitlement to service connection for esophageal / gastric cancer, claimed as secondary to GERD. 4. Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to July 1970. Unfortunately, the Veteran died in October 2008. The appellant filed a claim for Dependency and Indemnity Compensation (DIC), death pension, and accrued benefits by a surviving spouse in November 2008. The evidence reflects that the appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia, which denied entitlement to service connection for the cause of the Veteran's death, and denied entitlement to service connection for GERD and esophageal / gastric cancer for accrued benefits purposes. The RO denied entitlement to death pension in a June 2009 letter. Thereafter, in a January 2016 memorandum, the RO found that the appellant qualifies as a proper substitute claimant for the Veteran. As such, because the appellant has been substituted for the Veteran, the claims of entitlement to service connection for GERD and esophageal / gastric cancer have been recharacterized as reflected on the cover page. Jurisdiction over this case was subsequently transferred to the VARO in St. Petersburg, Florida. In March 2015, the appellant testified during a video teleconference hearing before the undersigned at the St. Petersburg RO; a transcript of that hearing is of record. FINDINGS OF FACT 1. At her March 24, 2015, Board hearing, which was prior to the promulgation of a decision in the appeal, the appellant withdrew her appeal as to the issue of entitlement to death pension. 2. The Veteran's GERD was proximately due to his service-connected depression. 3. The Veteran's esophageal / gastric cancer was proximately due to his now service-connected GERD. 4. The Veteran's death was proximately due to his now service-connected esophageal / gastric cancer. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to death pension have been met. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for entitlement to service connection for the Veteran's GERD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 3. The criteria for entitlement to service connection for the Veteran's esophageal / gastric cancer have been met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Death Pension At her March 2015 Board hearing, the appellant indicated that she was withdrawing her appeal as to the issue of entitlement to death pension. See Board Hearing Transcript, at 2. As this appeal was withdrawn on the record at a hearing, the Board does not have jurisdiction over it and it must be dismissed. 38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.204. Service Connection for GERD and Esophageal / Gastric Cancer The appellant essentially contends that the Veteran's GERD is related to treatment for his service-connected depression, and that his esophageal / gastric cancer is related to his GERD. See December 2009 Notice of Disagreement, July 2012 VA Form 9; Board Hearing Tr. at 4-6. While service connection is warranted where a current disability resulted from an injury or disease incurred in or aggravated by active military service, 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a), service connection must also be granted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Board finds that entitlement to service connection for GERD and esophageal / gastric cancer is warranted in this case. In a September 2005 rating decision, the Veteran was granted service connection for depression and was assigned a ten percent disability rating for this disability. The evidence reflects that the Veteran was taking medication for this disorder. For example, in a February 2005 letter, the Veteran's treating physician, Dr. P.G., wrote that the Veteran had increasing problems with anxiety and depression, which necessitated medical therapy with Zoloft. In a March 2015 letter, Dr. P.G. wrote that, based on his review of the treatment records, it was more likely than not that the Veteran's depression and/or medication for depression caused his GERD. He noted that the relationship of depression to GERD is well documented in the medical literature. As Dr. P.G. explained the reasons for his conclusion based on an accurate characterization of the evidence of record and with citation to medical literature, his opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Notably, there is no contrary medical opinion in the record. As such, the preponderance of the evidence supports the appellant's claim that the Veteran's GERD was proximately due to his service-connected depression. Accordingly, because all three elements required to establish service connection have been met, the Board finds that service connection for GERD is warranted, and the appellant's claim is granted. Turning to esophageal / gastric cancer, in his March 2015, letter, Dr. P.G. also stated that it was more likely than not that the Veteran's esophageal / gastric cancer was secondary to his GERD. He noted that the relationship between GERD and esophageal cancer is well documented in the medical literature. As Dr. P.G. explained the reason for this conclusion with citation to medical literature, his opinion is entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. Notably, there is no contrary medical opinion in the record. As such, the preponderance of the evidence supports the appellant's claim that the Veteran's esophageal / gastric cancer was proximately due to his now service-connected GERD. Accordingly, because all three elements required to establish service connection have been met, the Board finds that service connection for esophageal / gastric cancer is warranted, and the appellant's claim is granted. Cause of Death The appellant essentially contends that the Veteran's esophageal / gastric cancer caused his death. See December 2009 Notice of Disagreement, July 2012 VA Form 9; Board Hearing Tr. at 11-12. 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(a); 38 C.F.R. § 3.5(a)(1). One way to establish service connection for the cause of a Veteran's death is to show that a service connected disability was the principal cause of death. 38 C.F.R. § 3.312(a). In order to establish that a service-connected disability was the principal cause of death, the service connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In this case, the death certificate indicates that the immediate cause of the Veteran's death was carcinoma of the gastroesophageal junction. Significantly, VA's Adjudication Manual instructs that there is a reasonable possibility of service-connected death if the death certificate lists one of the Veteran's service-connected disabilities as a principal cause of death, and that DIC should be granted when the principal cause of death listed on the death certificate matches one or more of the deceased Veteran's service connected disabilities. See M21-1, IV.iii.2.A.1.a,b (updated July 31, 2015). Although all of the provisions of VA's Adjudication Manual are not necessarily binding on the Board, there is no basis for finding this Manual provision, which essentially instructs VA to presume that a service-connected disability is the principal cause of death when listed as such on the death certificate, is not for application or that the presumption has been rebutted. The Board's findings above reflect that service connection is warranted for esophageal / gastric cancer. Accordingly, insofar as this condition was listed as the cause of death on the Veteran's death certificate (characterized as gastroesophageal junction), the evidence reflects that the Veteran's service-connected esophageal / gastric cancer was the principal cause of the Veteran's death. Therefore, the Board concludes that entitlement to service connection for the cause of the Veteran's death is warranted, and the appellant's claim is granted. ORDER The claim for entitlement to death pension is dismissed. Entitlement to service connection for GERD, secondary to service-connected depression, is granted. Entitlement to service connection for esophageal / gastric cancer, secondary to now service-connected GERD, is granted. Entitlement to service connection for the Veteran's cause of death is granted. ____________________________________________ NICOLE KLASSEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs