Citation Nr: 1754461	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  15-34 807	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an initial compensable rating for squamous cell carcinoma status post left upper lobectomy.

2.  Entitlement to service connection for the Veteran's cause of death.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The appellant and her daughter

ATTORNEY FOR THE BOARD

W. Ripplinger, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from December 1945 to November 1947.  The Veteran died in February 2011; the appellant is his surviving spouse.  This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2012 and September 2012 decisions issued by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota.  Jurisdiction over the claims file is currently held by the Regional Office (RO) in Houston, Texas.

The appellant testified at a September 2017 hearing before the Board; a transcript of the hearing is associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issue of entitlement to an initial compensable rating for squamous cell carcinoma status post left upper lobectomy is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The Veteran died in February 2012; the certificate of death listed pneumonia as the immediate cause of death, with dysphagia and sequelae from stroke as conditions leading to the cause of death.

2.  At the time of the Veteran's death, he was service connected for tinnitus, bilateral hearing loss, squamous cell carcinoma status post left upper lobectomy, and a scar associated with squamous cell carcinoma status post left upper lobectomy.

3.  The Veteran's squamous cell carcinoma status post left upper lobectomy contributed to his death.


CONCLUSION OF LAW

The criteria for service connection for the Veteran's cause of death are met. 38 U.S.C. §§ 1310 (2012); 38 C.F.R. §§ 3.312 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant contends that service connection is warranted for the Veteran's cause of death because the Veteran's pneumonia was a result of his service-connected squamous cell carcinoma status post left upper lobectomy.  

Service connection for the cause of a veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or a contributory cause of the veteran's death.  38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312(a).  For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto.  38 C.F.R. § 3.312(b). 

A contributory cause of death is inherently one not related to the principal cause. For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially; combined to cause death; or aided or lent assistance to the production of death.  38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). 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. 

After considering the evidence of record, the Board finds that entitlement to service connection for the Veteran's cause of death is warranted because the upper left lobectomy was a contributory cause of death.  Although a May 2012 VA medical opinion found that the Veteran's cause of death was not related to his service-connected disabilities, this opinion did not address the Veteran's squamous cell carcinoma status post left upper lobectomy.  In contrast, a private physician wrote in a September 2015 letter that the Veteran's lobectomy made it "significantly more likely" that the Veteran would die from pneumonia.  The private physician attributed this relationship to "the fact that he would have less healthy lung tissue available to compensate and take over the work of the lung while the sick tissue was recuperating from the pneumonia."  Thus, the left upper lobectomy aided the production of death and service connection is warranted.


ORDER

Entitlement to service connection for the Veteran's cause of death is granted.


REMAND

Remand is necessary to further develop the record.  First, the appellant's April 2011 claim for substitution is not associated with the electronic claims file.  It should therefore be located and associated with the electronic claims file.

In addition, the appellant testified at the September 2017 hearing that the Veteran received treatment at the veterans home in McAllen for the year prior to his death.  Treatment records from this facility have not been associated with the claims file.  The appellant should be given an opportunity to provide them on remand.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Locate the appellant's April 2011 claim for substitution and associate it with the electronic claims file.

2.  Contact the appellant and request that she provide information as to any private or VA treatment records for squamous cell carcinoma status post left upper lobectomy that have not been associated with the claims file, to include treatment at the veterans home in McAllen.  A signed release form should be completed for each private treatment provider.   

3.  Review the record to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. If the benefit is not fully granted, issue a supplemental statement of the case and provide the appellant and her representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
M. H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs