Citation Nr: 1805892 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-25 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served from August 1966 to June 1968. He died in January 2010, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the undersigned Veterans Law Judge (VLJ) at an August 2014 hearing. A transcript of the hearing is of record. In December 2016, the RO denied the appellants cause of death claim, which the appellant appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In July 2017, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Partial Remand (JMPR). FINDINGS OF FACT 1. The Veteran died in January 2010. The primary cause of death was determined to be cardiopulmonary arrest, metastatic colon cancer and end stage liver cirrhosis. 2. At the time of the his death, the Veteran was service-connected for prostate cancer, diabetes mellitus, type II, bilateral lower extremity diabetic peripheral neuropathy, erectile dysfunction and prostate cancer status post brachytherapy. 3. Resolving any reasonable doubt in favor of the Veteran, his service-connected prostate cancer, diabetes mellitus type II and bilateral lower extremity diabetic peripheral neuropathy aided or lent assistance to the production of his death. CONCLUSION OF LAW The criteria for service connection for cause of death have been met. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks service connection for the cause of the Veteran's death. For the purposes of this decision, the appellant's pertinent claim is that the Veteran's service-connected conditions made the Veteran's materially less capable of resisting the effects of the disease that primarily caused his death. See e.g., December 18, 2017 correspondence. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or 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). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). In the present case, the Veteran died in January 2010. The Veteran's death certificate lists his immediate cause of death as cardiopulmonary arrest, metastatic colon cancer and end stage liver cirrhosis. As explained by the December 2015 VA examiner, the Veteran's acute cardiopulmonary arrest was a result of complications from his colon cancer and end stage liver cirrhosis. His end stage liver cirrhosis was a result of metastases to the liver from his colon cancer. Thus, the Veteran's primary cause of death is essentially due to complications of colon cancer. At the time of the Veteran's death, the Veteran was service-connected for depression (50 percent disabling); diabetes mellitus, type II (20 percent disabling); diabetic peripheral neuropathy of the bilateral lower extremities (10 percent disabling, each); and erectile dysfunction and prostate cancer (noncompensable). In November 2017, a private physician opined that the Veteran's service-connected colon cancer, diabetes mellitus type II and diabetic peripheral neuropathy of the lower extremities contributed materially to his cause of death from colon cancer. The examiner explained that the Veteran's initial portion of chemotherapy, completed in June 2005, was delayed after his June 2004 diagnosis of colon cancer to allow recovery from his May 2004 prostate cancer brachytherapy treatment. Brachytherapy can reduce white cell count and make chemotherapy more toxic. This delay in treatment is well correlated with a poorer diagnosis. Additionally, the Veteran's diabetes mellitus and peripheral neuropathy of the legs resulted in a reduced tolerance to his chemotherapy treatment. The Veteran missed chemotherapy sessions and physicians made alterations in treatments due to concerns over diabetic complications, particularly in light of certain medications used to treat his diabetic peripheral neuropathy. Despite a review of the record, including the Veteran's colon cancer treatment, the December 2015 VA examiner opined that there was no objective evidence to support or suggest that the Veteran's service-connected diabetes or prostate cancer substantially contributed to, caused or lessened the chance of the Veteran's survival from his cause of death. Although the examiner did not specifically directly address the impact of the Veteran's service-connected conditions to any colon cancer treatment, the examiner discussed that the Veteran's prostate cancer was stable and there was no requirement for active, ongoing therapy following brachytherapy. The diabetes was under control as evidenced by hemoglobin A1C testing and there was no evidence of diabetic complications affecting his cancer, liver disease or any heart disease. Finally, the examiner indicated that there was no evidence of association between the prostate and colon cancers as they were both primary cancers. In light of the competent nexus opinions resulting in at least relative equipoise and resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for the cause of the Veteran's death is warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs