Citation Nr: 18140966 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-28 884 DATE: October 9, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in January 1994. The Veteran’s death certificate lists the immediate cause of death as natural causes, and underlying cause of death as terminal lung cancer. 2. At the time of his death, the Veteran was service-connected for postphlebitic syndrome in his right leg. 3. The principal and contributory causes of the Veteran’s death were not manifested in service or within the first post-service year, and the preponderance of the evidence of record is against a finding that the Veteran’s non-service-connected lung and other conditions were related to his service, or caused or aggravated by his service-connected postphlebitic syndrome. CONCLUSIONS OF LAW The criteria for service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), (d), 3.310(a), (b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1955 to August 1957. The Veteran died in January 1994, and the appellant is the Veteran’s surviving spouse. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the appellant had a hearing before a Decision Review Officer at the Columbia, South Carolina RO. A transcript of her testimony is associated with the electronic claims file. In February 2017, the Board remanded this matter for further development. In January 2018, the matter has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017), and the Board remanded this matter for further development. The matter is now back before the Board. Legal Criteria: Service Connection for Cause of Death A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312(a) (2017). To comprise 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. See 38 C.F.R. § 3.312(b) (2017). In order to constitute contributory cause of death, the appellant must show that a service-connected disability contributed substantially or materially to the veteran's cause of death, that it combined to cause death, or that it aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1) (2017). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. Id. Therefore, service connection for the cause of a veteran’s death may be demonstrated by showing that the veteran’s death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Determinations regarding service connection are based on a review of all of the evidence in the record, including all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a) (2017). When considering evidence and determining its probative value, the VA considers both the competency and the credibility of the witness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In order to prevail in a claim, a veteran only need to demonstrate that there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. Id., at 54. Facts and Analysis The Board notes that the Veteran’s death certificate lists the immediate cause of death as natural causes, and the underlying cause of death as terminal lung cancer. However, the appellant contends that the Veteran had not been diagnosed with lung cancer before he died. At the time of his death, the Veteran was service-connected for postphlebitic syndrome in his right leg, which the appellant contends caused or contributed to the Veteran’s death. In this regard, the Board notes that the underlying cause of death was noted as terminal lung cancer on the Veteran’s death certificate, and not the postphlebitic syndrome in his right leg. The Board acknowledges that the Veteran had not been formally diagnosed with terminal lung cancer before his death. However, in October 2017, a VA examiner opined that the report from the Veteran’s thorax CT scan in November 1993 of a mass described as “the radiographic appearance of a malignant lesion with a necrotic center involving both peripheral pleura and the mediastinum” showed a very strong likelihood of lung cancer. October 2017 BVA Medical Opinion, at 3. The VA examiner opined that the lung cancer was the most likely cause of the Veteran’s death considering the characteristics of the mass, the Veteran’s symptomology, and his risk factors such as prior history of heavy smoking. As to whether his service-connected disability was related to the lung cancer, in December 2014, another VA examiner opined that the postphlebitic syndrome does not result in development of cancer. December 2014 VA DBQ on Arteries and Veins. The Board finds the October 2017 and December 2014 VA opinions as competent and credible medical evidence, and that the cause of death listed on the Veteran’s death certificate is correct. As to the contributory cause of his death, the appellant contends that the postphlebitic syndrome may have caused blood clots which could have travelled to his lung and caused fatal lung conditions. The Veteran submitted a private medical opinion from Dr. M.L. in which he opined that the Veteran’s past chest X-ray results are consistent with his postphlebitic syndrome, and it was a contributing factor to his death. April 2014 M.L. Letter. The Board finds this opinion to be less probative than that of the July 2018 VA examiner. That examiner recognized that postphlebitic syndrome can cause blood clots which may travel to one’s lung and produce pulmonary emboli, which may result in further lung damage. July 2018 BVA Medical Opinion, at 3. However, the VA examiner opined that the likelihood of the Veteran’s postphlebitic syndrome causing or contributing to the cause of his death is very low since pulmonary emboli was not found in the Veteran’s records, and it is less likely than not that the Veteran ever suffered a pulmonary embolism associated with his service-connected postphlebitic syndrome. Id. Moreover, the VA examiner pointed out that the Veteran’s postphlebitic syndrome occurred in his leg and not lungs, and the possible complications caused by pulmonary emboli get manifested as other lung disease, and not as tumor or mass as in this case. Id. Based on above, the Board finds that the preponderance of the evidence is also against a finding that the Veteran’s service-connected postphlebitic syndrome was a contributory cause of the Veteran’s death. 38 C.F.R. § 3.312(a), (c) (2017). The appellant also contends that the Veteran’s service-connected postphlebitic syndrome caused or aggravated his non-service-connected pulmonary hypertension which may have been a contributing factor to the Veteran’s cause of death. However, in July 2018, the VA examiner opined that it is less likely than not that the Veteran’s pulmonary hypertension was caused or aggravated by his service-connected postphlebitic syndrome. July 2018 BVA Medical Opinion, at 3. Further, the VA examiner opined that the Veteran’s pulmonary hypertension was most likely caused by his severe lung disease with emphysematosa changes, bulla, fibrosis, and restrictive pattern in PFT’s, which are likely due to his prior history of heavy smoking and occupational exposure to asbestos as civilian worker. Id. Based on above, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s pulmonary hypertension was caused or aggravated by the Veteran’s service-connected postphlebitic syndrome in his right leg. 38 C.F.R. § 3.310 (2017). Consequently, appellant’s entitlement to service connection for the cause of the Veteran’s death is not warranted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Kim, Associate Counsel