Citation Nr: 18141261 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-17 748 DATE: October 10, 2018 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACTS 1. The Veteran died in December 2014. The death certificate lists the primary cause of death as sepsis and his secondary cause of death as bowel perforation, pneumoperitoneum, and colon cancer. 2. At the time of his death, the Veteran was service-connected for tinnitus. 3. The preponderance of the credible and probative evidence of record does not demonstrate that a service-connected disability was the immediate or underlying cause of the Veteran’s death, nor was a service-connected disability etiologically related to the cause of the Veteran’s death. 4. The preponderance of the credible and probative evidence of record is against finding that the Veteran’s death was caused by a disability incurred in or aggravated by service or is etiologically related to any incident or disease during the Veteran’s active service. CONCLUSION OF LAW The criteria for service-connection for cause of the Veteran’s death have not been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1959 to October 1984. The Veteran died in December 2014; the appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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). A contributory cause of death is one which contributed substantially or materially to cause of death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; 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)(1). 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 order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations generally applicable to compensation for service connected disability apply. 38 U.S.C. § 1310. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Factual Background The Veteran’s STRs are silent for any complaints or treatment of his bowel, colon, or gastrointestinal system. Specifically, his September 1984 report of medical examination indicated that he did not have any symptoms or complaints regarding his gastrointestinal system, anus, or rectum. In September 2010, a private medical record indicated that the Veteran awoke with severe abdominal pains. The Veteran was diagnosed with gastritis and treated with antibiotics. He reported that he had last had a physical 20 years prior when he was discharged from active service. The Veteran reported no further abdominal pain, normal bowel movements, and no known rectal bleeding. The Veteran reported that he had “never been sick” in his life until he treated for his abdominal pain. A CT scan indicated colonic wall thickening and enlarged lymph nodes suspicious for colon cancer. A private medical record indicated that in May 2012 and October 2013, the Veteran was diagnosed with metastatic adenocarcinomas with mucinious features. In November 2013, a private medical record reported that the Veteran had been diagnosed with colon cancer in September 2010, completed a 6 months course of treatment and presented with metastatic disease to his abdominal wall in June 2011. Imagining showed multiple abdominal wall masses and biopsy confirmed metastatic mucinious adenocarcinoma. The Veteran was enrolled in a clinical trial. In December 2014, a private medical emergency room record showed the Veteran presented for intermittent abdominal pain which had been ongoing for the prior day which had become severe. He reported a decreased appetite and was noted to not be currently treating for his cancer and was under supportive care. He was admitted for a likely bowel perforation. He declined surgery and aggressive measures. The Veteran died after going into asystole. The Board has considered whether the listed underlying cause of the Veteran’s death – colon cancer – warrants service connection. However, based on the foregoing, the Board finds that the evidence does not meet the requirements of service connection for the cause of the Veteran’s death. See 38 C.F.R. § 3.312. It is clear from the medical evidence of record that the Veteran was not diagnosed with colon cancer until September 2010 – over 25 years after discharge from his active duty service. Additionally, there is no evidence of such colon cancer or any other similar pathology during service and there is no evidence of record of that condition or any associated symptomology within one year of separation. Rather, the Veteran indicated in his 2010 private medical record that he had been in good health and had not had a medical examination in the 20 years since his separation from service. Furthermore, the Board notes that at no time throughout the course of the Veteran’s treatment for his colon cancer and related disorders did he or any of his medical providers identify his active duty service or any occurrence in his active duty service as a cause or possible cause for his colon cancer and resulting complications. In essence, the most probative evidence of record establishes that the causes of the Veteran’s death, colon cancer which resulted in a bowel perforation, were not manifest either in service or within one year of separation from service and there is no competent evidence of record linking those pathologies to service. Accordingly, the Board finds that the primary and underlying causes of the Veteran’s death do not warrant service connection. At the time of his death in December 2014 the Veteran was service connected for tinnitus. Of particular note, service connection for the Veteran’s listed causes of death, specifically colon cancer, has not been established as discussed above. As the Veteran’s sole service connected disability – tinnitus – is not shown in any manner to have caused or contributed to his death, the criteria of service connection for cause of death are not satisfied. See 38 C.F.R. § 3.312. Significantly, the appellant has not presented or identified any medical opinion or other treatment record that supports the claim for service connection of the Veteran’s death due to his active duty service, including his service connected disability. In assessing the evidence, the Board has considered the appellant’s statements and acknowledges the appellant is competent to provide evidence regarding the symptoms the Veteran exhibited prior to his passing. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that while a lay person is not competent to opine as to medical etiology or render medical opinions, they are competent to establish the presence of observable symptomatology). However, as the appellant’s lay statements relate to the etiology of the Veteran’s death, the Board is unable to accord these statements probative weight because she is not competent to render a medical diagnosis or opinion on such a complex medical question. See Jones v. West, 12 Vet. App. 460, 465 (1999) (holding that only those with specialized medical knowledge, training, or experience are competent to render a medical diagnosis); see also Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In sum, service connection for the cause of death must be denied. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. Although the Board is sympathetic to the appellant’s claim, the Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board emphasizes that the denial of this claim does not in any way diminish the Veteran’s service to our country. Because the preponderance of the evidence is against the claim for service connection for the Veteran’s cause of death, the claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel