Citation Nr: 18142000 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 16-24 798 DATE: October 12, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is dismissed as moot. FINDINGS OF FACT 1. The Veteran died in October 2010; the death certificate listed his cause of death as progressive lung metastases from kidney cancer, with bone and other metastases as a contributing condition. 2. The Veteran’s service connected ischemic heart disease contributed substantially or materially to the Veteran’s death. 3. The claim of entitlement to DIC under 38 U.S.C. § 1318 is moot. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. 2. The claim of entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 is dismissed. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1968 to June 1971. The Veteran died in October 2010. The appellant is the Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In her May 2016 VA Form 9, Appeal to Board of Veterans’ Appeals, the appellant requested to appear at a hearing before the Board. In August 2016 correspondence, the appellant’s attorney indicated that the appellant wished to withdraw her request to appear at a hearing before the Board. Therefore, the appellant’s hearing request has been withdrawn. 1. Entitlement to service connection for the cause of the Veteran's death The appellant contends that the Veteran’s cause of death is related to his service or to his service-connected ischemic heart disease (IHD). The Board acknowledges that the appellant has also alleged that renal cell carcinoma that was a cause of death listed on his death certificate was caused by the Veteran’s presumed exposure to herbicide agents. As the Board is awarding service connection for cause of the Veteran’s death based on the theory of entitlement that the service-connected IHD contributed substantially or materially to death, it is not necessary to further discuss the herbicide agent theory of entitlement. In order to establish service connection for the cause of the Veteran’s death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. 38 C.F.R. § 3.312(a). In order to constitute 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). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; 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). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the veteran’s death should have been service-connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service or, in the alternative, is secondary to another service-connected disability. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Veteran’s death certificate listed one cause of death: progressive lung metastases due to kidney cancer, and said that bone and other metastases caused by kidney cancer contributed to his death. These conditions were not service-connected during the Veteran’s lifetime. The Veteran’s IHD was service-connected posthumously in an October 2011 rating decision. A March 2016 VA examination report concluded that the service connected IHD and the medications used to treat that condition were less likely than not a cause or substantially contributory to the Veteran’s death. The examiner noted the following in supporting of this conclusion: First, the Veteran’s death certificate stated the cause of death was progressive lung metastases from kidney cancer, and did not list IHD as a cause of death or contributing factor. Second, the evidence did not include medical documentation showing that IHD contributed to his death. Third, the medical documentation of record showed that the Veteran’s IHD condition was well-controlled because approximately two months prior to his death, he reported no chest pain, and approximately eight months prior to death he had a stress test showing no perfusion defects (ischemia) or wall motion abnormalities. Fourth, the aspirin used to treat the Veteran’s IHD is not a known risk factor for cause of his death or for development of renal cell carcinoma. Finally, the five-year survival rate for the Veteran’s stage IV renal cell carcinoma is 8%, and he had survived 12 years since it was diagnosed in 1998. However, a July 2017 private oncologist’s report concluded that the Veteran’s IHD did substantially contribute to his death. The oncologist pointed out that the Veteran was diagnosed with ischemic heart disease in 2008, with progression to congestive heart failure based on oncology notes, and that the diagnosis of IHD occurred before the aggressive phase of the Veteran’s cancer began in June 2009. The oncologist found that the Veteran’s cardiac comorbidities had made it impossible for treating physicians to administer high-dose IL-2 (the immunotherapy standard for fit patients as of 2010) to treat his cancer. In 2009, a physician recommended against using Sunitinib, which is the standard agent for initial therapy of low- and intermediate-risk renal cell carcinoma. The 2009 treating physician recommended against the use of Sunitinib because it carried a risk of exacerbating or causing myocardial infarction and congestive heart failure. As a result, the Veteran was not treated with high-dose IL-2 or Sunitinib. The 2017 oncologist also stated that the March 2016 VA report was flawed because the VA physician did not account for the Veteran’s treatment history or the cardiac toxicity of pharmaceutical treatments for renal cell carcinoma and his assessment of the Veteran’s survival was based on a flawed understanding of renal cell carcinoma pathobiology and clinical management. He also noted that the March 2016 VA opinion provider did not have appropriate training background to render oncology opinions. Ultimately, the private oncologist concluded that the Veteran’s service-connected cardiac comorbidities “definitely impacted” his renal cell carcinoma treatment and more likely than not negatively impacted his survival. He opined that it was “certain that ischemic cardiac disease rendered the Veteran materially less capable of resisting the effects of cancer.” Although they reach different conclusions, the Board finds that the March 2016 VA report and the July 2017 private oncologist’s report both hold substantial probative weight in that they contain thorough rationales for the conclusions reached and are based on review of the record and the Veteran’s pertinent medical history. Therefore, the evidence is at least in equipoise as to whether the Veteran’s service-connected ischemic heart disease was a contributory cause of his death. As such, the Board resolves any doubt in the appellant’s favor and concludes that the Veteran’s service connected IHD contributed substantially or materially to cause the Veteran’s death. See 38 C.F.R. § 3.312(c)(1). Therefore, service connection for the cause of the Veteran’s death is warranted. 2. Entitlement to DIC under § 1318 Because the Board has granted entitlement to service connection for the cause of the Veteran’s death, the remaining claim of entitlement to DIC benefits under 38 U.S.C. § 1318 has been rendered moot. As such, the claim is dismissed. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dean, Associate Counsel