Citation Nr: 18146801 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 17-61 311 DATE: November 1, 2018 ORDER Service connection for the cause of the Veteran's death is reopened. Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. In an unappealed July 2011 rating decision, the Regional Office (RO) denied service-connection for the cause of the Veteran’s death. 2. The evidence received since the July 2011 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for the cause of the Veteran’s death. 3. The Veteran died in December 2009 with a primary cause of death of adenocarcinoma of the stomach. 4. The Veteran was in Vietnam and therefore he was presumed to have been exposed to herbicides in service. 5. Ischemic cardiomyopathy is shown as likely as not to have contributed substantially or materially in contributing to the Veteran’s death. CONCLUSIONS OF LAW 1. The July 2011 rating decision denying service connection for the cause of the Veteran’s death is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim for entitlement to service connection for the cause of the Veteran’s death has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. § 3.5, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1967. He died in December 2009. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2017 rating decision of the Department of Veterans Affairs (VA) Veterans Benefits Administration. Jurisdiction is with the RO in Winston-Salem, North Carolina. Service connection for the cause of the Veteran’s death was initially denied in a July 2011 rating decision. The appellant did not appeal that decision, nor did she submit new and material evidence within one year. As such, the decision became final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). Since that decision, new and material evidence has been associated with the claims file; in particular, the appellant submitted a statement from the Veteran’s treating physician linking his cause of death to a disability of service origin. Accordingly, the claim is reopened. Entitlement to Service Connection for the Cause of the Veteran's Death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving child of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. A veteran’s death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, 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 inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a veteran’s death for compensation purposes, 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). With regard to service connection, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. With respect to the current appeal, that list includes cardiovascular-renal disease and malignant tumors. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease and malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, including ischemic heart disease, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307(a)(6)(ii) (providing that with the exception of chloracne or other acneform disease, porphyria cutanea tarda, and early onset peripheral neuropathy, the diseases listed in 38 C.F.R. § 3.309(e) must be manifest to a degree of 10 percent or more at any time after service). The Veteran’s service personnel and treatment record confirm that he sustained a shell fragment wound injury as a result of hostile action in Vietnam in October 1966. Therefore, as he served in Vietnam during the requisite period, it is presumed that he was exposed to herbicides in service. The death certificate lists the primary cause of death of azotemia due to adenocarcinoma of the stomach, due to or a consequence of Agent Orange exposure. During the Veteran’s lifetime, he was service-connected for residuals of prostate cancer, bilateral sciatic neuralgia with lumbosacral strain and a one-inch shortening of the right leg, hemorrhoids and a scar, shell fragment wound of the right deltoid. Service treatment records include no complaint, finding, or diagnosis with respect to adenocarcinoma of the stomach. Post-service treatment records reflect that the Veteran had an episode of gastritis in March 2009, followed by an upper respiratory tract infection. He was subsequently hospitalized for anemia and underwent blood transfusion. During his hospitalization, an upper and lower endoscopy were completed, which showed a gastric ulcer with the biopsy returning positive for adenocarcinoma. Medical history of hypertension and hyperlipidemia were also indicated. He underwent chemotherapy and then gastric resection in September 2009. In December 2009, the Veteran was admitted to the emergency department for complaints of diffuse abdominal pain and progressive weakness. He stated that the pain had been present since surgery, but had worsened over the previous 2 days. At the time of admission, a past medical history of prostate cancer, hypertension, coronary artery disease, coronary artery bypass graft times 4 vessels in 2006, hypercholesterolemia, chronic obstructive pulmonary disease, gastrointestinal reflux disease, and anxiety were also indicated. CT scan findings such extensive adenopathy in various areas and were most concerning for disseminated malignancy, either primary pancreatic or metastatic gastric. After a few days of palliative care, the Veteran was discharged for hospice, and he passed away approximately 2 weeks later. With regard to the presently nonservice-connected cause of death listed on his death certificate, adenocarcinoma of the stomach, here there is no probative evidence of a nexus between adenocarcinoma of the stomach and the Veteran’s service. That is, service connection is not warranted for the cause of death listed on the Veteran’s death certificate. The appellant has never specifically contended, and evidence does not otherwise establish, that the disability listed on the death certificate had its onset during the Veteran’s active service many years ago. As discussed below in greater detail, stomach cancer was diagnosed in 2009 and there is also no indication of onset of stomach cancer in service or within one year of discharge from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); see Walker, 708 F.3d at 1336-40. Moreover, there also is no probative evidence (no nexus evidence) linking the Veteran’s cause of death with his active service. Holton, 557 F.3d at 1366. The Board acknowledges the death certificate notation that adenocarcinoma of the stomach was due to or a consequence of Agent Orange exposure. While prostate cancer, respiratory cancer, and soft tissue sarcoma are among the enumerated diseases listed in 38 C.F.R. § 3.309(e) that are associated with herbicide exposure, adenocarcinoma of the stomach is not listed in the regulation. Therefore, presumptive service connection for the cause of death listed on the death certificate. Moreover, despite this notation, there is no medical rationale or accompanying medical records. Accordingly, the Board afforded this notation of little probative value and it is therefore not sufficient to establish service connection for the cause of the Veteran’s death listed on the death certificate. Rather, the appellant contends that the Veteran had ischemic heart disease secondary to his herbicide exposure in service, and that this disability contributed to or hastened his death. In this case, the record reflects that the Veteran was diagnosed with coronary artery disease/ischemic cardiomyopathy. He underwent coronary artery bypass graft times 4 vessels in 2006. Private treatment records from Dr. M. indicate that the Veteran was on a variety of different heart/hypertension medication, including Benicar and Toprol. Given the Veteran’s Vietnam service, his ischemic heart disease is therefore presumed as due to in-service herbicide exposure. 38 C.F.R. §§ 3.307, 3.309(e). The question remains as to whether the Veteran’s ischemic heart disease contributed to his death. In this regard, the Board notes that there are competing opinions of record. In a January 2017 statement, the Veteran’s treating physician, Dr. M., wrote that the Veteran died of metastatic adenocarcinoma of the stomach. He had ischemic cardiomyopathy in his past medical history. He had 4 vessel bypass surgery in 2005. The physician concluded that ischemic cardiomyopathy did shorten the Veteran’s life. In so finding, Dr. M. indicated that when a patient had a large tumor burden, cardiac input comes into play. Therefore, he concluded that the Veteran’s cardiomyopathy did shorten his life and it did contribute to his death. In May 2017, a VA physician reviewed the Veteran’s claims file, including the opinion from Dr. M. She opined that it is not at least as likely as not that the Veteran’s ischemic heart disease contributed to his death. She noted the review of his records reflect diagnosis of gastric cancer and that he was a subsequent gastrectomy. He was admitted to the hospital in December 2009, at which time a diagnostic evaluation revealed the present of pancreatic cancer. He was released from the hospital and died 12 days later. Therefore, she concluded that it did not appear that the Veteran’s coronary artery disease played a contributory role in his death from cancer. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board finds Dr. M.’s opinion of greater probative value. In so finding, the Board notes that the VA examiner did not provide any rationale for the conclusion reached and merely noted that it did not appear that the Veterans’ coronary artery disease played a contributory role in his death from cancer. Dr. M., however, was the Veteran’s treating physician and provided rationale for his opinion as to how the Veteran’s ischemic heart disease contributed to his death, though it was not listed on the death certificate. Therefore, resolving all reasonable doubt in favor of the appellant, the medical opinion evidence supports the finding that the Veteran's service-connected ischemic cardiomyopathy was contributory cause of a veteran’s death in that it aided or assisted in the production of death. Accordingly, service connection for the cause of the Veteran’s death is warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel