Citation Nr: 18151407 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 12-07 808 DATE: November 19, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death, is denied. FINDING OF FACT 1. The Veteran passed away in November 2009; the death certificate indicated that the direct cause of death was lung mass probable primary lung cancer. The death certificate also noted cerebral vascular accidents (CVAs) and failure to thrive as conditions or diseases leading or contributing to his immediate cause of death. 2. At the time of his death, the Veteran was in receipt of service-connected disability benefits for left arm scar, disabling duodenal ulcer with deformity, gastroesophageal reflux disease (GERD) and esophagitis, and pernicious anemia secondary to duodenal ulcer. 3. There is no etiological relationship between the Veteran’s lung mass, failure to thrive, or CVAs and active duty service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death have not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1942 to December 1945 and from April 1952 to December 1968. He died in November 2009 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction over the appeal is now retained by the RO in Montgomery, Alabama. In March 2015, December 2016 and December 2017, the Board remanded the claim for further development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). 1. Entitlement to service connection for the cause of the Veteran’s death. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). 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 aided the production of death. 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. 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. 38 C.F.R. § 3.312 (c)(3). 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). At the time of the Veteran s death he was service connected for a left arm scar, rated non-compensable; disabling duodenal ulcer with deformity, gastroesophageal reflux disease (GERD) and esophagitis, rated 40 percent disabling; and pernicious anemia secondary to duodenal ulcer disability, rated 10 percent disabling. The Veteran died in November 2009, and his death certificate indicates that the direct cause of death was lung mass probable primary lung cancer. The Veteran’s death certificate noted CAVs and failure to thrive as conditions or diseases leading or contributing to his immediate cause of death. At the time of the Veteran’s death, he was not service-connected for lung mass or lung cancer. Review of service treatment records provided no evidence of treatment for a lung mass or lung cancer during military service. Additionally, there is no evidence of the lung mass or lung cancer developed within one year from the date of military discharge. The Appellant submitted a December 2009 letter from Dr. C.T.W., stating, “it is more likely than not that the service connected duodenal ulcer and anemia contributed to his failure to thrive.” Dr. C.T.W. did not provide any further information or rationale on why his service-connected disabilities contributed to his failure to thrive. Based on this opinion a VA opinion regarding the Veteran’s cause of death was requested. In February 2012 a VA examiner opined that the Veteran’s cause of death was less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected conditions. The examiner noted in a letter from Dr. R.G.W.’s in September 2002, explained that the Veteran’s pernicious anemia was corrected with B12 shots and VA records documented normal B12 levels after appropriate B12 replacement. He also noted there were no medical records documenting severe pernicious anemia during the Veteran’s terminal illness. There was no medical evidence showing that the Veteran’s pernicious anemia resulted in failure to thrive. There were no medical records from Dr. C.T.W. documenting active ulcer or severe gastroesophageal reflux during the Veteran’s terminal illness. The examiner explained it is not uncommon for terminal cancer and previous cerebrovascular accident to result in failure to thrive. In March 2015 and December 2016, the Board remanded this matter so that additional medical records could be obtained and placed in the claims file from Dr. C.T.W. and Bill Nichols State Veterans Home. In December 2017 the Board again remanded this matter. In its remand the Board instructed the RO to request an addendum opinion to the February 2012 VA examination based on the new medical evidence obtained. An addendum opinion was obtained in January 2018. After review of the file, the VA examiner opined, “it is less likely than not that the Veteran’s death was proximately due to or the result of his service connected disabilities.” The examiner stated the additional records from the Veteran's Home provided no new evidence that the Veteran’s service-connected conditions proximately caused or significantly contributed to his death from probable lung cancer or to his prior cerebral vascular accidents (CVAs) and failure to thrive prior to death. The examiner indicated the Veteran’s past CVAs and lung cancer were unrelated medically to his pernicious anemia and gastrointestinal (GI) conditions. He noted that the Veteran’s overall decline pre- and post-admission was related to his progressive dementia. The examiner pointed out that during the Veteran’s stay at the Veteran's Home, his upper GI service-connected conditions were treated and nicely controlled with Prilosec and his pernicious anemia with monthly Vitamin B12 injections. He had continued dementia and developed a lung mass in October 2009. The family wanted no intervention. He developed an associated pneumonia in November 2009 and died on November [redacted], 2009. The Board notes the medical treatment notes from the Bill Nichols State Veterans Home and the Body Audit Documentation Guide, fail to establish a relationship or offer an opinion regarding the Veteran’s service-connected disabilities and his cause of death, including the contributing causes. The Board finds that the VA opinions in aggregate are the most persuasive and probative evidence in this case because they were based on an extensive review of the Veteran’s entire file and provide rationales to support the opinions. Additionally, the Board notes that while Dr. C.T.W provided an opinion that “it is more likely than not that the Veteran’s service connected duodenal ulcer and anemia contributed to his failure to thrive,” Dr. C.T.W. did not provide any further information or rationale for his opinion and it is therefore given no probative value. There is no competent evidence that the Veteran’s service-connected duodenal ulcer with deformity, gastroesophageal reflux disease, esophagitis and related pernicious anemia caused or materially or substantially contributed to his cause of death (lung mass, probably primary lung cancer) or to secondary conditions of cerebrovascular accident and failure to thrive. In addition, lung cancer and cerebrovascular accident are not shown to be incurred in service, caused by service, or manifest to a compensable degree within one year of his military discharge. As the evidence fails to establish that the Veteran had a service connected disability that was either the principal or a contributory cause of death, the appellant’s claim for entitlement to service connection for the cause of the Veteran’s death is not warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs