Citation Nr: 18152303 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 17-57 630 DATE: November 21, 2018 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in August 2017 and the primary cause of death was due to a glioblastoma. 2. At the time of his death, the Veteran was service-connected for bilateral hearing loss, bilateral knee disability, bilateral hernias, right shoulder disability, and left ankle disability. 3. The Veteran’s glioblastoma was not shown in service or many years after service; and, the preponderance of the evidence fails to establish that this disorder is related to service. CONCLUSION OF LAW The cause of the Veteran’s death is not attributable to a disability incurred in and/or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1310, 5103, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1975 to November 1979, from April 1981 to April 1984, and from March 1985 to February 1992. He died in August 2017. The appellant is his surviving spouse. Cause of Death Entitlement to service connection for the cause of the Veteran’s death In this case, the appellant generally asserts that the Veteran’s cause of death was related to service. 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. For a service-connected disability to be the cause of death it must singly, or with some other condition, be the immediate or underlying cause, or else be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C. § 1310; 38 C.F.R. § 3.312. 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 is 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, 1131; 38 C.F.R. § 3.303, 3.304. In this case, the Veteran died in August 2017, and according to his death certificate, the primary cause of death was due to a glioblastoma. At the time of his death, he was service connected for bilateral hearing loss (30 percent), left ankle disability (10 percent), right knee disability (10 percent for instability and 10 percent for limitation of motion, repetitively) right shoulder disability (10 percent), right hernia (10 percent), and had noncompensable ratings for a left hernia and left knee disability. As an initial matter, there is no evidence to indicate that the Veteran had a service-connected disability that contributed substantially or materially to his death as the Veteran was not service connected for glioblastoma, or any other disability that was related thereto, at the time of his death. Of note, the appellant has not asserted, nor does the medical evidence indicate, that the Veteran’s glioblastoma was related to a service connected disability. Next, the Board considers whether the Veteran’s glioblastoma (which caused the Veteran’s death), was related to service. 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, 1131. 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). After a review of the evidence, the Board finds that service connection for a glioblastoma is not warranted. Specifically, the service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a brain tumor, to include a glioblastoma, while in service. Significantly, the Veteran’s separation physical examination in January 1992 fails to document any complaints of or observed symptoms related to a brain tumor/glioblastoma. Moreover, the post-service evidence does not reflect symptoms related to a brain tumor or glioblastoma for many years after the Veteran left active duty service. In this case, the first indication of a brain tumor were neurological symptoms that were observed in approximately 2014-2015, and subsequently diagnosed as a glioblastoma in December 2015. As part of this claim, the Board recognizes the statements from the appellant regarding the Veteran’s history of symptoms of a brain tumor/glioblastoma since service. In this regard, while the appellant is not competent to make a diagnosis related to a brain tumor, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is “medical in nature,” she is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that service connection cannot be granted solely based on the appellant’s reported history of continued symptomatology since active service. Specifically, the Board cannot ignore that there is a significant gap in time between when the Veteran left service and when the appellant filed her claim for benefits. Moreover, the Board notes that the Veteran filed numerous claims for VA benefits in the 30 years prior to his death, but did not seek entitlement to service connection for a brain tumor or glioblastoma. The fact that the Veteran and appellant were aware of the VA benefits system and sought out claims for benefits, but made no reference to the disorder on appeal, weighs heavily against the appellant’s credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). As such, a continuity of symptoms is not shown based on the clinical evidence or statements from the appellant. Next, although the appellant is not competent to diagnosis and provide etiological opinions related to the disorder on appeal, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions. Here, while the Veteran had neurological symptoms related to a brain tumor in 2014/2015, that was diagnosed as a glioblastoma in 2015, there is not sufficient evidence in the medical records to demonstrate a nexus between his active service and the Veteran’s disorder. Additionally, the appellant has not provided sufficient evidence, including private opinions and/or medical evidence to establish a nexus between the Veteran’s complaints and active service. As part of this claim, the Board recognizes the statements from the appellant, regarding the relationship between the Veteran’s brain tumor and active service. Nevertheless, while she is competent to provide testimony regarding observable symptomatology such as pain and neurological symptoms, she is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s glioblastoma are found to lack competency.   In light of the above discussion, the Board concludes that the preponderance of the evidence is against the appellant’s claim of service connection for the cause of the Veteran’s death, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel