Citation Nr: 18157064 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 11-31 143 DATE: December 11, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in February 2002, and metastatic rectal cancer was the cause of death. 2. At the time of death, the Veteran was service-connected for posttraumatic stress disorder. 3. A disability of service origin did not cause or contribute substantially or materially to the Veteran’s death. 4. Rectal cancer was not manifest during service or within one year of separation. Rectal cancer is not otherwise due to service. CONCLUSION OF LAW Service connection for the cause of the Veteran’s death is not warranted. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to September 1970. The Veteran died in January 2002. The appellant claims as the Veteran’s surviving spouse. In January 2013, the Appellant testified before the undersigned Veterans Law Judge at a Board of Veterans’ Appeals (Board) videoconference hearing at the Regional Office (RO) in Atlanta, Georgia. A transcript of the proceeding has been associated with the claims file. The Board previously remanded this claim in May 2014, March 2016 and June 2017. As an initial matter, the Board notes that in October 2018 the Appellant’s representative requested 90 days in order to obtain a medical opinion that would “address the question of medical negligence and whether or not the negligence if determined, hasted the veteran’s death.” Such an opinion was received by VA on the same day as this request. The Board finds the representative’s request relates to a previously denied application to reopen a claim for entitlement to Disability and Indemnity Compensation (DIC) under 38 U.S.C. § 1151. See May 2014 Board decision. Therefore, the request for additional time is denied. If the Appellant would like to file an application to reopen the previously denied claim for entitlement to DIC under 38 U.S.C. § 1151, she may submit a complete claim to VA. See 38 C.F.R. § 3.155. 1. Entitlement to service connection for the cause of the Veteran's death The Veteran died in February 2002. His death certificate lists metastatic rectal cancer as the lone cause of death. At the time of his death, the Veteran was service-connected for posttraumatic stress disorder (PTSD). The Appellant contends the Veteran’s rectal cancer should be considered a soft-tissue sarcoma, and thus presumptively service-connected. See April 2010 application for DIC. Alternatively, the Appellant contends PTSD affected the Veteran’s ability to received treatment, and thus hastened his death. See, e.g., November 2011 substantive appeal and January 2013 hearing testimony. To grant service connection for the cause of the Veteran’s death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disease or injury. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. In this regard, it is not sufficient to show that the service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). To establish service connection for a disability, the evidence must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease of injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Malignant tumors are a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.309(a) for “chronic disease” are applicable. Analysis The Appellant contends the Veteran’s rectal cancer was a soft-tissue sarcoma, and thus presumptive service connection is warranted due to the Veteran’s Vietnam service and presumed herbicide agent exposure. See 38 C.F.R. §§ 3.307 and 3.309. However, a review of the record is against such a conclusion. A September 2000 biopsy did not reveal the Veteran’s rectal cancer was a soft-tissue sarcoma. See September 5, 2000 treatment records. Instead, the biopsy revealed adenocarcinoma of the rectum. The Appellant provided documents discussing soft-tissue sarcoma generally, but not specific to the Veteran. Therefore, the Board finds the Veteran’s rectal cancer was not a soft-tissue sarcoma, and thus presumptive service connection is not warranted. Despite this, direct service connection may still be established. However, the record does not contain evidence that the Veteran’s rectal cancer was present during or otherwise caused by service, to include presumed herbicide agent exposure. The Veteran’s service treatment records to not reflect treatment for rectal cancer or any other rectal issues. Similarly, such issues are not noted within one year of separation from service. See 38 C.F.R. §§ 3.307(a)(3) and 3.309(a). The Board previously remanded the Appellant’s claim multiple times in order to obtain medical records and an adequate medical opinion on whether it is at least as likely as not “that the Veteran’s service-connected PTSD caused, or materially or substantially contributed to, the cause of the Veteran’s death.” See June 2017 Board decision. Such an opinion was received in October 2018. The opinion was an addendum to a previously submitted opinion. The opinion providers considered additional evidence in providing their addendum opinion. The two clinicians issued a joint opinion, stating “there is insufficient evidence to opine with at least 50% medical certainty that the veteran’s service-connected PTSD caused or materially or substantially contributed to his death. There is therefore, no change in the previous medical opinion rendered that it is less likely than not that the veteran’s service-connected PTSD caused or materially or substantially contributed to his death from metastatic rectal cancer.” The clinicians noted there is conflicting evidence on whether the Veteran’s PTSD affected his ability to get treatment. However, even if PTSD did affect the Veteran in such a manner as described by his family, the clinicians concluded the Veteran’s PTSD symptoms would not have materially or substantially contributed to his death from metastatic rectal cancer. In support of their opinion, the clinicians noted that “at the time of its initial diagnosis, the cancer had already spread, treatment options were limited and non-curative” and “the veteran was deemed terminal.” Additionally, they noted “[t]here is no evidence that non-compliance (from PTSD or any other cause) hastened his death. PTSD did not cause his rectal cancer as there is no medical rationale for a mental disorder to cause a rectal adenocarcinoma. There is no evidence that the PTSD interfered with his diagnosis or delayed his evaluation and work-up, as testimony from the wife in a tort case revealed that he sought care in a timely fashion. And finally, PTSD or its sequelae did not interfere with his compliance with treatment and did not adversely affect his longevity.” Furthermore, the clinicians noted an October 2001 treatment record which indicated the Veteran “was non-compliant but also notes that ‘since he is end-stage there is little chance the oral medication [chemotherapy] would have worked anyway.’” The Appellant and the Veteran’s family have expressed contrary lay opinions; however, there are no contrary medical opinions of record. In adjudicating the Veteran’s claims, the Board must assess the competence and credibility of lay statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Appellant and other lay witnesses are competent to give evidence about what they observe. See Layno v. Brown, 6 Vet. App. 465 (1994). However, competent evidence concerning the nature of the Veteran’s rectal cancer and PTSD has been provided by medical personnel who have rendered pertinent opinions. The medical findings directly address the criteria under which service-connection for the cause of the Veteran’s death is evaluated. As such, the Board finds the medical records and opinions to be the most probative evidence with regard to the Appellant’s claim. In light of the above, the evidence of record is against a finding that the Veteran’s rectal cancer was due to service or that PTSD caused the Veteran’s death, or substantially or materially contributed to it. Therefore, service connection for cause of the Veteran’s death is not warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel