Citation Nr: 21015169 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-39 391 DATE: March 16, 2021 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1956 to June 1959. He died in November 2010. The appellant was the Veteran’s surviving spouse at the time of his death. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Agency of Original Jurisdiction (AOJ) for the appellant’s claims is the RO in St. Louis, Missouri. The appellant testified before the undersigned Veterans Law Judge (VLJ) via video conference during an October 2017 Board hearing. A transcript of the hearing is included in the claims file. The Board issued a decision in March 2018 denying the claim. The matter was appealed to the Court of Appeals for Veterans Claims (Court). The Court found the Board clearly erred in relying on the October 2014 VA examiner’s inadequate opinion. The Court stated the opinion is inadequate because the examiner focused solely on whether the veteran’s service-connected back injury caused his fatal colon cancer and failed to address the Veteran’s surviving wife’s stated theory of service connection. Namely, the VA examiner failed to address whether the Veteran’s service-connected condition would have a material influence in accelerating death, not just whether the service-connected back injury caused colon cancer. The Court remanded the case back to the Board for further proceedings. The matter is REMANDED for the following action: Refer the Veteran’s claims file to an appropriate examiner to assist with determining whether the Veteran’s service-connected condition would have a material influence in accelerating death. The examiner should have access to and review the Veteran’s claims file. The examiner should be provided with a copy of the below facts. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: • The Veteran served on active duty from June 1956 to June 1959. • The Veteran’s death certificate showed that he died in November 2010. The immediate cause of death was colon cancer with metastases, with other significant conditions contributing to death but not resulting in the underlying cause given of renal failure and cerebral vascular disease listed as. See VBMS entry with document type, “Death Certificate,” receipt date 12/19/2012. • In March 1959, during the Veteran’s period of service, he was in an automobile accident, where he sustained a compression fracture to T-12. He was hospitalized for less than one month. See VBMS entry with document type, “STR – Medical,” receipt date 07/20/1959, p. 12. • The April 1959 Report of Medical Examination performed at separation shows that the Veteran’s vascular, rectal and anal, and genitourinary systems were all normal. In the Report of Medical History that the Veteran completed at that time, he denied a history of rupture, piles or rectal disease, tumor, growth, cyst, or cancer, frequent or painful urination, kidney stone or blood in urine, or sugar or albumin in urine. See VBMS entry with document type, “STR – Medical,” receipt date 07/20/1959, at pp. 17-18 (Report of Medical History) & 19-20 (Report of Medical Examination). • An August 1959 VA orthopedic examination report shows that the examiner noted the Veteran’s in-service automobile accident and the compression fracture he sustained. The examiner documented the Veteran was able to bend forward with his knees stiff and touch the floor without difficulty. There was no muscle spasm, no pelvic tilt, and no visible deformity of any portion of the spine. The examiner concluded, “The general orthopedic examination is completely negative.” X-rays taken at that time showed a “compression deformity of the body of D-12 with about 25% narrowing anteriorly. This appears to be long-standing. No other evidence of abnormality is seen.” The examiner diagnosed history of fracture, recent compression T-12, healed without symptoms or limitation of motion. See VBMS entry with document type, “VA Examination,” receipt date 08/27/1959, pp. 6 (examination) & 10 (x-ray). • The Veteran was awarded service connection for residuals of a compression fracture to T-12 with deformity of the body, which was granted as of the day following service discharge and assigned a 10 percent rating, which disability rating remained the same until the Veteran’s death. • A July 1964 VA orthopedic examination report shows that the examiner noted the Veteran’s in-service automobile accident and the compression fracture he sustained. The examiner wrote that at the present time, the Veteran had no complaints referable to the injury except for an occasional achy-type pain in this region. The Veteran complained of low back pain, which was most prevalent after prolonged sitting or standing. Physical examination revealed an essentially normal vertebrae column alignment without evidence of spasm or edema of the paraspinous musculature. There was no localized tenderness elicited. The examiner wrote the Veteran could carry out normal range of motion in the back without any difficulty. He walked on his heels and toes and squatted and stooped without difficulty. Lasegue sign and straight leg raising were negative, bilaterally. An x-ray taken that time was interpreted as, “Examination fails to reveal bone or joint abnormality. The previously described compression deformity of T-12 apparently unchanged since the last examination and very little residual is observed.” The examiner diagnosed history of traumatic compression fracture T-12 – treated with no residual abnormalities found at this examination.” See VBMS entry with document type, “VA Examination,” receipt date 07/16/1964, pp. 1 (examination) & 7 (x-ray). • The appellant is the Veteran’s surviving spouse. She believes that the Veteran’s service-connected residuals of a compression fracture of the T-12 spinal segment caused or substantially contributed to the Veteran’s death because his spine was “deformed” at the time of his death, which caused his cerebral vascular disease, and this disability put pressure on his kidneys, which caused his renal failure. See VBMS entry with document type, “VA 21-534 Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child,” receipt date 12/19/2012, at p. 10. • In May 2010, the Veteran was admitted to the hospital with complaints of increasing back pain over the last two weeks. It was noted that he had lost about 50 pounds and had had episodes of incontinence of bowel over the last six months. The examiner noted that the Veteran’s description of pain was more in the lower pelvic area versus in the lumbar spine or thoracic spine. The Veteran reported the motor vehicle accident that occurred in service and described having chronic back pain. X-rays of the lumbar spine showed moderate degenerative changes. The x-ray also showed bilateral lower lung atelectasis. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 02/18/2013, with “#5” in the subject field, pp. 51-52. • The Veteran underwent multiple consultations during that hospitalization with urology, hematology/oncology, gastroenterology, infectious diseases, nephrology, and general surgery. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 02/18/2013, with “#5” in the subject field, pp. 53-64. • The May 2010 discharge summary shows final diagnoses of (1) adenocarcinoma of the colon; (2) acute renal failure, chronic kidney disease; (3) ureteral obstruction; (4) peritonitis; (5) acute blood loss anemia status post packed red blood cells; (6) urinary retention, benign prostatic hypertrophy; (7) history of cerebral vascular accident with chronic occluded left carotid; (8) hypertension; and (9) chronic low back pain. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 02/18/2013, with “#5” in the subject field, pp. 48-49. • The Veteran was hospitalized at VA in June 2010 and November 2010 due to decline in health. See VBMS entry with document type, “CAPRI,” receipt date 10/30/2014. • In an October 2014 medical opinion, a VA examiner concluded that the Veteran’s service-connected residuals of compression fracture of T 12 did not cause or contribute to the Veteran’s death. He explained that that based on information in the medical literature, the thoracic spine compression fracture and the resulting angulation of the spine could not predispose someone to develop colon cancer. See VBMS entry with document type, “C&P Exam,” receipt date 10/21/2014, at p. 1. • However, the October 2014 examiner did not address whether the service-connected residuals of a compression fracture of T-12 contributed to the other causes of the Veteran’s death. For example, the examiner did not address whether the service-connected disability impacted renal failure and/or cerebral vascular disease, which were two conditions included in the death certificate as other significant conditions contributing to death but not resulting in the underlying cause given. • To reiterate, the appellant believes the Veteran’s spine was “deformed” at the time of his death, which caused his cerebral vascular disease, and this disability put pressure on his kidneys, which caused his renal failure. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to answer the following question: Is it at least as likely as not (50 percent probability or higher) that the Veteran’s service-connected residuals of a compression fracture of the T-12 spinal segment contributed to the Veteran’s death or had a material influence in accelerating his death in relation to the renal failure and/or cerebral vascular disease? Please state what facts and medical principles the opinion is based. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Patton The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.