Citation Nr: 21022399 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-09 187 DATE: April 15, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in November 2011; the death certificate shows that the final cause of death was intraventricular and intraparenchymal hemorrhage with extension to the midbrain. 2. The preponderance of evidence is against a finding that a disability of service origin or a service-connected disability caused or contributed to the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from August 1959 to January 1981. He died in November 2011. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision. In December 2019 this matter was last before the Board at which time it was remanded for further development. That development has been completed. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to service connection for the cause of the Veteran's death. The Veteran died in November 2011. The autopsy report shows that the final cause of death was “intraventricular and intraparenchymal hemorrhage with extension to the midbrain,” i.e. a stroke. The appellant is the Veteran’s surviving spouse, and she seeks entitlement to service connection for the cause of the Veteran’s death. She specifically asserts that the Veteran’s prostate cancer had metastasized to his brain and caused in the stroke that resulted in the Veteran’s death. She points to a notation in the autopsy report that a “neoplastic nidus for the hemorrhage could not be excluded.” She has also claimed that the Veteran had ischemic heart disease by virtue of his Vietnam service that led to his death. Notably arteriosclerotic heart disease was listed as a disease present at death in the autopsy report, albeit not as a cause of death. Dependency and indemnity compensation may be awarded to a veteran’s surviving spouse, children, or parents for death resulting from a service-connected disability. 38 U.S.C. § 1310; see also Hanna v. Brown, 6 Vet. App. 507, 510 (1994). To warrant service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). 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 otherwise be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially; 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. Where there are primary causes of death that by their nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, it would generally not be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In April 2015, VA obtained a medical opinion to address whether arteriosclerotic heart disease was related to the Veteran’s death. The examiner explained that while arteriosclerotic disease may contribute to a thrombotic or an ischemic stroke, coronary arteriosclerosis is less likely than not to cause a hemorrhagic stroke. The examiner remarked also that arteriosclerotic heart disease “does not cause hemorrhagic stroke.” In November 2018, VA obtained an opinion to address the question of whether prostate cancer had resulted in the Veteran’s death. The examiner noted that the medical records showed that the Veteran suffered an intracranial hemorrhage (stroke) that was possibly due to a mass versus a spontaneous bleed. However, the examiner stated that the medical record showed that the Veteran’s prostate cancer was in remission with an undetectable prostate specific antigen (PSA), making it extremely unlikely that prostate cancer had metastasized to the brain. The examiner concluded that it was less likely than not that prostate cancer contributed to the Veteran’s death in any way. The examiner also found that it was less likely than not that the Veteran’s service-connected fracture of the second right digit or erectile dysfunction materially contributed in any way to the Veteran’s death. Following the Board’s last remand, VA obtained an addendum opinion dated in January 2020 to address the question of whether the Veteran’s prostate cancer had resulted in the stroke that ended the Veteran’s life. Following a review of the record, the examiner concluded that the Veteran’s acute respiratory failure due to intracranial hemorrhage was less likely than not due to service-connected prostate cancer post-radical prostatectomy. The examiner explained that there is no mechanism of action for the cause of the Veteran’s acute respiratory failure due to intracranial hemorrhage by the service-connected prostate cancer. The examiner explained further that an intracranial hemorrhage is the result of a rupture of an intracranial artery, and that prostate cancer “does not cause this.” The examiner explained that the intracranial hemorrhage caused increased intracranial pressure resulting in herniation of the brain/brainstem through the foramen magnum and subsequent acute respiratory failure, i.e. death. In August 2020, VA obtained another medical opinion to address the neoplastic nidus, which was not addressed directly in the January 2020 opinion. The examiner explained that the neoplastic nidus is not a pathognomonic for metastatic prostate cancer. The examiner explained also that there was no objective evidence that the Veteran’s prostate cancer had metastasized to any extent. The examiner noted, in theory, that prostate cancer cells could spread anywhere in the body, but in practice most cases of prostate cancer metastasis occurred in the lymph nodes and not the brain. (Continued on the next page)   In September 2020, VA obtained another opinion. Once again, the examiner offered a negative opinion, stating that it is less likely than not that the prostate cancer caused or contributed to death. The examiner explained that the Veteran’s prostate cancer had not metastasized to the brain, and that the Veteran’s 45-year history of smoking was the most likely a cause or contributing factor to the intracranial hemorrhage that resulted in the Veteran’s death. The Board finds that the evidence weighs against concluding that a service-connected disability or a disability of service origin caused or contributed to the Veteran’s death. The Veteran died in 2011, approximately 30 years following his discharge. His death certificate shows that he died from intraventricular and intraparenchymal hemorrhage with extension to the midbrain, i.e. a stroke. VA examinations have ruled out arteriosclerotic heart disease as a cause of death, as well as prostate cancer as a cause of death. The April 2015 VA examiner stated that arteriosclerotic heart disease did not cause hemorrhagic stroke, and no other competent evidence indicates that heart disease caused or contributed to the Veteran’s death. Repeated VA examinations have made clear that the Veteran’s prostate cancer was in remission at the time of his death and had not metastasized anywhere in his body, including his brain, despite the fact that a neoplastic nidus for the hemorrhage “could not be excluded” in the autopsy report. The Board acknowledges the indication of a neoplastic nidus in the autopsy report, but finds that this statement is speculative, at best. See Goss v. Brown, 9 Vet. App. 109, 114 (1996) (noting that the use of the phrase “could not rule out” was too speculative). Otherwise, the VA opinions above weigh against concluding that the Veteran’s cause of death is at least as likely as not due to service, a service-connected disability, or a disability of service origin, including the service-connected prostate cancer and its residuals. The evidence preponderates against the claim and it is therefore denied. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, Counsel 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.