Citation Nr: 21022459 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-28 393A DATE: April 15, 2021 ORDER Service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran died in February 2017. The immediate cause of death listed on the death certificate was pancreatic cancer; multiple sclerosis (MS) was listed as a contributory cause. 2. At the time of the Veteran’s death, service connection was not in effect for any disabilities. 3. The evidence of record establishes that MS had its onset in active service and was a contributory cause of the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1978 to June 1984. The Veteran died in February 2017. The Appellant is his surviving spouse. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board denied service connection for the Veteran’s cause of death. The Appellant appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In June 2020, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board’s August 2019 denial and remanded the matter to the Board for compliance with the instructions included in the parties’ JMR. Service connection for cause of death is granted. The Appellant contends that service connection for the Veteran’s cause of death is warranted. The death certificate and supplemental report indicate that the Veteran died from pancreatic cancer, as the immediate cause of death, and that MS was a significant condition contributing to the Veteran’s death. Service connection for the cause of the Veteran’s death may be granted if a service-connected disability was either the principal, or a contributory, cause of the Veteran’s death. 38 U.S.C. §§ 1110, 1310, 1131; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related. 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause, it must contribute 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; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Service connection will be granted if it is shown that the Veteran had a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in the line of duty, in active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a 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, 1167 (Fed. Cir. 2004). Certain chronic diseases, to include MS, may be service connected on a presumptive basis if shown in service or manifested to a compensable degree in a specified period of time post-service (seven years for MS). 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. During his lifetime, the Veteran was not service connected for any disabilities, to include pancreatic cancer or MS. The Appellant asserts that the Veteran’s death is partly a result of his MS, which she asserts manifested in service and/or within the presumptive period. See January 2018 notice of disagreement; March 2021 appellate brief. The Board finds that competent and credible evidence of record establishes that the Veteran had a diagnosis of MS that had its onset in service and was a contributory cause of the Veteran’s death, thus warranting an award of service connection for the Veteran’s cause of death. 38 U.S.C. §§ 1110, 1310, 1131; 38 C.F.R. § 3.303, 3.307, 3.309, 3.312. The first element of service connection, the existence of a disability, is not in dispute. See private medical treatment record (noting a diagnosis of MS in June 1994). The question before the Board is whether MS manifested in service or within the presumptive period, or whether there is otherwise a nexus with service. As noted above, the Board initially denied the claim in an August 2019 Board decision. The Court vacated the decision in June 2020 and remanded the claim, finding that the Board provided an inadequate statement of reasons and bases for its decision because it improperly focused on the date of diagnosis for MS. The Appellant was permitted to submit additional evidence on the issue. Following the Court remand, the Appellant submitted a private medical opinion by Dr. A. S. D., in March 2021. Dr. A. S. D., a practicing neurologist, reviewed the Veteran’s entire claim file and opined that it is at least as likely as not that the Veteran’s MS had its onset during his military service and contributed to his death. Dr. A. S. D. also noted that the Veteran reported eyesight complaints during service in August 1979 and again in 1986, shortly after separation. The Veteran’s post-service treatment records from July 2001, March 2003, and April 2008, showed a history of intermittent leg pain or weakness. Treatment records from September 2001, September 2003, November 2008, and August 2010, showed a history of visual disturbances and cognitive problems, to include difficulty swallowing and writing, as well as memory problems. Specifically, in a September 2001 treatment record, it was noted that the Veteran experienced symptoms of MS for the past 10 to 12 years. This was bolstered by a March 2002 treatment record noting that the Veteran developed relapsing-remitting MS in 1989. The Veteran was diagnosed with MS in June 1994. Dr. A. S. D. explained that, as often happens with MS patients, the Veteran was not diagnosed until years after its onset. It is well known that MS is difficult to diagnose, particularly during the early stages of the disease. Patients frequently disregard their symptoms and do not seek treatment until later stages. The clinical course of the disease can take years to accurately assess and often leads to late diagnoses. As such, it is not uncommon for physicians to rely on the patient’s history of symptoms to help establish a diagnosis and approximate onset. Here, the Veteran’s reported symptoms of eyesight problems during and following service closely parallel studies noting visual problems as common features of MS. Furthermore, Dr. A. S. D. noted a July 2017 medical opinion by Dr. G.B., which is also of record. The July 2017 opinion states that the Veteran’s MS contributed to a slow recovery after pancreatic surgery in 2016, and that it was decided not to pursue additional surgical management of his pancreatic cancer due, in part, to his MS. The Board finds that both opinions are probative because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As the evidence of record establishes that MS was a contributory cause of the Veteran’s death and that MS is causally related to the Veteran’s service, service connection for the cause of the Veteran’s death is warranted. 38 C.F.R. §§ 3.102, 3.312. N. Stevens Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, Associate 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.