Citation Nr: 21025373 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-37 803 DATE: April 28, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The record reflects that the Veteran died in September 2011. 2. The death certificate reflects that the Veteran’s cause of death was colon cancer. 3. At the time of his death, the Veteran did not have any service-connected disabilities. 4. The preponderance of the evidence is against a finding that the Veteran's cause of death is related to his active duty service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1953 to February 1955. He died in September 2011 and the Appellant is his widow. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, during the pendency of the present appeal, the Appellant properly appointed Kenneth L. LaVan, Attorney at Law, as her representative. In a September 2015 letter, Mr. LaVan withdrew from this representation appointment. The Board finds that Mr. LaVan properly revoked the representation appointment. See 38 C.F.R. § 14.631(c). To date, the Appellant has not submitted documentation appointing a new representative; as such, the Board finds that she wishes to represent herself in this appeal. The Appellant filed a timely Substantive Appeal, VA Form 9, in August 2014 and requested a Board hearing. In September 2016, she withdrew her hearing request. As such, there are no pending hearing requests. In May 2018, the Board remanded this claim for further development, as the Veteran had numerous pending claims for service connection at the time of his death, which had not been adjudicated after the Appellant was substituted into the claim. As one of the pending service connection claims was for colon cancer, the eventual cause of his death, the Board deferred consideration of service connection for the cause of his death until after the RO properly adjudicated the claim, which it did in April 2020. The Board also notes that the Appellant did not file an appeal within a year of the April 2020 rating decision. Dependency and Indemnity Compensation The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Entitlement to service connection for the cause of the Veteran's death The Appellant seeks Dependency and Indemnity Compensation (DIC) benefits. Such benefits are payable to the surviving spouse, child, or parents of a veteran if the veteran's death was from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish service connection for the cause of the Veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided, or lent assistance to producing death, for example when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). The record indicates that the Veteran passed away in September 2011, and the death certificate reflects that the immediate cause of death was colon cancer. At the time of his death, the Veteran did not have any service-connected disabilities, but he did have pending service connection claims for diabetes mellitus type II, atrial fibrillation, colon cancer, spinal stenosis of the lumbar region, posttraumatic stress disorder, and cardiomyopathy. However, after appellants substitution as claimant and the RO’s adjudication of these claims in April 2020, there is no indication that the appellant ever filed a notice of disagreement with this decision. Military personnel records indicate that the Veteran was part of the Battery 1st Field Artillery Observation Battalion in Korea during his service. Unfortunately, there is simply no medical nexus opinion of record in this claim. Simply put, there is no evidence beyond the claim suggesting that the colon cancer that caused the Veteran’s death was causally related to his military service, or even explaining why there might be a potential link to service. According to the treatment records in the claims file, the Veteran was first diagnosed with colon cancer in June 2011, decades after his separation from active duty service in February 1955. The Board also finds that consideration under a theory of secondary service connection is not appropriate either, as the Veteran was not service connected for any disabilities prior to his death. Absent an in-service event, injury, or disease to which the Veteran's colon cancer could be causally linked, a medical nexus opinion is not necessary. See DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (38 U.S.C. § 5103A does not always require VA to assist the claimant in obtaining a medical opinion in a DIC claim). For the reasons stated above, the Board finds that the preponderance of evidence is against the Appellant's claim of entitlement to service connection for cause of death due to colon cancer and the appeal must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.