Citation Nr: 21027663 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 11-18 588 DATE: May 6, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) benefits pursuant to 38 U.S.C. § 1318 is denied. Service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran died in June 2010 and the primary cause of death is stage IV non-small cell cancer of the lung (lung cancer), and contributing causes of death are lung, brain, and spinal metastases of lung cancer, as well as anthracosilicosis. 2. At the time of his death, the Veteran was service connected for (1) abscess and MRSA infection, residuals of incisional hernia repair at zero percent and (2) scar, residual of incisional hernia repair at 10 percent, with a combined rating of 10 percent. 3. The evidence does not show the Veteran's service or service-connected disabilities caused or contributed substantially or materially to his death. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318. 2. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 5107, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had two periods of active service. He served the first period from June 1958 through July 1960 and received an honorable discharge. He served the second period of service from July 1960 to January 1962, but was discharged under other than honorable conditions. A VA administrative decision in March 1962 determined that the discharge for the second period of service was deemed as "dishonorable" which serves as a bar to receipt of VA benefits for disabilities incurred during such service. As such, the second period of service will not be considered for VA benefit purpose. The Veteran did not appeal to the March 1962 VA decision. The Veteran died in June 2010. The Appellant, the surviving spouse, filed claims for DIC and service connection for cause of death. The Appellant stated in a letter dated August 2011 that at the time of his death, the Veteran still had the hernias even after he had hernia surgeries. Her representative generally argued in June 2011 as part of the substantive appeal (Form 9) that the Veteran's death was attributable to a service connected condition, but did not specify which service connected condition had contributed to the death. A February 2018 Board decision denied DIC claim and service connection for cause of death, to which the Appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2018, the Court vacated the Board's February 2018 decision and remanded the case pursuant to a Joint Motion for Remand (JMR). In the JMR, parties agreed that the Board errored in relying on the August 2017 VA medical opinion which was inadequate in that (1) it merely stated that the death certificate did not indicate that any of the service connected conditions were the principal or secondary cause of death and the examiner provides no additional rationale for why his service connected conditions did not contribute to his death, and (2) it failed to provide an opinion on whether Veteran's lung cancer was related to service, as required by the prior Board remand dated August 2017. In June 2019, the Board remanded the matter for further development pursuant to the December 2018 JMR, to include obtaining a medical opinion on (1) whether it is as likely as not (50 percent or more probability) that the Veteran's stage IV non-small cell cancer of the lung, bilateral lung metastases, brain and extensive spinal metastases, and anthracosilicosis were related to his first period of service? and (2) where it is as likely as not (50 percent or more probability) that the two service connected disabilities - (a) abscess and MRSA infection, residuals of incisional hernia repair and (b) scar, residual of incisional hernia repair - caused or contributed to his death, to include whether the effects of infection could render the Veteran less capable of resisting the effects of other diseases? Subsequently, a VA Medical opinion was obtained in October 2019 and the Board is satisfied that there has been substantial compliance with its remand directives. Entitlement to DIC benefits under 38 U.S.C. § 1318 38 U.S.C. § 1318 provides that DIC will be awarded to a deceased veteran's surviving spouse in the same manner as if the veteran's death is service-connected, even though the veteran died of nonservice-connected causes, if the veteran's death was not the result of his or her own willful misconduct and at the time of death, and the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the veteran's release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former POW who died after September 30, 1999. Evidence shows that at the time of his death, the Veteran was service connected for (1) abscess and MRSA infection, residuals of incisional hernia repair at zero percent and (2) scar, residual of incisional hernia repair at 10 percent, with a combined rating of 10 percent. He was therefore not rated at 100 percent at any time, and there is no suggestion he was a POW. As such, the Appellant is not entitled to DIC benefits under 38 U.S.C. § 1318. Service connection for cause of death To establish service connection for cause of death, the evidence must show that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312(c)(1). The Veteran's Death Certificate lists the primary cause of his death as stage IV non-small cell cancer of the lung (lung cancer), and contributing causes of death as lung, brain, and spinal metastases of lung cancer, as well as anthracosilicosis. Although the Veteran was not service connected for lung cancer, its metastases or anthracosilicosis at the time of his death, the Board will consider whether these conditions can be service connected, as well as whether the death can be linked to any or all of his service-connected disabilities. An August 2017 VA medical opinion concluded that the Veteran's service connected conditions were less likely than not (less than 50 percent probability) contributed substantially to his death, because the Veteran's death certificate did not indicate his cause of death was due to any of the service connected conditions. An October 2019 VA medical opinion concluded that the Veteran's service connected conditions were less likely than not (less than 50 percent probability) contributed substantially to his death. The examiner explained that, review of the medical record showed that the Veteran had an abscess secondary to a foreign body from surgery, this was evaluated and treated many years prior to the development of lung cancer and was resolved. There was no evidence of ongoing infection at the time of death, therefore, it was less likely than not (less than 50 percent probability) residuals of incisional hernia (abscess and MRSA infection and scar) caused, materially contributed to the Veteran's death, or rendered him less capable of resisting the effects of other diseases resulting in his death. In addition, the October 2019 VA examiner opined that Veteran's stage IV non-small cell lung cancer was less likely than not (less than 50 percent probability) related to his first period of service (from June 1958 to July 1960), because review of the service treatment records (STRs) for the first service period showed no evidence of the diagnosis or treatment for any lung condition or symptoms that would be associated with lung cancer, and the Veteran developed lung cancer 50 years after he completed his first service period, and were most likely related to his long employment in the coal mines. Furthermore, the October 2019 VA examiner opined that lung, brain and spinal metastases of lung cancer was less likely than not (less than 50 percent probability) related to his first period of service, because metastasis was directly related to the lung cancer diagnosed approximately 50 years after the completion of first service period. Finally, the October VA examiner opined that the Veteran's anthracosilicosis was less likely than not (less than 50 percent probability) related to his first period of service, because review of the STRs for the first service period showed no evidence of anthracosilicosis. The examiner indicated that this condition was associated with the Veteran's employment in coal mines, and provided the following rationale: Most cases of silicosis are the result of inhaling dust that is not pure silica. An example is the disease caused by dust generated in the mining and processing of hard coal in Pennsylvania. The disease produced by this dust is termed anthracosilicosis and answers all the definition requirements of an occupational disease. Locally it is called "miners' asthma." STRs show that at the time of his separation of his first period or service and re-enlisting of his second period of service, a medical examination was conducted in June 1960 and showed normal lung condition with chest x-rays showing that results were within normal limits. At a report of medical history dated June 1960, the Veteran denied shortness of breath, tuberculosis, asthma, chronic cough, while reporting boils, whooping cough, and mumps. He did not report any lung conditions or symptoms. VA treatment records in February 1998 showed that the Veteran was diagnosed with mild interstitial fibrosis and discoid atelectasis of left lung base by chest x-rays. This is the first VA treatment records showing that he had a lung condition, which was approximately 38 years after the Veteran completed his first period of service. VA records in March 2001 showed that the Veteran had worked for 30 years as an underground coal miner, and records in July 2009 showed that the Veteran had significant history of anthracosilicosis and was recently diagnosed with lung cancer. After the death of the Veteran, VA medical records in July 2010 showed the following notes: The 69-year-old white male was diagnosed to have carcinoma of the right lower lobe of the lung on computerized tomography performed 3 June 2009. Over the following year the patient was noted to have involvement of both lung fields, the mediastinum, and brain. No tissue diagnosis was ever available in the VA system. There was a past medical history of prolactinoma, diagnosed 1995, and diffuse atherosclerotic vascular disease, status post coronary artery bypass graft 1990, and aortobifemoral bypass graft 1992. The patient was admitted to Hospice Care on 3 June 2010. The patient had increasing pain and discomfort. His family were no longer able to care for him. He expired on 20 June 2010 at 3:15 pm. The autopsy was performed 42.25 hours postmortem. The cause of death was widely disseminated giant cell carcinoma of the right lower lobe of the lung. The autopsy was restricted to examination in both lungs. There was antemortem evidence of dissemination of tumor to the mediastinum, and the brain. Examination of the lungs reveal diffuse metastases throughout both lung fields. Histologic examination showed the tumor to be a giant cell carcinoma. Typical findings of coal workers pneumoconiosis included diffuse emphysema, diffuse obsolescent pulmonary granulomata including lymph nodes, and anthracotic deposition around untethered. The Board finds that the October 2019 VA opinion was rendered after review of the Veteran's claim's file, based on well-reasoned rationale, and supported by evidence of record. It has not been contradicted by other medical opinions, as such, it will be afforded great probative value. According, the evidence is insufficient to show that the Veteran's cause of death (to include lung cancer, its metastases and anthracosilicosis) occurred during or was otherwise related to his first period of service. The evidence is also insufficient to show that the Veteran's service connected the residuals of incisional hernia repair (to include abscess, MRSA infection, and scar) substantially or materially contributed to the Veteran's death, or rendered him less capable of resisting the effects of other diseases resulting in his death. Service connection for cause of death is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.