Citation Nr: 21041645 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 12-11 457 DATE: July 9, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDING OF FACT No disability resulting from injury or disease incurred in or aggravated by service contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death in the Veteran's case. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1310, 5107; 38 U.S.C. §§ 3.303; 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1952 to June 1954, and was awarded the Combat Infantry Badge and Purple Heart. He died in August 1985. The appellant is the Veteran's widow. This appeal is before the Board from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office. In November 2016, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. The claim for service connection for the cause of the Veteran's death was previously denied in a February 1999 Board decision. In February 2020, the Board reopened and denied the claim. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the appellant, through her attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Partial Remand (Joint Motion). In a January 2021 Order, the Court granted the motion, and remanded the matter to the Board. The Joint Motion explained that remand was warranted for the Board to consider a December 2019 private medical opinion of Dr. S.B., which had been submitted to VA by January 2020 but had not yet been associated with the claims file. Therefore, this evidence not considered by the Board when it issued its February 2020 decision. Below, the Board addresses Dr. S.B.'s opinion in compliance with the January 2021 Joint Motion. Legal Criteria When a veteran dies due to a service-connected or compensable disability, the veteran's surviving spouse, children and parents are entitled to dependency and indemnity compensation. 38 U.S.C. § 1310. The death of a veteran is considered to have been due to a service-connected disability when the evidence establishes that a disability resulting from injury or disease incurred in or aggravated by service was either the principal or contributory cause of death. 38 C.F.R. §§ 3.312(a), 3.303. A disability is considered to be the principal (primary) cause of death when it, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A disability is considered to be a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that a disability casually shared in producing death; it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107. Factual Background In June 1953, the Veteran was wounded in action in North Korea by a mine. The injuries included compound, comminuted fractures of the right femur and right tibia and multiple wounds of the left lower extremity without fracture. The fracture wounds were complicated by osteomyelitis due to Proteus organisms that led to amputation at the middle third of the right femur. On transfer to a VA hospital in May 1954, the Veteran was described as well-nourished. There was no evidence of osteomyelitis from the amputation site. There were multiple scars over the anterior surface of the left leg that were well-healed and nontender without drainage. VA medical records beginning in November 1954 and January 1955, for fitting of a prosthetic leg and training in its use, reflect that the Veteran had no phantom pain or other symptoms relative to the amputation stump, and that the amputation stump was well-healed and the left thigh disability was asymptomatic. Physical examination was within normal limits, and the Veteran's weight was 125 pounds. In an August 1955 rating decision, the service-connected wound residuals were separately rated as follows: a 60 percent rating for amputation of the middle third of the right thigh and a noncompensable rating for wound residuals of the left thigh. During the Veteran's lifetime, these ratings were confirmed and continued unchanged. In February 1959, the Veteran was hospitalized for complaints of pain and swelling in the left leg. On examination, he was noted to be well-developed, and fairly well-nourished, with a well-healed midthigh right amputation. X-rays of the left leg showed no evidence of osteomyelitis, but showed metallic bodies secondary to shrapnel wound. White blood cell count was 6,400. The Veteran was treated with antibiotics. Reports of private medical treatment show that in December 1978 the Veteran was treated for a right intertrochanteric fracture. Additional VA medical records reflect treatment for left leg cellulitis due to an unknown organism during February and March 1959 hospitalization, and in September 1979 there was X-ray evidence of a metallic fragment in the soft tissue of the right thigh. In September 1980, the Veteran presented with a 25-day history of urinary frequency and nocturia beginning suddenly and a 10-pound weight loss over a few months. On examination, he appeared thin and healthy. The prostate was hard and enlarged. An intravenous pyelogram (IVP) showed an enlarged bladder with bilateral hydroureteronephrosis due to prostatic enlargement and bladder neck obstruction. An August 1980 biopsy of the prostate revealed adenocarcinoma. September 1980 and October 1981 bone scans were consistent with metastatic disease in the thoracolumbar spine. The diagnosis was adenocarcinoma of the prostate, stage D. The Veteran continued follow-up VA care for his prostate cancer, and a VA hospital summary shows that in January 1984 he was admitted for treatment of cancer of the prostate with bilateral hydroureteronephrosis. Physically, the Veteran was poorly nourished and in moderate distress because of back and pelvic bone pain. An associated nephrology consultation report disclosed impressions that the obstructive uropathy was secondary to prostate cancer with metastasis and cachexia as probably secondary to the metastatic process. An August 1984 hospital summary notes that the Veteran was cachectic when treated for renal failure. A July/August 1985 hospital summary report reflects that the Veteran was unable to care for himself and succumbing to chronic illness. The diagnoses were Stage D adenocarcinoma of the prostate, chronic renal failure due to cancer of the prostate, and a right upper lobe lung lesion. The Veteran's death certificate reflects that he died on August [REDACTED], 1985. The immediate cause of death was noted to be carcinoma of the prostate with bony metastases. Chronic renal failure was listed as a condition contributing to death. No autopsy was performed. A correction to the death certificate shows that the interval between onset and death was five years. The appellant testified at a December 1989 hearing that the Veteran's cancer started in service with osteomyelitis due to Proteus organisms. She also testified the cancer of the prostate was operated on in 1980 and that a doctor told her that the Veteran had bone cancer in his shoulders and a fractured hip. The appellant submitted three lay statements dated in January 1990 from friends of the Veteran since the 1940s, J.B., M.F. and L.A. These statements assert that the Veteran's health slowly deteriorated from his injuries (J.B.), he never gained any weight back (M.F.), and his nerves were in terrible condition, and he was terribly thin and in constant pain (L.A.) A January 1990 opinion of Dr. S.Y., a practitioner of adult and pediatric urology, expressed that there were "two favorable arguments to support the appellant's claim." Dr. S.Y. pointed out that the Veteran was young and strong before he was assigned to combat duty in 1953 and that, after he was injured, he had to go through a long and painful hospitalization that rendered him very weak and cachectic from a nutritional standpoint. Dr. S.Y. then conjectured that the Veteran had never recovered from such condition since then until his death. Dr. S.Y. opined that one cannot rule out a possibility of development of prostate cancer in someone who has been poorly nourished, and reasoned that there is no doubt that chronic cachexia can often result in an immune suppressed condition that will render the body vulnerable to any type of infection and to develop cancer because the natural body defense mechanism simply fails to function. Dr. S.Y. also pointed out that the Veteran's adenocarcinoma first manifested in August 1980 when he was 48 years old, noting that it is rare but not impossible to develop prostate cancer at that age. Dr. S.Y. concluded that he was not sure whether one could blame the Veteran's death on his "poor nutrition, poor immune system, etc., but at least partially one should admit the fact that his poor general condition triggered cancer ailing process and finally his death. The essential question remains whether his weakened body was all along due to his service-connected disease." In a November 1994 opinion, a Veterans Health Administration (VHA) physician noted that the Veteran's records were reviewed in detail and stated that the Veteran's "service-connected injuries and amputations did not cause or contribute in any way to his death from prostate cancer." The VHA physician stated that the Veteran's "death almost 30 years after his injuries is in no way related to those war injuries," and explained that prostate cancer was not caused by infection; that there was nothing in the medical literature suggesting that being weak increases susceptibility to cancer; and that chronic infectious osteomyelitis did not cause the Veteran's prostate cancer, as the two are wholly unrelated. The physician concluded by stating that "it is difficult to say more as there is simply no medical support whatever to this allegation." In October 2009 statements, the appellant reiterated her belief that the Veteran's death was due to infection in his body of proteus species and osteomyelitis in the bone. She further stated that when she first met the Veteran in 1954, after he was discharged from service, he was on crutches and very thin, only 98 pounds, that his appetite was never great afterwards, and that he never weighed over 130 pounds. During her testimony before the Board in November 2016, the appellant and her attorney argued that the Veteran's "leg amputation and the underlying osteomyelitis caused him to be in a weakened state [] for the entire time that he was back in the U.S. and that his condition was such that he was unable to recover properly from the prostate cancer and that it ultimately contributed to his death." They pointed to "records from the VA which repeatedly show a proteus infection which was the same infection that was found at the time that his leg was amputated and that kept him in a weakened condition throughout this medical record," and the fact that the Veteran was "malnourished." They asserted that the Veteran's "untreated, low grade proteus infection [] continued throughout his service connected injury [and] contributed to his death." They argued that the "proteus species and all the infection that he had in his body" and osteomyelitis "affect[ed] the entire body and that's what weaken[ed] his immune system." The appellant also reiterated that the Veteran was only 98 pounds when he returned home from service, never weighed more than 135 or 138 pounds at the height of 5'10", and dropped down to 104 pounds when he became ill. The appellant also submitted an August 2015 opinion from a private physician, Dr. J.W.E., that it is more likely than not that the Veteran suffered service-connected right leg above the knee amputation; right leg osteomyelitis and infection due to Proteus organisms; left thigh injuries; and decreased ambulation. He stated that the Veteran's service-connected infection and decreased ambulation likely caused diminished overall health and a diminished immune system. He further stated that, while it was not his medical opinion that the Veteran's diminished immune system was a direct cause of the prostate cancer which caused his death, it was more likely than not that that his service-connected diminished immune system aggravated and accelerated the growth and spread of the Veteran's prostate cells after they had changed from normal to cancerous cells, and that this aggravation and acceleration contributed to the Veteran's death. Dr. J.W.E. reasoned that the human body's immune system is very sensitive and diminishes with stress infection and decreased ambulation, and improves with activity and exercise. In October 2019, a VHA physician specializing in hematology and oncology reviewed the entire record, and specifically noted and reiterated Dr. J.W.E.'s August 2015 opinion. The VHA physician also specifically noted the Veteran's in-service injuries and infections in 1953, that he did not have any persistent osteomyelitis per records after the initial event, and that there was evidence of left leg shell fragment residual on September 1979 imaging, but it was not associated with any persistent osteomyelitis or soft tissue infection over the years. It was further noted that, 27 years after the in-service injuries, the Veteran was diagnosed with prostate cancer with bony metastasis. The VA physician stated the opinion that it was not likely that the Veteran's service-connected right thigh gun-shot wound residual with above knee amputation and left thigh shell fragment wounds were the principal or contributory cause of his death. In support of the opinion, the physician explained that a literature search regarding risk factors for development of prostate cancer did not include past-history of traumatic injury and/or osteomyelitis as a cause for development of prostate cancer with metastases to the bones. The literature search also did not reveal any causal association of diminished immune system affecting, aggravating, or accelerating the growth and spread of prostate cancer. The appellant submitted another medical opinion, dated in December 2019, from Dr. S.B. Dr. S.B. noted the previous opinions in support of the appellant's claim and opined that "the Veteran's osteomyelitis, prostate cancer, and cancer metastases are as likely as not secondary to his lower extremity injuries." In support of the opinion, Dr. S.B. noted that lower extremity amputations could cause a sedentary lifestyle, and that a "sedentary lifestyle is responsible for numerous comorbid diseases ultimately leading to accelerated demise." He stated: "Of note are the findings of malnourishment and depression from a sedentary lifestyle which were noted throughout the veteran's medical history, which is the foundation of the development of numerous comorbidities from his right leg injuries." Dr. S.B. further assessed that "a malnourished state leads to chronic infections," and that there was "literature showing findings of cachexia/malnourishment from eating disorders lead to an immunocompromised state which has a direct nexus to malignancies," citing medical literature regarding anorexia. He stated that "a malnourished state" caused endocrine complications and cognitive disorders, which were "diseases the Veteran suffered from during his lifetime after his right leg injuries," and most significantly caused a "decreased hormonal state (testosterone) which more likely than not has nexus to development of prostate cancer." According to Dr. S.B., the Veteran's malnourished state lead [sic] to low testosterone thus leading to high risk in development of his prostate cancer." In summary, Dr. S.B. stated that the Veteran had been "noted by clinicians to be battling with depression and a malnourished stated leading to an immunocompromised state," that "[t]he immunocompromised and malnourished state led to years of repeated bacterial infections and decreased testosterone release," and that the "decreased testosterone release has been noted to have nexus to prostate cancer and its complications of renal failure and metastasis to bone," which "eventually led to the Veteran's death." Service connection for the cause of the Veteran's death is denied. The appellant's arguments, noted above and reiterated in her former attorney's November 2016 and January 2020 briefs, include: that the Veteran incurred an infection due to his in-service right leg amputationspecifically, osteomyelitiswhich continued after service and contributed to his death; that his in-service injury resulted in a weakened or malnourished state, which continued after service and contributed to his death; and that, as a result of one or both of these, the Veteran had a weakened immune system, which contributed to his death. The appellant argues that such problems contributed to the Veteran's death by aggravating or accelerating his prostate cancer. However, the Board finds the evidence against the appellant's claim to carry more probative weight than that in favor of her claim. The Board finds the most probative evidence regarding any relationship between the Veteran's in-service leg injury and amputation and his death from prostate cancer to be the October 2019 VHA physician's opinion. The physician, a specialist in hematology and oncology, reviewed the entire record and specifically noted and reiterated Dr. J.W.E.'s August 2015 opinion. In opining that it was not likely that the Veteran's service-connected disabilities were the principal or contributory cause of his death, the VHA physician correctly noted that, while the Veteran's initial in-service injury resulted in infection, he did not have any persistent osteomyelitis per records after the initial event in 1953, and the evidence of left leg shell fragment residual on September 1979 imaging was not associated with any persist osteomyelitis or soft tissue infection over the years. The VHA physician further supported the opinion through a literature search, which did not support past-history of traumatic injury and/or osteomyelitis as a cause or risk factor for development of prostate cancer with metastases to the bones. The Board notes, as pointed out in the Veteran's former attorney's January 2020 brief, the October 2019 VA examiner phrased her opinion as "it is not likely" that the Veteran's service-connected disabilities were the cause of his death, which is not the correct standard for the Board in weighing evidence under 38 U.S.C. § 5107. However, even though not worded with the correct standard used by the Board, the opinion, read as a whole, including its complete rationale, is clearly against a finding that the Veteran's service or service-connected disability caused or contributed to his death. Therefore, the Board does not find the opinion inadequate despite the specific wording of the examiner's sentence. The Board also notes other assertions of inadequacy of the VA opinion made by the Veteran's former attorney in January 2020, but finds them unpersuasive. The attorney asserted that the examiner relied solely on general medical articles, and did not discuss any facts specific to the Veteran's particular medical condition and circumstances. However, while the examiner indeed cited medical literature in determining that a remote history of trauma or osteomyelitis was not a risk factor for prostate cancer, she also discussed specifics of the Veteran's disease in connection with such literature, including his in-service infections, lack of persistent osteomyelitis or evidence of chronic infections afterwards, and the time duration between the Veteran's in-service health problems and his cancer. The Veteran's attorney further asserted that the VA examiner did not consider the pertinent evidence of record regarding his in-service injuries and treatment. However, the examiner provided a discussion of the Veteran's injuries, complications, infections, and treatment in service relating to his leg amputation such that one can clearly, reasonably infer that the examiner thoroughly reviewed and considered the relevant in-service evidence; to the extent that the attorney suggested that the examiner did not address the Veteran's ongoing osteomyelitis (the examiner, in fact, assessed the Veteran did not have persistent osteomyelitis following his in-service treatment), as well as his pattern of chronic illness and malnutrition and diminished immune function post-service, the record does not establish these conditions, as discussed below. Finally, the Veteran's attorney asserted the examiner failed to address all legal theories of entitlement to service connection, citing the appellant's own theories that the Veteran's cancer began in service and that his osteomyelitis persisted from service and accelerated the spread of his cancer. However, the attorney did not cite any legal theory of entitlement, but rather the appellant's opinions of medical etiology, which she was not competent to give. The fact that the examiner did not address noncompetent opinions of medical etiology does not affect the adequacy of her opinion. As the Board explained in its February 2020 decision, the first two opinions submitted in support of the appellant's claimthe January 1990 opinion of Dr. S.Y. and the August 2015 opinion of Dr. J.W.E.are highly speculative, lack explanation in critical ways including of inconsistencies with the medical record, and are not supported by any noted medical authority. Both Dr. S.Y. and Dr. J.W.E. correctly noted the Veteran's in-service infection and malnourished and weakened state in 1953 at the time of his right leg amputation. However, both, without explanation, asserted that the Veteran never recovered from such condition until his death, and that his infection and/or malnourished state continued in service and for 25 years post-service until his diagnosis of prostate cancer, despite the fact that the available service and post-service records contradict this. As noted above, service and post-service treatment records reflect that in May 1954 the Veteran was described as well-nourished and there was no evidence of osteomyelitis from the amputation site. VA medical records beginning in November 1954 and January 1955 reflect that the amputation stump was well-healed and the left thigh disability was asymptomatic. Physical examination was within normal limits, and the Veteran's weight was 125 pounds. Also, on February 1959 hospitalization for pain and swelling in the left leg, the Veteran was noted to be well-developed and fairly well-nourished, X-rays of the left leg showed no evidence of osteomyelitis, and white blood cell count was 6,400. Furthermore, as noted by the October 2019 VHA physician, the evidence of left leg shell fragment residual on September 1979 imaging was not associated with any persistent osteomyelitis or soft tissue infection over the years. The evidence, in short, reflects that the Veteran fully recovered from his osteomyelitis infection in 1953 and never had it again and, beginning by at least 1954, was no longer malnourished. In this regard, moreover, Dr. S.Y. and Dr. J.W.E.'s assertion that the Veteran had diminished overall health and a diminished immune system is not supported in these medical records; there is no explanation as to why these doctors felt the Veteran had these conditions for over 25 years after service beyond speculation that the immune system can generally be affected by lack of ambulation and activity. There is, moreover, no adequate explanation as to how, even if the Veteran had been malnourished post-service, such malnourishment would have been caused by his service-connected disabilities, in-service injuries, or service generally. Contrary to the assessments given by Dr. S.Y. and Dr. J.W.E., the earliest indication of weight loss or malnourishment problems post-service was in September 1980, when the Veteran presented with symptomsrelating to already advanced, metastatic prostate cancerincluding a 10-pound weight loss over a few months and, even then on examination, he was noted to appear thin and healthy. In the following years, during the progression of such cancer, he was noted to be poorly nourished with cachexia, but this was specifically related by his medical providers to the Veteran's metastatic cancer. The Board finds the unexplained inconsistencies in Dr. S.Y.'s and Dr. J.W.E.'s opinions with the record to diminish their probative value significantly. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). As discussed in its February 2020 decision, the Board notes the appellant's statements and the lay statements of others regarding the Veteran's weight and perceived condition in the years after service. As lay persons, they are competent to give their opinions that the Veteran seemed thin, did not eat very much, or seemed weak. However, they are not competent to make medical determinations that the Veteran was malnourished or in poor physical health. Such health assessments are more competently made by medical professionals whoas discussed aboverepeatedly, beginning in 1954, determined that the Veteran was not. It is, furthermore, reiterated that even assuming the Veteran was weak and/or did not eat well, the record does not provide any probative explanation as to how this would be the result of service or his service-connected disabilities. This is especially so given the evidence that the Veteran had gained weight back from when he was only 98 pounds and malnourished in 1953; in 1954 he was noted to be was 125 pounds, and his wife testified that he gained weight up to about 135 pounds. Again, the Veteran's loss of weight in 1980 was specifically noted as symptomology of his already advanced metastatic cancer. Finally, in accordance with the January 2021 Joint Motion terms, the Board has considered the December 2019 opinion of Dr. S.B. However, this opinion likewise lacks probative value as it is based on assessments that are, without explanation, simply not consistent with the documented evidence of record. Dr. S.B.'s opinion relies on numerous assertions that he provides no evidentiary support in the record for, and otherwise provides no substantial explanation for. This includes that the Veteran, during the period between service and his onset of prostate cancer, had a sedentary lifestyle, suffered from depression and other "cognitive disorders," and had a "decreased hormonal state," including low testosterone levels, all of which Dr. S.B. determined in some way led to the development of the Veteran's prostate cancer. None of this is documented in the record, and Dr. S.B. does not indicate where it might be documented or on what evidence these assessments of the Veteran's post-service health before prostate cancer are based. Depression was noted in the record only several years after the Veteran's prostate cancer diagnosis, which was noted to be the result of his cancer and resulting medical condition. Furthermore, in this regard, aside from the February 1959 instance of treatment for leg cellulitis, Dr. S.B. does not note or cite to any medical records after the Veteran's period of service until August 1980, when the Veteran was diagnosed with prostate cancer. Regarding Dr. S.B.'s similarly unsupported assertions that the Veteran, in the over 25 years between leaving service and first being diagnosed with cancer, was malnourished, in an immunocompromised state, and suffered chronic infectionsall of which Dr. S.B. found were caused by service-connected disability and contributed to the Veteran's development of prostate cancerDr. S.B. appears to have based these assertions exclusively on the information contained in the January 1990 opinion of Dr. S.Y. and the August 2015 opinion of Dr. J.W.E., which, as explained in detail above, the Board finds unfounded. Aside from Dr. S.Y.'s and Dr. J.W.E.'s opinions, there is no specifically identified evidence cited in Dr. S.B.'s opinion, or found in the record, suggesting, before the onset of the Veteran's cancer: "findings of malnourishment and depression from a sedentary lifestyle which were noted throughout the veteran's medical history"; that the Veteran had been "noted by clinicians to be battling with depression and a malnourished state leading to an immunocompromised state"; or "years of repeated bacterial infections and decreased testosterone release." Rather, as explained above, these assessments are inconsistent with the established evidence of record, which reflects, post-service, no nourishment problems prior to onset of prostate cancer, only one incident of infection (in 1959), and no documentation of immunological problems or decreased testosterone release preceding the Veteran's cancer. It is also notable that Dr. S.B.'s opinionlike Drs. S.Y. and J.W.E.provides no cogent explanation of how any malnourishment, had it existed over 25 years post-service until the Veteran's cancer diagnosis, was the result of service or service-connected disability. The Board is sympathetic to the appellant's position in this matter, and recognizes the considerable sacrifice made by the Veteran in service to his country. It also notes that the appellant may file a Supplemental Claim and submit further evidence that may substantiate her claim; if any such submitted evidence is at least new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. 38 C.F.R. § 3.2501. However, given the totality of the evidence currently of record, a preponderance of the evidence is against a finding that any disability resulting from injury or disease incurred in or aggravated by service contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death in the Veteran's case. Accordingly, service connection for the cause of the Veteran's death must be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.