Citation Nr: 22017531 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-29 302 DATE: March 25, 2022 ORDER Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in December 2016, with the Certificate of Death listing Barrett's esophagus as a contributory cause of death. 2. The Barrett's esophagus contributed substantially or materially to the Veteran's death. 3. Medication taken to treat the Veteran's service-connected uncontrolled seizure disorder caused the Barret's esophagus. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1131, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.310, 3.312, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1977 to August 1981. The Veteran died in December 2016. The appellant is the Veteran's surviving spouse. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2017 RO rating decision that denied dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C. § 1318, and also denied service connection for the cause of the Veteran's death (38 U.S.C. § 1310). This matter was previously before the Board in July 2021. At that time, the Board explained that during the course of this appeal the appellant also sought entitlement to DIC benefits pursuant to 38 U.S.C. § 1151, which claim was denied in a November 2017 rating decision. Following the issuance of a statement of the case (SOC) in November 2018, the appellant did not perfect the issue of entitlement to DIC benefits pursuant to 38 U.S.C. § 1151. As such, the Board found the issue of entitlement to DIC benefits pursuant to 38 U.S.C. § 1151 to not be before it at that time. The Board then went on to grant DIC benefits pursuant to 38 U.S.C. § 1318 and remanded the issue of service connection for the cause of the Veteran's death. As the instant decision grants service connection for the cause of the Veteran's death, no further discussion of remand compliance is necessary at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The appellant testified at a September 2020 Central Office Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The appellant was previously represented by the American Legion; however, at the time of the September 2020 Central Office hearing, the appellant revoked the representation and testified that she would be proceeding pro se. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants entitlement to service connection for the cause of the Veteran's death, which is a complete grant as to the remaining issue on appeal, no further discussion of VA's duties to notify and assist is necessary. 1. Service Connection for the Cause of the Veteran's Death is Granted DIC is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. 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. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service connected disability will be considered as the principal (primary) cause of death when such disability, 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 contributory cause of death is defined as one inherently not related to the principal cause. 38 C.F.R. § 3.312(c). For a service-connected disability to constitute a contributory cause, it must be shown that it "contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death." Id. 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. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. An increase in severity of a non service connected disorder that is proximately due to or the result of a service connected disability, and not due to the natural progress of the non service connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non service connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). The appellant seeks service connection for the cause of the Veteran's death. VA received a copy of the Veteran's Certificate of Death, which reports that the Veteran died in December 2016. Per the Certificate of Death, the Veteran's immediate cause of death was metastatic esophageal cancer, with Barrett's esophagus listed as a contributory cause of death. At the outset, the Board finds the evidence at least in equipoise on the question of whether the Barrett's esophagus contributed substantially or materially to the Veteran's death. Per the report from an October 2017 VA medical opinion, a VA examiner explicitly stated that "esophageal adenocarcinoma results from Barrett's esophagus, which is caused by chronic gastroesophageal reflux." As a VA examiner effectively found that the Veteran's Barrett's esophagus developed into esophageal adenocarcinoma (the primary cause of death), the evidence of record supports that Barrett's esophagus contributed substantially or materially to the Veteran's death. In other words, the Barrett's esophagus was a contributory cause of death as contemplated by 38 C.F.R. § 3.312(c). While the Veteran was not service-connected for Barrett's esophagus at the time of death, the appellant argues that treatment of the Veteran's service-connected uncontrolled seizure disorder caused the Barret's esophagus, to warrant service connection on a secondary basis. The Board agrees. In its July 2021 decision, the Board remanded the issue on appeal for a new VA opinion on the question of whether vagus nerve stimulation treatment used to treat the Veteran's service-connected uncontrolled seizure disorder caused the Barret's esophagus. Per a subsequent November 2021 VA medical opinion, the VA examiner found it less likely than not that the vagus nerve stimulation treatment caused or aggravated the Barrett's esophagus. At the conclusion of the November 2021 opinion report, however, the VA examiner included a special note. According to the VA examiner, the Veteran had been prescribed a maximum dose of Lamictal for treatment of the drug resistant service connected uncontrolled seizure disorder. Per the examiner, a common side effect of Lamictal is dyspepsia or reflux, and a February 2005 VA treatment record specifically noted that the Veteran was experiencing significant side effects on Lamictal, to include heartburn, halitosis, and nausea, which are common with reflux. As such, the VA examiner opined that it was more likely than not that the Veteran's reflux was caused by the Lamictal, which was used to treat the service connected uncontrolled seizure disorder. Unfortunately, the VA examiner only stated that chronic reflux can lead to Barrett's esophagus, and did not render an opinion as to whether it was at least as likely as not that the Lamictal-induced reflux caused the Veteran's Barrett's esophagus. Nonetheless, the Board finds remand for an addendum opinion to not be necessary. Review of the evidence of record, to include VA treatment records, indicates that the Barrett's esophagus was diagnosed on or about 2010 or 2011, which was years after the Veteran was placed on the maximum dosage of Lamictal and began experiencing reflux. Further, as discussed above, the VA examiner in October 2017 explicitly stated that "esophageal adenocarcinoma results from Barrett's esophagus, which is caused by chronic gastroesophageal reflux." As such, it appears to the Board that the VA examiner in October 2017 found that the, prior to death, Veteran had gastroesophageal reflux, which lead to Barrett's esophagus, and then finally developed into esophageal cancer. For the reasons discussed above, the Board finds the evidence at least in equipoise on the question of whether service connection for the cause of the Veteran's death is warranted. Per the December 2016 Certificate of Death, the Veteran's immediate cause of death was metastatic esophageal cancer, with Barrett's esophagus listed as a contributory cause of death. In November 2021, a VA examiner opined that the Veteran's gastrointestinal reflux was due to Lamictal, a medication taken to treat the Veteran's drug resistant service connected uncontrolled seizure disorder. The report from an October 2017 VA medical opinion reflects that a VA examiner opined 1) that the Veteran's reflux developed into Barrett's esophagus, and 2) that the Barrett's esophagus subsequently manifested as metastatic esophageal cancer. Resolving doubt in favor of the appellant, the Board finds that, at the time of the Veteran's death, Barrett's esophagus was secondary to the service-connected uncontrolled seizure disorder, and that the Barrett's esophagus contributed substantially or materially to the Veteran's death. For these reasons, the Board finds that the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.