BVA9407704 DOCKET NO. 89-44 079 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to service connection for cancer of the colon with metastases for the purpose of accrued benefits. 3. Entitlement to an increased rating for bronchiectasis with left lower lobe lobectomy, evaluated as 30 percent disabling, for the purpose of accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD George E. Guido Jr., Counsel INTRODUCTION The appellant is the surviving spouse of the veteran. The veteran served in the active military service from July 1943 to November 1945. This appeal arises from a July 1990 rating decision of the Boston, Massachusetts, Department of Veterans Affairs (VA) Regional Office (RO), denying service connection for the cause of the veteran's death. This appeal also arises from an October 1993 rating decision, denying service connection for cancer of the colon with metastases and an increased rating for bronchiectasis for the purpose of accrued benefits. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran's service-connected disability, affecting a vital organ, was a contributory cause of death as it rendered the veteran materially less capable of resisting the effects of cancer and that colon cancer with metastases to several organs, including the lung, cannot be disassociated from the service-connected disability. It is argued that the benefit-of-the- doubt standard applies as does 38 C.F.R. § 3.312(c) (contributory cause of death). The appellant also contends that the veteran's service-connected bronchiectasis with left lower lobe lobectomy caused lifelong pulmonary problems, including emphysema, and should have been evaluated as 60 percent disabling following surgery for a left lower lobe lobectomy in December 1950. She states that, during the 1980s the veteran was treated by Dr. Edward Dervan and that from February 1987 until his death, the veteran's pulmonary problems, including emphysema, had gotten worse as he had severe pain and very limited activity. DECISION OF THE BOARD In accordance with 38 U.S.C.A. § 7104 (West 1991), after review and consideration of all the evidence and material of record in the claims file and for the following reasons and bases, the Board decides that the preponderance of the evidence is against the appellant's claim of service connection for the cause of the veteran's death and the claims for accrued benefits. FINDINGS OF FACT 1. On the basis of the death certificate, the 65-year-old veteran died in April 1990; the immediate cause of death was cardiorespiratory arrest due to adenocarcinoma of the colon due to lung and bone metastases. 2. At the time of the veteran's death, service connection was in effect for bronchiectasis with left lower lobe lobectomy, evaluated as 30 percent disabling. 3. Cancer of the colon with metastases to several organs, including the lung, was not shown to be present coincident with service; nor was it the result of injury suffered or disease contracted in service; nor did it become manifest to a compensable degree within one year from the date of separation from service; nor was it etiologically related to service-connected bronchiectasis with left lower lobe lobectomy. 4. A service-connected disability did not cause or contribute substantially or materially to the cause of the veteran's death. 5. Prior to his death, the veteran's service-connected bronchiectasis with left lower lobe lobectomy was manifested by emphysema and recurrent acute upper respiratory infections, but produced no more than moderate impairment. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the cause of the veteran's death. 38 U.S.C.A. §§ 1310, 5107(b) (West 1991); 38 C.F.R. § 3.312 (1993) 2. Cancer of the colon with metastases was not incurred in or aggravated by service; nor may service incurrence be presumed based on the one-year presumption for chronic disease; nor was it proximately due to or the result of service-connected disability, including for the purpose of accrued benefits. 38 U.S.C.A. §§ 1110, 1112(a), 5107(b), 5121 (West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1993). 3. The schedular criteria for a rating in excess of 30 percent for bronchiectasis with left lower lobe lobectomy have not been met for the purpose of accrued benefits. 38 U.S.C.A. §§ 1155, 5107(b), 5121 (West 1991); 38 C.F.R. Part 4, §§ 4.7, 4.96(a) Diagnostic Code 6601 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that all relevant facts of the appellant's claims have been properly developed and no further assistance to her is required to comply with the statutory duty to assist. 38 U.S.C.A. § 5107(a). Background The evidence in the file at the date of the veteran's death consists of the following: The service medical records, including the reports of entrance and separation examinations, disclose that in February 1944 the veteran was hospitalized for acute pneumonitis involving the left lower lobe of the lung and acute left pleurisy. The records contain no complaint, finding or history of colorectal abnormality. In a December 1950 statement, Lawrence Murphy, M.D., stated that from January 1946 to August 1950 he had treated the veteran for upper respiratory infections. A summary from the West Roxbury VA Hospital discloses that in November 1950 the veteran was admitted with a chief complaint of recurring cough and sputum of seven years' duration. During the hospitalization, a bronchogram revealed findings suggestive of bronchiectasis in the left lower lobe of the lung. In December 1950, he had a left lower lobe lobectomy. The postoperative course was uneventful. A colorectal abnormality was not shown. On discharge from the hospital in February 1951, he was asymptomatic. The final diagnosis was bronchiectasis of the left lower lobe. In an April 1951 rating decision, the RO granted service connection for bronchiectasis of the left lower lobe of the lung, the only adjudicated service-connected disability, and a 30 percent rating was assigned, effective from November 29, 1950. The 30 percent rating remained unchanged during the veteran's lifetime. In reaching its determination the RO considered an extract from the service medical records, Dr. Murphy's statement and the VA hospital summary. VA subsequently notified the veteran of the award by letter. In February 1953, the District Health Officer informed the veteran of the following X-ray findings: a suspicious right 1st and 2nd interspace, which may have been a residual lipoidal, an operative defect at the left seventh rib and emphysema. Records of Morton F. Plant Hospital disclose that in April 1985 the veteran was admitted with a history of rectal bleeding beginning in February 1985. A chest X-ray was clear. A sigmoidscopic study revealed a lesion at the rectosigmoid junction and a pathological study of the lesion revealed adenocarcinoma. The pertinent diagnosis was adenocarcinoma of the rectosigmoid colon. In February 1987, a routine chest X-ray revealed a new left lung lesion. On physical examination, the lungs were clear. After a left thoracotomy and lung biopsy, the findings were consistent with visceral and parietal pleural involvement consistent with metastatic colon carcinoma to the lung. In September 1988, the veteran filed claims for service connection for cancer and for an increased rating for his service-connected disability. In an April 12, 1990, remand to the RO, the Board asked for VA medical records and for the records of private physicians who had treated the veteran. The death certificate discloses that the veteran died on April 13, 1990. The immediate cause of death was cardiopulmonary arrest due to adenocarcinoma of the colon due to lung and bone metastases. No other condition was listed as contributing to death and no autopsy was performed. In July 1990, the appellant filed a claim for VA benefits including accrued benefits. Post-date-of-death evidence consists of the following: In a statement, dated in March 1991, Edward J. Dervan, M.D., reported that he was the veteran's family physician from 1950 through 1986 and that he had treated the veteran mostly for respiratory illnesses. He recounted that the veteran had a left lower lobe lobectomy in 1950, pneumonia in the early 1960s, emphysema, and shortness of breath at the slightest exertion. He summarized that he treated the veteran for pulmonary medical problems; namely, emphysema, post bronchiectasis and recurrent acute upper respiratory infections. Records of Lahey Clinic disclose that, in July 1986, a chest X-ray revealed pleural fibrosis and post-resection of the left 7th rib; physical examination was unremarkable. A February 1987 chest X-ray revealed a pulmonary nodule in the left retrocardiac area and chronic obstructive pulmonary disease; the impression was probable metastatic deposit. In August 1987, it was reported that the veteran was on chemotherapy that was started in April 1987; a July 1987 X-ray had shown a nodular density in the periphery of the left mid-lung compatible with metastatic disease; an August 1987 chest CT scan and chest X-ray revealed multiple densities in the left chest wall, a left retrocardiac nodule, and decrease in volume of the left hemithorax and extensive pleural thickening at the left lung base and along the left lateral chest wall; physical examination was unremarkable except for modest weight loss that the physician felt might be indicative of disease progression. In October 1987, a chest X-ray was essentially unchanged from a February 1987 film. In November 1988, it was reported that the veteran's disease had progressed and he complained of fatigue, anorexia, and mild nausea following chemotherapy. In September 1989, a chest X-ray showed a slight increase in the pleural based metastatic disease along the left lateral chest wall and a slight increase in an anterior subpleural nodule on the left. On examination in October 1989, the lungs were clear. Additional records of Morton F. Plant Hospital disclose that in April 1985 history included two hospitalizations in 1944 and 1959 for pneumonia and no current cardiopulmonary problems. On admission in February 1987, history was negative for unexplained weight loss, significant shortness of breath, night sweats or a productive cough. In February 1990, the veteran was admitted because of progressive left arm weakness, he also had been anorectic with progressive weight loss over three months and he was known to have colon cancer with lung metastasis. A review of systems revealed no chest symptoms. The chest was clear to percussion and auscultation. A CT scan of the brain revealed two lesions. A CT scan of the chest was consistent with metastatic disease to the left chest wall. A CT scan of the abdomen revealed metastatic disease to the liver, the right adrenal gland and possibly the left kidney. It was summarized that the veteran had adenocarcinoma of the colon with chest wall metastases and he now apparently had developed brain metastases with both cranial nerve and long tract signs consistent with multiple brain metastases and edema. In March 1990, he was readmitted because of a grand mal seizure. A review of systems revealed no chest symptoms. The chest was clear to percussion and auscultation. History included carcinoma of the colon with known brain metastases. The discharge diagnoses were grand mal seizure secondary to brain metastasis, left hemiparesis secondary to brain metastasis, adenocarcinoma of the colon, brain metastasis, lung metastasis, and chest wall metastasis. On physical examination in a February 1987 surgical consultation, Richard A. Murbach, M.D., felt that the veteran's pulmonary function was excellent. Records of Oncology Physicians disclose that in June and July 1988 pulmonary metastases were described as progressive. Records of Lykes Cancer Center disclose that in February and March 1990 the veteran was receiving radiation therapy for chest wall metastases. Records of Hospice Care disclose that on March 29, 1990, the veteran was admitted because his disease had rapidly progressed. Physical assessment included clear airways and lungs, normal and regular respiration and a dry cough. There was no dyspnea and he did not require oxygen. Records of Robert L. Drapkin, M.D., of Oncology Physicians, who signed the death certificate, disclose that he was treating the veteran for terminal metastatic colon cancer with lung metastases. In a May 1989 statement, Dr. Drapkin said that the veteran had gained 11 pounds since chemotherapy was discontinued. In a July 1993 statement, Dr. Drapkin reported that the veteran had adenocarcinoma of the colon with chest wall and bony metastases and that he died, as expected, due to widespread metastatic disease. Analysis I. Entitlement to Service Connection for the Cause of the Veteran's Death The surviving spouse of a veteran who died after December 31, 1956, may file a claim for dependency and indemnity compensation (DIC) benefits. Under 38 U.S.C.A. § 1310(a), DIC benefits will be paid to the surviving spouse when the veteran's death is from service- connected or compensable disability. The death of a veteran will be considered to have been due to service-connected disability when the evidence establishes such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). Subsection (b) of 38 C.F.R. § 3.312 provides that a service-connected disability will be considered as the principal 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. A contributory cause of death must be causally connected to death and must have contributed substantially and materially to death, have combined to cause death or aided or assisted to the production of death. 38 C.F.R. § 3.312(c)(1). On the basis of the death certificate, the immediate cause of death was cardiorespiratory arrest due to adenocarcinoma of the colon with lung and bone metastases. Cancer of the colon was not an adjudicated service-connected disability during the veteran's lifetime. The issue, therefore, is whether service-connected status can be established for cancer of the colon with metastases. In determining whether cancer of the colon is service connected, the evidence must show that it was the result of injury suffered or disease contracted in line of duty during service. 38 U.S.C.A. § 1110. This can be accomplished by affirmatively showing inception in service, 38 C.F.R. § 3.303(a); by continuity of symptomatology, 38 C.F.R. § 3.303(b); by statutory presumption of service connection for a specific chronic disease, when the specified disease becomes manifest to a 10 percent degree or more within one year from date of separation from service, 38 U.S.C.A. § 1112(a), the specified diseases include malignant tumor or cancer; or by initial postservice diagnosis beyond the one-year presumptive period, when all the evidence, including that pertinent to service, establishes the disease was incurred in service, 38 C.F.R. § 3.303(d). The record shows that colon cancer was first clinically manifested and diagnosed on the basis of a biopsy in 1985. In the absence of any evidence affirmatively showing colon cancer coincident with service (the service medical records are negative for any colorectal abnormality), and in the absence of manifestations of cancer in the almost 40 year interval between the veteran's period of service and the clinical presentation of cancer, there is no positive evidence to link the veteran's fatal disease to service by direct incurrence, continuity of symptomatology, the one-year presumptive period for a chronic disease, or initial postservice diagnosis beyond the one-year presumptive period. Also, there is no positive evidence that the immediate cause of death resulted from the veteran's service-connected bronchiectasis with left lower lobe lobectomy as it was not listed on the death certificate or referred to by Dr. Drapkin, who signed the death certificate, in his July 1993 statement in which he attributed the veteran's death to widespread metastatic disease. As for the argument that colon cancer with metastases to several organs, including the lung, cannot be disassociated from the service-connected disability, 38 C.F.R. § 3.310(a) provides that disability which is proximately due to or the result of a service- connected disease shall be service connected. Where the determinative issue involves medical causation or medical diagnosis, competent medical evidence to support the claim is required. See Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). In this case, the veteran received extensive and expert medical care in the treatment of colon cancer. Not one of the health-care providers reported a clinical association between colon cancer with metastasis to the lung and service-connected disability. Also there is no legal basis to conclude that the service-connected disability aggravated the nonservice-connected colon cancer with lung metastasis. Leopoldo v. Brown, 4 Vet.App. 216, 218-219 (1993). Although it is primarily contended that the veteran's service-connected bronchiectasis with left lower lobe lobectomy disability contributed to his death, no other condition contributing to death was listed on the death certificate. Subsection (c)(3) of 38 C.F.R. § 3.312, however, provides that service-connected disease involving an active process affecting a vital organ should be carefully considered as a contributing cause of death from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of the disease primarily causing death. In this case, while Dr. Dervan stated that he had treated the veteran for respiratory illnesses he last treated the veteran in 1986. As the veteran died in 1990, this evidence has little probative value in assessing the debilitating effects and general impairment of health due to service-connected disability contemporaneous with the veteran's final illness. The record does show that, when colon cancer was first identified in 1985, there were no current cardiopulmonary problems and in 1987, when the cancer metastasized to the left lung, history was negative for unexplained weight loss, significant shortness of breath, night sweats or productive cough. Thereafter while there was X-ray evidence of pleural fibrosis or chronic obstructive pulmonary disease, the clinical findings were minimal as to pulmonary function, and, significantly, in early 1989, Dr. Drapkin stated that the veteran was medically disabled secondary to the cancer. The lungs were clear on admissions to the Morton Plant Hospital in February and March 1990 and on physical assessment at Hospice Care prior to his death. Finally, Dr. Drapkin reported that the veteran died, as expected, due to widespread metastatic disease. On the basis of this evidence, the Board finds that while the veteran's service-connected disability involved a vital organ, the left lung, it did not produce such debilitating effects and general impairment of health to the extent that it rendered him materially less capable of resisting the effects of colon cancer with metastases. Essentially the evidence shows that while the veteran may have had recurrent respiratory problems he was not significantly disabled until he was found to have pulmonary metastases due to colon cancer in 1987. Thereafter, the disease process progressed with metastases to other organs including the brain, resulting in his death. For these reasons, it is not shown that the service-connected disability contributed substantially or materially to the cause of the veteran's death. Although the cause of death due colon cancer with metastases was overwhelming and death was anticipated as alluded to by Dr. Drapkin, subsection (c)(4) of 38 C.F.R. § 3.312 provides that in such cases there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that such service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. There were no presenting pulmonary symptoms related to the service- connected bronchiectasis when the veteran was found to have a lung lesion in 1987. Subsequently, there is no record of treatment or suggestion that the condition was progressive or debilitating as not much is made of it in the medical records other than by history. Overall, the service-connected disability was fairly stable over the years. The record describes very well how the veteran continued to have slowly progressive pathological changes that were associated with metastatic colon cancer that caused his death. For these reasons, the service-connected disability was not of such severity as to have a material influence in accelerating death. As the medical evidence pertaining to the onset of cancer of the colon with metastases many years after service is uncontroverted, the preponderance of the evidence is against finding that cancer of the colon with metastases was related to service. Also the preponderance of the evidence is against finding that the service- connected disability contributed to the cause of the veteran's death. As the preponderance of the evidence is against the claim, it must necessarily be denied. II. Service Connection for Cancer of the Colon with Metastases for the Purpose of Accrued Benefits At the time of his death, the veteran had a pending claim for service connection for colon cancer. During the one year following his death, the appellant timely filed her claim for accrued benefits. 38 U.S.C.A. § 5121(c). Subsection (a) 38 U.S.C.A. § 5121 provides, in part, that on the death of the veteran, periodic monetary payments that he was entitled to on the basis of the evidence in the file at the date of death (accrued benefits), due and unpaid for a period of not more than one year prior to death, may be paid to his spouse. With respect to this issue, service connection for colon cancer with metastases, in reviewing the claim of service connection for the cause of death the Board considered all the evidence of record and found that the preponderance of the evidence was against the claim. The body of evidence is the same for the claim of service connection for colon cancer with metastases for the purpose of accrued benefits, except it is limited to the evidence in the file at the date of death. In summary, colon cancer was not shown to be present coincident with service as the service medical records are negative for any colorectal abnormality and colon cancer was first clinically manifested and diagnosed on the basis of a biopsy in 1985. In the absence of manifestations of cancer in the almost 40 year interval between the veteran's period of service and the clinical presentation of cancer, there is no positive evidence to link colon cancer to service by direct incurrence, continuity of symptomatology, the one-year presumptive period for a chronic disease, or initial postservice diagnosis beyond the one-year presumptive period. As for the argument of a causal relationship between colon cancer and service-connected disability, where the determinative issue involves medical causation or medical diagnosis, competent medical evidence to support the claim is required. See Grottveit at 92-93. No such evidence has been presented or suggested. Also there is no legal basis to conclude that the service-connected disability aggravated the nonservice-connected colon cancer. Leopoldo at 218-219. For these reasons, the preponderance of the evidence is against the claim of service connection for colon cancer with metastases for the purpose of accrued benefits. III. An Increased Rating for Bronchiectasis with Left Lower Lobe Lobectomy for the Purpose of Accrued Benefits At the time of his death, the veteran had a pending claim for an increased rating for his service-connected disability. During the one year following his death, the appellant timely filed her claim for accrued benefits. 38 U.S.C.A. § 5121(c). Subsection (a) 38 U.S.C.A. § 5121 provides, in part, that on the death of the veteran, periodic monetary payments that he was entitled to on the basis of the evidence in the file at the date of death (accrued benefits), due and unpaid for a period of not more than one year prior to death, may be paid to his spouse. In accordance with a precedent opinion of the United States Court of Veterans Appeals, the Board deems the reports of private physicians and the reports of private hospitalizations in the year prior to death as Department of Veterans Affairs examinations for rating the service-connected disability for the purpose of accrued benefits even though the reports were submitted after the veteran's death. Hayes v. Brown, 4 Vet.App. 353, 358-61 (1993) (interpreting the VA statutory, [38 U.S.C.A. § 5121], regulatory, [38 C.F.R. § 3.1000(d)(4)], and adjudicatory, [VA Manual M21-1, Part VI, para. 5.25], provision "evidence in the file at date of death"). The reports and records in the year prior to his death are relevant in rating the disability. The other reports and records are factors in evaluating the disability in relation to its history. 38 C.F.R. § 4.1. The service-connected disability was rated as 30 percent disabling under Diagnostic Code 6601, equating to moderate impairment due to bronchiectasis. A 60 percent rating under the same code requires severe impairment with considerable emphysema, impairment in general health manifested by loss of weight, anemia, or occasional pulmonary hemorrhages; occasional exacerbations of a few days' duration, with fever, are to be expected; demonstrated by lipiodal injection and layer sputum test. The 30 percent rating also equates to unilateral lobectomy under Diagnostic Code 6816. The next higher evaluation under Diagnostic Code 6818 requires bilateral lobectomy. Ratings under Diagnostic Codes 6600 to 6818, inclusive, will not be combined with each other. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). As for Dr. Dervan's statement that he treated the veteran for respiratory illnesses through 1986, it offers little in the way of evaluating the veteran's disability during the pertinent period. The record does show that, from February 1987 to the time of the veteran's death in April 1990, the veteran was treated for progressive colon cancer with metastases to the lung. While X-rays revealed pleural fibrosis or chronic obstructive pulmonary disease, occasional pulmonary hemorrhage or a productive cough was not demonstrated. On hospitalization in February 1987 history was negative for unexplained weight loss, significant shortness of breath, night sweats or a productive cough. Weight loss noted in August 1987 was not attributed to service-connected disability. He did experience a weight gain after chemotherapy was discontinued. On hospitalizations in February and March 1990, the chest was clear to percussion and auscultation. In March 1990 shortly before his death, Hospice Care records disclose that the lungs and airway were clear and respiration was regular. There was no dyspnea or oxygen required. There was a dry, but not a productive, cough. Overall, the evidence does not show that the service-connected bronchiectasis with left lower lobe lobectomy produced more than moderate impairment. As the evidence does not approach under 38 C.F.R. § 4.7 or equate to the criteria of severe impairment due to service-connected bronchiectasis with left lower lobe lobectomy, an increased rating for the purpose of accrued benefits is not warranted. Also, the case does not present such an exceptional or unusual disability picture with such related factors as frequent periods of hospitalization as to render impractical the application of the regular schedule standards. 38 C.F.R. § 3.321(b)(1). As for the appellant's argument that the veteran's service-connected bronchiectasis should have been evaluated for an increased rating after his left lower lobe lobectomy, the record shows that the rating decision of February 1951, which was after the lobectomy, and considered the lobectomy, is final. ORDER Service connection for the cause of the veteran's death is denied. Service connection for cancer of the colon with metastases for the purpose of accrued benefits is denied. An increased rating for bronchiectasis with left lower lobe lobectomy for the purpose of accrued benefits is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (MEMBER TEMPORARILY ABSENT) NANCY I. PHILLIPS SAMUEL W. WARNER (CONTINUED ON NEXT PAGE) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.