On appeal from the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant and her daughter
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from February 1967 to
September 1969, and from October 1974 to May 1992. He died
on September [redacted], 1999. The appellant claims benefits as the
veteran's surviving spouse.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a decision of February 2000 by the
Department of Veterans Affairs (VA) Portland, Oregon,
Regional Office (RO). The decision denied service connection
for the cause of the veteran's death.
A hearing was held at the RO before the undersigned Member of
the Board in November 2001.
The Board notes that, in addition to the claim for service
connection for the cause of the veteran's death, the issues
on appeal also included entitlement to benefits under
38 U.S.C.A. § 1318. However, in light of the allowance by
the Board of the service connection issue, the claim for the
same benefits under § 1318 has become moot.
FINDINGS OF FACT
1. All evidence necessary for equitable resolution of the
issue on appeal has been obtained.
2. The veteran died on September [redacted], 1999, at the age of 53
years.
3. During his lifetime, the veteran established service
connection for mitral valve prolapse with sustained
hypertension and left ventricular hypertrophy, status post
pacemaker insertion, rated as 30 percent disabling; lumbar
arthritis with right thigh radiculopathy, rated as 20 percent
disabling; thoracic arthritis, rated as 10 percent disabling;
sinusitis with rhinitis, sinus headaches, and chronic nose
bleeds, rated as 10 percent disabling; right ear hearing
loss, rated as noncompensably disabling; a right inguinal
hernia repair, rated as noncompensably disabling,; left knee
crepitus, rated as noncompensably disabling; and tinnitus,
rated as noncompensably disabling.
4. The veteran's death certificate shows that the immediate
cause of his death was respiratory failure due to or as a
consequence of aspiration pneumonia due to or as a
consequence of esophageal cancer.
5. The veteran's esophageal cancer was related to chronic
reflux which began during service and to aggravation of the
reflux by medication taken to treat his service-connected
disabilities.
CONCLUSIONS OF LAW
Disabilities incurred in service caused or contributed
substantially and materially to cause the veteran's death.
38 U.S.C.A. § 1310 (West 1991 & Supp. 2001); 38 C.F.R.
§ 3.312 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
During the pendency of this appeal, on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).
The Act is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. The new law
eliminates the concept of a well-grounded claim, and
redefines the obligations of the VA with respect to the duty
to assist claimants in the development of their claims.
First, the VA has a duty to notify the appellant and
representative, if represented, of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2001). Second, the
VA has a duty to assist the appellant in obtaining evidence
necessary to substantiate the claim. 38 U.S.C.A. § 5103A
(West Supp. 2001).
The VA has promulgated revised regulations to implement these
changes in the law. See 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(to be codified as amended at 38 C.F.R §§ 3.102, 3.156(a),
3.159 and 3.326(a)). The intended effect of the new
regulations is to establish clear guidelines consistent with
the intent of Congress regarding the timing and the scope of
assistance VA will provide to a claimant who files a
substantially complete application for VA benefits, or who
attempts to reopen a previously denied claim.
The Board finds that the VA's duties under the law and
recently revised implementing regulations have been
fulfilled. The appellant was provided adequate notice as to
the evidence needed to substantiate her claim. The Board
concludes the discussions in the rating decision, the
statement of the case (SOC) and letters sent to the appellant
informed her of the information and evidence needed to
substantiate the claim and complied with the VA's
notification requirements. The RO also supplied the
appellant with the applicable regulations in the SOC. The
basic elements for establishing service connection for the
cause of death have remained unchanged despite the change in
the law with respect to duty to assist and notification
requirements. The VA has no outstanding duty to inform the
appellant that any additional information or evidence is
needed.
The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issue on appeal has been
obtained. The RO made appropriate efforts to attempt to
obtain all relevant evidence identified by the appellant.
The evidence includes the veteran's service medical records,
his post service treatment records, and a copy of his death
certificate. A medical opinion has also been obtained.
Also, the appellant has had a hearing. For the foregoing
reasons, the Board concludes that all reasonable efforts were
made by the VA to obtain evidence necessary to substantiate
the claim. The Board finds that the evidence of record
provides sufficient information to adequately evaluate the
claim. Therefore, no further assistance to the appellant
with the development of evidence is required.
In the circumstances of this case, a remand to have the RO
take additional action under the new implementing regulations
would serve no useful purpose. See Soyini v. Derwinski, 1
Vet. App. 540, 546 (1991) (strict adherence to requirements
in the law does not dictate an unquestioning, blind adherence
in the face of overwhelming evidence in support of the result
in a particular case; such adherence would result in
unnecessarily imposing additional burdens on the VA with no
benefit flowing to the veteran); Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994) (remands which would only result in
unnecessarily imposing additional burdens on the VA with no
benefit flowing to the veteran are to be avoided). The VA
has satisfied its obligation to notify and assist the
claimant in this case. Further development and further
expending of the VA's resources are not warranted. Taking
these factors into consideration, there is no prejudice to
the claimant in proceeding to consider the claim on the
merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by service. See
38 U.S.C.A. §§ 1110, 1131 (West 1991). If a chronic disorder
such as arthritis, a cardiovascular disease or a malignant
tumor is manifest to a compensable degree within one year
after separation from service, the disorder may be presumed
to have been incurred in service. See 38 U.S.C.A. §§ 1101,
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Service connection may also be granted for disability shown
to be proximately due to or the result of a service-connected
disorder. See 38 C.F.R. § 3.310(a). This regulation has
been interpreted by the United States Court of Appeals for
Veterans Claims (Court) to allow service connection for a
disorder which is caused by a service-connected disorder, or
for the degree of additional disability resulting from
aggravation of a nonservice-connected disorder by a service-
connected disorder. See Allen v. Brown, 7 Vet. App. 439
(1995).
To establish service connection for the cause of the
veteran's death, the evidence must show that disability
incurred in or aggravated by service caused or contributed
substantially or materially to cause death. For a service-
connected disability to be the cause of death, it must singly
or jointly with some other condition be the immediate or
underlying cause or be etiologically related thereto. See
38 U.S.C.A. § 1310; 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; 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. See 38 C.F.R.
§ 3.312(c)(1).
Service-connected diseases or injuries involving active
processes affecting vital organs should receive careful
consideration as a contributory cause of death, the primary
cause being unrelated, 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 other disease or
injury causing death. Where the service-connected condition
affects vital organs as distinguished from muscular and
skeletal functions and is evaluated as 100 percent disabling,
debilitation may be assumed. See 38 C.F.R. § 3.312(c)(3).
There are primary causes of death which by their very nature
are so overwhelming that eventual death can be anticipated
irrespective of coexisting conditions, but even 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. See 38 C.F.R.
§ 3.312(c)(4).
The veteran died on September [redacted], 1999, at the age of 53
years. During his lifetime, the veteran established service
connection for mitral valve prolapse with sustained
hypertension and left ventricular hypertrophy, status post
pacemaker insertion, rated as 30 percent disabling; lumbar
arthritis with right thigh radiculopathy, rated as 20 percent
disabling; thoracic arthritis, rated as 10 percent disabling;
sinusitis with rhinitis, sinus headaches, and chronic nose
bleeds, rated as 10 percent disabling; right ear hearing
loss, rated as noncompensably disabling, a right inguinal
hernia repair, rated as noncompensably disabling; left knee
crepitus, rated as noncompensably disabling; and tinnitus,
rated as noncompensably disabling.
The veteran's death certificate shows that the immediate
cause of his death was respiratory failure due to or as a
consequence of aspiration pneumonia due to or as a
consequence of esophageal cancer.
During a hearing held in November 2001, the appellant
testified in support of her claim. She stated, in essence,
that the death resulted in part from stomach problems which
began in service, and also from his service-connected heart
disorder. She said that she believed that his service-
connected heart disorder weakened him and that if his heart
had been stronger he might have been able to withstand the
surgery for treatment of his esophageal cancer. The
appellant's representative also reported during the hearing
that the veteran had stomach problems when he got out of
service, and that these lead to the cancer itself.
The Board finds that the testimony is supported by most of
the objective medical evidence which is of record. The
veteran's service medical records show that he was treated on
a number of occasions for complaints pertaining to reflux
type problems. For example, a record dated in March 1986
shows that the veteran reported having chest pain. The
assessment was chest pain, rule out angina, hiatal hernia,
upper GI ulcers, GER, pancreatitis, etc. A record dated
later in March 1986 shows that the assessment was that the
veteran's symptoms were most likely secondary to esophagitis
and nicotine withdrawal. A record dated in April 1986 shows
that Tagamet resolved his epigastric problems. A record
dated later in April 1986 shows that Tagamet was
discontinued, and Gaviscon was prescribed in its place. A
report of medical history given by the veteran in September
1986 shows that he checked a box indicating a history of pain
or pressure in the chest. On the reverse side, it was noted
that his chest pain was probably associated with indigestion.
The post service medical evidence shows continuing problems
with reflux after service. The report of a medical
examination conducted for the VA in July 1992, shortly after
the veteran's separation from service, shows that the
problems noted on the examination included heartburn which
started in 1984. It was described as being much worse with
stress and was treated intermittently with Gaviscon. It was
noted that the veteran took Motrin tablets twice a day for
his back, and also was taking medication with it to prevent
GI problems. The pertinent diagnosis was history of
intermittent reflux esophagitis, currently stable, rare,
intermittent.
A record dated in April 1993 from the Mid Columbia Medical
Center shows that while being treated for a complaint of
passing out while driving, it was also noted that the veteran
had a history of GI upset with Motrin taken for orthopedic
problems. He was to continue his H2 blocker as well as
antacids as needed.
The report of an examination conducted by the VA in January
1994 shows that the veteran had a history of stomach problems
on and off for approximately 10 years by his report. He had
a history of gastroesophageal reflux disease throughout this
time with an upper GI approximately 5 years ago documenting
that. His symptoms had been getting worse in the last few
years. He had noted dysphagia with solid foods sticking in
his throat. Following examination, the impression was
history of gastroesophageal reflux disease with worsening
symptoms including dysphagia for solids.
A private medical record dated in June 1994 from Emily Moser,
M.D., shows that the veteran's medical history was
significant for esophageal reflux. His medications included
Prilosec and Zantac. A private medical record dated in
October 1994 reflects that the veteran reported that he was
having a lot of problems with his reflux. It was noted that
this was an old problem. The pertinent assessment was reflux
symptoms. A consultation report from the Tuality Community
Hospital dated in May 1995 shows that the veteran was treated
for epigastric pain and left upper quadrant abdominal pain.
It was also noted that he had a history of a hiatal hernia
and chronic reflux. The report of a
esophagogastroduodenoscopy conducted at the Tuality Community
Hospital contains a diagnosis of a hiatal hernia, a slightly
irregular squamocolumnar junction, and antral erythema.
A private treatment record dated in May 1999 shows that the
veteran had chronic intermittent dysphagia dating back many
years. Since December 1998, however, the problem had
accelerated. It was noted that he had a past history of
reflux. An upper GI series was interpreted as showing a
malignant appearing structure. An esophagogastroduodenoscopy
was advised.
A consultation report dated in June 1999 from the Department
of Oncology at the St. Vincent Medical Center shows that the
veteran had a chief complaint of increasing trouble
swallowing solid foods. Following evaluation, the diagnosis
was Stage II adenocarcinoma of the gastroesophageal junction.
It was noted in the report that he had a history of
gastroesophageal reflux disease and that his medications
included Prilosec.
As was noted above, the veteran's death certificate shows
that he died on September [redacted], 1999, and the immediate cause
of his death was respiratory failure due to or as a
consequence of aspiration pneumonia due to or as a
consequence of esophageal cancer.
In December 2000, the RO requested a VA opinion to determine
whether the veteran's service-connected heart disorder
contributed to his death. In the request it was noted that
medical records reflected that the veteran underwent surgery
for treatment of his cancer, and that his postoperative
course was complicated by the development of atrial
tachyarrhythmias. In an opinion dated in January 2001, a VA
physician concluded that the veteran's heart condition did
not contribute to his death or accelerate his death. He
noted that the transient arrhythmias which the veteran
experienced were common following surgeries and were
unrelated to the veteran's cause of death.
The appellant's representative submitted a medical opinion
dated in February 2002 from Craig N. Bash, M.D., a neuro-
radiologist. The document reflects that the doctor reviewed
the veteran's claims files and medical records for the
purpose of making a medical opinion concerning his demise due
to esophageal cancer, aspiration pneumonitis and respiratory
failure. He made the following comments:
It is my opinion that this patient's demise was due
to his service acquired arthritis associated
medication requirements, and gastroesophageal
reflux problems, which resulted in his esophageal
adenocarcinoma.
It is my opinion that this patient should have been
service connected for his GI problems by the July
1995 rating decision because the patient's GI
problems have been longstanding and occurred during
service time according to Dr. Bryan.
With all due respect to [the VA physician's]
opinion (dated 01/07/2001) concerning Cardiac
system, I still believe that this patient's demise
was due to medications that he was taking and/or
his service related GI problems which resulted in
his esophageal cancer. I disagree with [the VA
physician's] opinion because he only concerned
himself with the cardiac system and he did not
explore other possible service related causes of
death. [The VA physician's] opinion was in direct
response to a very narrow set of cardiac related
questions generated by the rating board. If the
Board had asked him about any and all potential
service related causes of death I suspect [the VA
physician] would have generated an analysis and
opinion which agree with my opinion contained in
this letter. Therefore, my current opinion and
[the VA physician's] opinion are not conflicting
because mine relates to the potential global
service related conditions that might have caused
or contributed to this patient's demise and [the VA
physician's] opinion only deals with the potential
cardiac related causes of death.
[portion deleted]
It is clear from the records that this patient had
a long history both while in service and after
service of gastroesophageal (GE) reflux disease and
secondary symptoms of pain on swallowing
(Odynophagia = pain on swallowing)/difficulty
swallowing (dysphagia)/acid in throat
(dyspepsia/pyrosis). Imaging studies describe a
hiatal hernia which is known to be associated with
GE reflux disease. This patient's reflux disease
was also likely caused and/or made worse by his
chronic need for Motrin/Tolectin and other non-
steroidals (NSAIDS) to treat his chronic service
connected arthritis diagnoses. According to Drug
Facts and Comparisons 2001 (page 848-849) a partial
list [of] adverse reactions to NSAIDS are
"...Gastritis...heartburn...dyspepsia...ulcer...". Reflux
disease is known to cause "esophageal
stricture...Barrette's esophagus (a precursor to
adenocarcinoma of the esophagus)...reflux
esophagitis...pulmonary aspiration..." Cecil's page
660-661.
It is my opinion that this patient's demise was due
to his service acquired arthritis and
gastroesophageal reflux problems via the two
following pathophysiologic pathways:
Service connected arthritis caused the patient to
use NSAIDS which caused the patient to have
heartburn and reflux disease and esophageal
stricture and Barrette's esophagus and
adenocarcinoma of the esophagus which required
surgical removal and placement of intrathoracic
stomach [tube] which caused the patient to develop
an anastomotic leak and aspirate and develop
aspiration pneumonitis which led to his demise.
The second pathophysiologic pathway was also in
effect in this patient:
Service acquired gastroesophageal reflux disease
whether independently or via the patient's hiatal
hernia (the patient in 1994 described a 10 year
history of gastric/reflux problems) that caused his
stricture and the above cascade of pathology which
eventually lead to the patient's demise.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the evidence supports the claim for service
connection for the cause of the veteran's death. The medical
opinion from Dr. Bash, which is to the effect that the
veteran's esophageal cancer was related to service and to
service connected disabilities, is not contradicted by any
other medical opinion. Thus, the evidence shows that the
veteran's esophageal cancer was related to chronic reflux
which began during service and to aggravation of the reflux
by medication taken to treat his service-connected
disabilities. Therefore, the Board finds that disabilities
incurred in service caused or contributed substantially and
materially to cause the veteran's death. Accordingly,
service connection is warranted for the cause of the veteran
death.
ORDER
Service connection for the cause of the veteran's death is granted.
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.
