On appeal from the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon
THE ISSUES
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESSES AT HEARING ON APPEAL
Appellant and her daughter
ATTORNEY FOR THE BOARD
Michael Martin, Counse1
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 servie 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 beEm 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 rhinitin, 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 an 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.
CONCLUSION OF LAW
Disabilities incurred in service caused or contributed substantially and materially to cause the veteran's death. 38 U.S.C.A. § 1310 (WeBt 1991 & Supp. 2001); 38 C.F.R.
§ 3. 312 (2001}.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
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 subBtantiate 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)). 'rhe 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 theinformation 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 esta.blishing 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 treatnent 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 actton 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 Ehe 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 cused by a service-connected disorder, or for the degree of additional disability resulting from aggravation of a nonse:rvice-connected disorder by a serviceconnected disorder. See Allen v. Brown, 7 Vet. App. 439
(1995).
To establish service cc:mnection 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 serviceconnected 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 o:E death is inherently one not related to the principal cause. In determining whether the serviceconnected 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 extentthat 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 forconsideration 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 serviceconnected 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 whil1e being treated for a complaint of passing out while driving, it was also noted that the veteran
had a history of GI up:set 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 s 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 wassignificant for esophaq-eal reflux. His medications included Prilosec and Zantac. A private medical record dated in October 1994 reflects ·:hat 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 squamocolummar 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 s,eries 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 re9ort 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 esophagaeal 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 neuroradiologist. 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 requirement, 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 long standing 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 phyiscian'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 9enerated 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 conciitions 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.
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 Motri:n/Tolectin and other nonsteroidals (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 c.ause II esophageal stricture ... Barrette's esophagus (a precursor to adenocarcinoma of the esophagus) ... reflux esophagitis ... pulmonary aspiration ... 11 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 pathophysiol,:,gic 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 c,aused 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 gastr,:,esophageal reflux disease
whether independently 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 abov,e 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 c,ancer 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 serice 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.
