Citation Nr: 0006844 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 98-13 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151. 3. Entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD J.M. Daley, Associate Counsel INTRODUCTION The veteran served from January to June 1943. He died August 27, 1996; the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The veteran died August 27, 1996, of metastatic adenocarcinoma of unknown primary origin site. 2. At the time of the veteran's death, he was service- connected for varicose veins, evaluated as 30 percent disabling. He had no other adjudicated service-connected disabilities. 3. The record contains no competent evidence of any nexus between the cause of the veteran's death and military service or service-connected disability. 4. During the veteran's final hospitalization in August 1996, he was treated with various medications including heparin which, according to the medical records, was given to him because he mostly likely had a hypercoagulable state secondary to his cancer. 5. The heparin was discontinued with the consent of the family. 6. There is no medical evidence that any of the VA treatment the veteran received in August 1996 caused or contributed to his death. 7. The veteran was not continuously rated totally disabled for any period preceding his death. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The criteria for entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 1991); 38 C.F.R. § 3.22 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran's service medical records are negative for notation of any cancers. During his lifetime the veteran was service-connected for bilateral varicose veins, evaluated as 30 percent disabling, from July 13, 1943. The RO denied an increase in the assigned disability rating on multiple occasions, the last time being in a rating decision dated in January 1987. In October 1986, the veteran underwent left lower extremity varicose vein surgery, performed at a VA facility. His discharge medication was erythromycin. A 1987 VA medical record indicates that the veteran's varicose veins were well-controlled with support hose. VA medical records dated in 1988 and 1989 indicate that the veteran was wearing support hose for his varicose veins. VA records reflect treatment in June 1992 for right face melanoma and carotid artery occlusion. Records dated in 1993 and 1994 reflect follow-up evaluations for skin lesions. The veteran was hospitalized at the Roseburg VA Medical Center (VAMC) from August 2 to August 8, 1996, having been referred there from an outpatient clinic. The hospital records indicate that he had a history of left lower leg varicose vein ligation and stripping in 1986, prior history of a parotid gland tumor in 1965, and excision of a melanoma a few years earlier. Also noted were angiograms showing total occlusion of the right internal carotid artery. The veteran's current complaints included left vocal cord paralysis, difficulty swallowing and worsening thoracic pain. Diagnostic studies revealed a mass in the area of the esophagus and a spot on the anterior left rib. Testing revealed that the lymph nodes were involved in a malignant process, undifferentiated adenocarcinoma. The examiner was suspicious of a metastatic lesion in the thoracic spine, noting the past history of a malignancy of the right parotid gland and the melanoma. The hospitalization report notes that the etiology of the primary tumor was not apparent at that time, but that if the veteran's back pain was not related to osseous metastasis an occult primary in the pancreas would be suspected. The primary diagnosis was metastatic adenocarcinoma, possibly from the pancreas. The veteran was referred to the Portland VAMC for palliative therapy. Records of the veteran's terminal hospitalization at Portland from August 8 to August 27, 1996, reflect that he underwent various procedures including G-tube placement and radiation treatment to the spine. Records note a rapid decline in his physical and mental state. He developed an infection and had a positive VQ scan for pulmonary emboli times two. He was placed on continuous heparin as he "most likely has a hypercoagulable state secondary to his adenocarcinoma." It was determined by the family that due to the veteran's decline the heparin and treatment with an intravenous antibiotic should be discontinued. On August 23, 1996, the continuous infusion of heparin was discontinued; antibiotics were discontinued thereafter. The hospital report notes that "the patient's family stated that they did understand that with discontinuing the heparin and the IV antibiotics, that he was at increased risk for pulmonary embolism and further infection." The veteran's status continued to decline. He died August 27, 1996. The discharge report indicates that the primary diagnosis was metastatic adenocarcinoma of unknown primary site with metastases to the spine. A VA Radiation Oncology summary dated August 28, 1996, notes that the veteran had adenocarcinoma of the mediastinum and cervical nodes from unknown primary site with metastatic disease in the thoracic and cervical spine. The summary also reflects that during treatment the veteran had a pulmonary embolism and sepsis and that the family desired to discontinue all therapeutic modalities. The death certificate shows the cause of death as metastatic adenocarcinoma of unknown primary origin site of one month's duration; it does not note any underlying or contributory causes of death. An autopsy was not performed. The appellant claimed entitlement to death benefits, and, in a decision dated in January 1998, the RO denied entitlement to service connection for the cause of the veteran's death and to DIC benefits pursuant to 38 U.S.C.A. § 1318. In a statement received in February 1998, accepted as a notice of disagreement, the appellant argued that the veteran's varicose veins contributed to his death and that blood clotting was an issue in the veteran's case. In a supplemental statement of the case the RO included laws and regulations pertinent to 38 U.S.C.A. § 1151 entitlement and denied such. The appellant's representative has indicated pursuit of all issues. The appellant testified at a personal hearing in October 1999. She indicated that the veteran had been taking a blood thinner and that when he went off the blood thinner he had blood clots, suggesting that blood clots were related to his death. She testified regarding the veteran's varicose vein surgery, stating that when the surgery was performed they had been advised to watch for blood clots. She indicated that no physician had ever stated that a medication/blood thinner or the varicose veins actually caused or hastened the veteran's death and that, when he was taken off heparin during his terminal hospitalization, the family was told that it was not a good thing to do but that it would be done if the family desired. Transcript. Pertinent Regulations Service connection In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and certain chronic diseases, such as cancer, become manifest to a degree of 10 percent within one year from the date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This is a rebuttable presumption. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may also be granted for a 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). Cause of Death To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused, or contributed substantially or materially to cause the veteran's death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For the disability to constitute a contributory cause, 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 U.S.C.A. § 1310 (West 1991); 38 C.F.R. §§ 3.310, 3.312 (1999). 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. 38 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injury of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). 38 U.S.C.A. § 1151 Under 38 U.S.C.A. § 1151 (West 1991) it is provided that, when a veteran suffers injury or aggravation of an injury as a result of VA hospitalization or medical or surgical treatment, not the result of the veteran's own willful misconduct or failure to follow instructions, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service- connected. The regulations implementing that statute appear at 38 C.F.R. §§ 3.358, 3.800 (1999). They provide, in pertinent part, that, in determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based is compared with the physical condition subsequent thereto. 38 C.F.R. § 3.358(b)(1). Compensation is not payable if additional disability or death is a result of the natural progress of the injury or disease for which the veteran was hospitalized. 38 C.F.R. § 3.358(b)(2). Further, the additional disability or death must actually result from VA hospitalization or medical or surgical treatment and not be merely coincidental therewith. 38 C.F.R. § 3.358(c)(1), (2). In addition, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain or intended to result from the VA hospitalization or medical or surgical treatment. 38 C.F.R. § 3.358(c)(3). To avoid possible misunderstanding as to the governing law, it must be noted that earlier interpretations of the § 1151 statute and implementing regulations required evidence of negligence on the part of VA, or the occurrence of an accident or an otherwise unforeseen event. Those provisions were invalidated by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") in the case of Gardner v. Derwinski, 1 Vet. App. 584 (1991). The United States Court of Appeals for the Federal Circuit issued a decision in the same case, Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), as did the United States Supreme Court, Brown v. Gardner, 115 S. Ct. 552 (1994). In March 1995, the Secretary published an interim rule amending 38 C.F.R. § 3.358 to conform to the Supreme Court decision. The amendment was made effective November 25, 1991, the date of the Gardner decision by the Court. 60 Fed. Reg. 14,222 (March 16, 1995). The interim rule was later adopted as a final rule, 61 Fed. Reg. 25,787 (May 23, 1996), and codified at 38 C.F.R. § 3.358(c) (1997). In 1994 the Supreme Court found that the regulation at 38 C.F.R. § 3.358(c)(3) exceeded statutory authority by requiring fault on the part of the VA in order for an appellant to prevail on a claim for benefits under 38 U.S.C.A. § 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991), aff'd. sub nom, Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd., 115 S. Ct. 552 (1994). The cited regulation was amended to remove the "fault" requirement, with the final rule effective July 22, 1996. Subsequently, the United States Congress again amended the regulation for the effective purpose of overruling the Supreme Court's decision in the Gardner case and re-instituted a negligence requirement in 38 U.S.C.A. § 1151 claims. The new amendment is effective with respect to claims filed on or after October 1, 1997. 38 U.S.C.A. § 1318 A VA claimant may receive DIC benefits in the same manner as if the death were service-connected, if not based on misconduct, under any one of the three following theories: 1) If the veteran was in actual receipt of compensation at a total disability rating for 10 consecutive years preceding death; 2) if the veteran would have been entitled to receive such compensation but for clear and unmistakable error (CUE) in previous final RO decisions and certain previous final Board decisions; or 3) if, on consideration of the "evidence in the veteran's claims file or VA custody prior to the veteran's death and the law then or subsequently made retroactively applicable", the veteran hypothetically would have been entitled to receive a total disability rating for a period or periods of time, when added to any period during which the veteran actually held such a rating, that would provide such a rating for at least the 10 years immediately preceding the veteran's death. 38 U.S.C.A. § 1318 (West 1991); 38 C.F.R. § 3.22 (1999); Marso v. West, No. 97- 2178 (U.S. Vet. App., December 23, 1999); Cole v. West, No. 97-679 (U.S. Vet. App. Dec. 23, 1999). Consideration of CUE requires that the appellant first specifically raise the issue. See Ruiz v. Gober, 10 Vet. App. 352, 357 (1997). The Court more recently indicated that CUE under § 1318 must be specifically raised by the appellant. Cole v. West, No. 97-679 (U.S. Vet. App. Dec. 23, 1999). Well groundedness "[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the Court held that a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." Generally, for a claim to be well grounded, there generally must be (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. See Anderson, supra; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For the purposes of determining whether this claim is well grounded, the Board must presume the truthfulness of the evidence, "except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." King v. Brown, 5 Vet. App. 19, 21 (1993). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107, Murphy v. Derwinski, 1 Vet. App. 78 (1990). Analysis The appellant argues, in essence, that the use of blood thinners to treat the veteran's service-connected varicose veins contributed to his death. She specifically argues that such resulting in "massive blood outleting (sic)" and deterioration of his physical condition and thus she is entitled to received compensation. She also suggests that the discontinuance of that medication may have resulted in the development of blood clots and that the clots may have been a factor in his death. Service Connection for the Cause of Death A well-grounded claim of entitlement to service connection for the cause of the veteran's death requires competent evidence of the veteran's death; evidence of a disease or injury in service that resulted in disability; and medical evidence providing a nexus between the veteran's death and service or a service-connected disability (or treatment therefore). 38 C.F.R. § 3.312; Darby v. Brown, 10 Vet. App. 243, 246 (1997); Ramey v. Brown, 9 Vet. App. 40, 46 (1996). See also, Caluza, supra. The cause of the veteran's death, as identified by his death certificate and terminal hospital records, was metastatic adenocarcinoma. He was not service-connected for any cancer and, although he had had a post-service parotid gland tumor and melanoma prior to his terminal illness, there is no competent evidence in the claims file showing that any type of cancer was present in service, manifested within a year thereafter, or otherwise related to service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. The terminal medical records and death certificate do not contain any opinion or other notation indicating that the veteran's only service-connected disability, varicose veins, caused or contributed to his death. The appellant has herself acknowledged that no such opinion exists. Moreover, a review of the claims file indicates that the veteran's service-connected varicose veins were stable with treatment for many years and did not materially affect his overall health or bodily functions. See 38 C.F.R. § 3.312(c)(1), (2). There is, in short, no competent opinion in the file relating varicose veins to the veteran's death, or otherwise relating the cause of the veteran's death in any way to his period of service. As a layperson, the appellant is not competent to provide the requisite nexus evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Although service connection for the cause of death could be predicated on a showing that treatment for a service connected disability was a causative factor in a veteran's death, that is not shown in this case. In regard to "blood thinners," the terminal medical records indicate that heparin was instituted because the veteran's cancer was considered to have resulted in a hypercoagulation state, not because of his varicose veins. In any event, there is no medical evidence or opinion that heparin, regardless of the condition that necessitated its use, caused or contributed it the veteran's death from cancer. Additionally, although the terminal hospital records indicate that discontinuance of heparin presented an increased risk of pulmonary embolism, there is no evidence or opinion that an embolus developed and was a factor in the veteran's death. Moreover, if the veteran had developed an embolus there would have to be medical evidence or opinion that it was as likely as not due to the varicose veins rather that the malignancy and that it was a factor in the veteran's death. There simply is no competent evidence that such occurred and any allegation that it did is only speculation on the part of the appellant. Thus, absent competent evidence of a relationship between the cause of the veteran's death and his period of service or his service-connected disability, the appellant's claim is not well grounded and must be denied. 38 U.S.C.A. § 1151 Since the appellant's § 1151 claim was filed before October 1997, it must be adjudicated in accordance with the earlier version of 38 U.S.C.A. § 1151 and the May 23, 1996, final regulation. Thus, neither evidence of an unforeseen event nor evidence of VA negligence is required here. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). A well grounded claim for benefits under 38 U.S.C.A. § 1151 requires medical evidence of a current disability; medical or lay evidence of incurrence or aggravation of an injury as the result of hospitalization, etc., and medical evidence of a nexus between that asserted injury or disease and the current disability. See Jones v. West, 13 Vet. App. 129 (1999). It appears the appellant in this case argues that treatment, specifically with blood thinners, caused and/or contributed to the veteran's death due to adenocarcinoma. As shown by the medical evidence, during his terminal hospitalization the veteran was treated with heparin for a coagulation problem that treating medical professionals attributed to his adenocarcinoma and not to his service-connected varicose veins. The record reflects that veteran's health was rapidly failing during his terminal hospitalization. Furthermore, based on his state of health, the appellant and the veteran's family made the informed decision to stop administration of heparin and antibiotic treatments to the veteran. VA records indicate that the appellant voiced understanding of the effect of stopping the veteran's heparin and antibiotic; i.e., that he was at increased risk for embolism and infection. The appellant consented and such medications were stopped. While the record shows that the veteran developed several pulmonary emboli during his hospitalization, that was prior to his placement on continuous heparin. There is no competent medical opinion of record that he actually developed any emboli after heparin was discontinued or an embolus caused or materially contributed to his death from adenocarcinoma. Rather, the evidence indicates that the veteran died from progressive adenocarcinoma and in no way indicates that his death resulted from or was hastened by any VA treatment provided in August 1996. The appellant has submitted no medical evidence or opinion showing that the veteran's death was due to treatment rendered by the VA rather than being the end result of his progressive cancer which had already metastasized when it was first noted. The appellant's own opinion, as that of a pay person, is not competent evidence so as to make the claim well grounded. The Board recognizes that the Court has held that there is some duty to assist the appellant in the completion of her application for benefits under 38 U.S.C.A. § 5103 (West 1991 & Supp. 1999) even where the claims appear to be not well- grounded where he or she has identified the existence of evidence that could plausibly well-ground the claim. See generally, Beausoleil v. Brown, 8 Vet. App. 459 (1996); and Robinette v. Brown, 8 Vet. App. 69 (1995), as modified in this context by Epps v. Brown, 9 Vet. App. 341, 344 (1996). In the instant case, however, the appellant has not identified any medical evidence that has not been submitted or obtained, which will support a well-grounded claim for DIC benefits under 38 U.S.C.A. § 1151. 38 U.S.C.A § 1318 Finally, the Board notes that the RO has denied entitlement to DIC benefits under 38 U.S.C.A. § 1318. The appellant has offered no specific argument with respect to that regulation. The law provides that in a case such as this, where the appellant filed her claim prior to January 21, 2000, she may establish entitlement by showing that the veteran was totally disabled for a continuous period of 10 years immediately preceding death or was totally disabled since military discharge for a continuous period of not less than 5 years immediately preceding death. In this case, the veteran was clearly not rated 100 percent disabled for any period during his lifetime. Regulations further provide for establishing entitlement based on CUE in some instances. However, the appellant in this case has not raised a claim of CUE in the last final decision denying increased benefits, dated in December 1986, or any prior final RO decision. See Ruiz, supra. Moreover, the last final decision in this case, even if found to contain CUE in that a 100 percent evaluation was warranted at that time, would not result in an assignment of a 100 percent evaluation for a 10-year period prior to the veteran's death. As the appellant filed subsequent to March 4, 1992 (the effective date of 38 C.F.R. § 20.1106 (1999)); and insofar as the final adjudication of the level of the veteran's service- connected disabilities in December 1986 was, in any case, less than 10 years prior to his death, consideration of hypothetical entitlement is not required in this case. See Wingo v. West, 11 Vet. App. 307 (1998); Carpenter v. West, 11 Vet. App. 140, 146-147 (1998). The appellant must, in any case, raise that argument with specificity. Cole v. West, No. 97-679 (U.S. Vet. App. Dec. 23, 1999). Thus, the appellant is denied entitlement pursuant to 38 U.S.C.A. § 1318. ORDER Service connection for the cause of the veteran's death is denied. Entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 is denied. Entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 is denied. JANE E. SHARP Member, Board of Veterans' Appeals