Citation Nr: 0002210 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 96-48 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia 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 ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran served on active duty from March to November 1945, and died on August [redacted], 1995. This appeal arises from a decision by the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of the veteran's death. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The veteran died in August 1995. The death certificate lists the cause of death as respiratory failure due to lung carcinoma due to possible pulmonary embolism. 3. At the time of his death, the veteran was service- connected for pleurisy of the right base, right lung with pleural adhesions costophrenic angle, residuals of unresolved pneumonia; this disability hastened and contributed to his death. CONCLUSION OF LAW The veteran's service-connected pulmonary disability contributed substantially or materially to his death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. §§ 3.5, 3.102, 3.3.12 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the appellant's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1998). See Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the appellant has presented a claim which is not implausible when her contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Factual Background The veteran died in August [redacted], 1995. The certificate of death listed the cause of death as respiratory failure due to lung carcinoma and possible pulmonary embolism. At the time of his death, the veteran was service-connected and in receipt of a 30 percent rating for chronic pleurisy of the right base, right lung with pleural adhesions costophrenic angle. Treatment records dated from December 1990 to April 1995 from Raymond L. Claterbaugh, Jr., M.D., reveal that during periodic visits, the veteran's lungs were clear and he had no complaint of shortness of breath or chest pain. A July 1995 computerized tomography (CT) scan revealed the presence of a left lung nodule. A flexible bronchoscopy and a mediastinoscopy with mediastinal lymph node biopsies were performed, as well as a left upper lobectomy with mediastinal lymph node dissection. The diagnosis was moderately differentiated mucinous adenocarcinoma of the left lung (stage I). In a September 1995 letter, William H. Polk, Jr., M.D., he related having performed a left upper lobectomy on the veteran in July 1995. The postoperative course included increased oxygen needs that eventually resolved. He noted that the veteran was more short of breath with ambulation than would be usual for someone with the pulmonary function tests that he had. The veteran developed shortness of breath and symptoms suggestive of pneumonia after discharge. He was readmitted and had a sudden cardiac arrest on August [redacted], 1995, the date of his death. Dr. Polk suspected that the cause of death was a combination of respiratory insufficiency and possibly a pulmonary embolism. The death summary from Alleghany Regional Hospital revealed that the veteran had undergone a left upper lobectomy about 10 days prior to his terminal admission. He was home for two days and complained of shortness of breath. He denied any coughing and had no chest pain. After admission his blood pressure continued to go up. He complained of shortness of breath. He subsequently expired. The family refused an autopsy. A November 1997 letter from Dr. Claterbaugh states that the veteran's history of severe pneumonia with pleural effusion of his right lung during service caused scarring of his right lung and possibly development of cancer of his right [left] upper lobe years later. He thought that there was a strong possibility that the veteran's lung cancer and ultimate death was a result of his severe pneumonia and scar tissue development during service. During her hearing before a member of the Board in June 1999, the appellant testified that the veteran's disability diminished he breathing capacity and took its toll over the years. She felt that it was a direct contributor to cardiovascular disease and poor circulation because it depleted the oxygen in his blood. It caused a susceptibility for weakness in his left lung. If his right lung had been functioning properly he might have recovered from the July 1995 surgery. The appellant testified that when Dr. Claterbaugh said that the veteran's lungs were clear he must have meant that the left one was clear because he knew that the right one was not. The appellant stated that if the veteran's right lung had functioned properly perhaps he would not have had the left lung problem and maybe he would have survived it. The veteran's right lung contributed to all kinds of problems that he had. A July 1999 letter from Dr. Claterbaugh states that the cancer was in the veteran's left upper lung. The function of his right lung was severely compromised by the pneumonia and pleural effusion that he had while in service. He added that the veteran's life was probably shortened by many years because of the damage from the pneumonia in 1945 and was unable to compensate for the portion of the left lung that was removed by surgery. In September 1999 the Board sought a VA medical opinion regarding the cause of the veteran's death. An October 1999 medical opinion states that the veteran's claims file, including his service medical records was reviewed. It was the examiner's opinion that the veteran's lung function was adequate in 1995. The inservice pneumonia and empyema left no major abnormalities on X-ray, nor was there any documented loss of volume or major changes of the right lung. Any deterioration of lung function was very minor and did not contribute to the diminution in life expectancy of the veteran. The pneumonia and empyema were not major underlying causes of the veteran's death, nor were they etiologically related or a principle cause of the veteran's death. Their contribution to the veteran's death was minor. Analysis Dependency and indemnity compensation (DIC) may be awarded to a surviving spouse upon the service-connected death of the veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.5(a) (1999); see generally 38 U.S.C.A. Chapter 11. Generally, the death of a veteran is service connected if "the death resulted from a disability incurred or aggravated [ ] in the line of duty in the active military, naval, or air service." 38 U.S.C.A. § 101(16); 38 C.F.R. § 3.1(k). The service-connected disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided or lent assistance to producing death. 38 C.F.R. § 3.312(c). Considering the entire record, the Board finds that the preponderance of the evidence is supports service connection for the cause of the veteran's death. Initially, the Board notes that, the death certificate and the terminal hospital records, do not indicate that the veteran's service-connected disability was directly implicated in the veteran's death. Thus, it is clear that the service-connected disability was not a principal cause of death. 38 C.F.R. § 3.312(b). However, when considering the opinion of Dr. Claterbaugh that the veteran's right lung was severely compromised in service and that his life was probably shortened and his right lung could not compensate for the loss of part of his left lung due to surgery, and the VA medical examiner's October 1999 opinion that the service-connected pulmonary pathology contributed in a minor way to the veteran's death, the Board finds that the preponderance of the evidence supports entitlement to service connection for the cause of the veteran's death. While it is realized that the VA examiner took great efforts to discounted any role that the service-connected pulmonary disorder had in the veteran's death, it should be pointed out that the term "minor" could be interpreted to be as much as 49 percent of the cause of death, with lung cancer encompassing 51 percent (major) of the cause of death. Absent a clear definition of "minor" by the VA examiner, and even the slightest implication that the service-connected disorder hastened his death by even one day or played a role in the veteran's demise, the evidence weighs in favor of the appellant. ORDER Entitlement to service connection for the cause of the veteran's death is allowed. RENÉE M. PELLETIER Member, Board of Veterans' Appeals