BVA9503326 DOCKET NO. 92-11 529 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD T. S. Kelly, Associate Counsel INTRODUCTION The veteran had active military service from May 1941 to March 1945. In April 1993, the Board of Veterans' Appeals (Board) remanded the matter to the regional office (RO) for additional development. As the additional development was accomplished, the matter is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran's service-connected schizophrenic reaction and the medications prescribed for that disorder caused his cancer. She further maintains that the veteran's service-connected schizophrenic reaction caused him to smoke, which in turn caused the lung cancer that led to his death. She maintains that service connection is warranted for the cause of the veteran's death. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. 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 preponderance of the evidence is against the claim for service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. The veteran died on December [redacted] 1991; lung cancer, with metastasis to the brain, the cause of the veteran's death, was not manifested in service or for many years following service and is not shown to be related to service or to the veteran's service-connected schizophrenic reaction or malaria. 3. The veteran's service-connected disabilities, paranoid type schizophrenic reaction and malaria, did not cause or contribute to cause the veteran's death. CONCLUSIONS OF LAW 1. Lung cancer, with metastasis to the brain, was not incurred in or aggravated by active service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 2. Service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. That is, we find that she has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which might assist the Board in reaching a decision. The record is complete, and no further assistance to the appellant is required to comply with the duty to assist the appellant mandated by 38 U.S.C.A. § 5107 (West 1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Where a veteran served continuously for 90 days or more during a period of war and cancer of the lung or brain becomes manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Regulations also provide that service connection may be granted for any 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) (1994). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The service-connected disability is considered the principal cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death, that it combined to cause death, or 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 is must be shown that there was a causal connection. 38 C.F.R. § 3.312 (1994). 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. Service-connected diseases or injuries 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 diseases or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3) (1994). At the time of the veteran's death, he was 100 percent service connected for a paranoid type schizophrenic reaction. The disorder had been rated 100 percent disabling since 1963. Consequently, the appellant was determined to be entitled to dependency and indemnity compensation under the provisions of 38 U.S.C.A. § 1318(b) (West 1991), on the basis that at the time of death the veteran was in receipt of compensation for a service-connected disability which for a period longer than 10 years immediately preceding death was rated 100 percent disabling. She was also determined to be eligible for 38 U.S.C.A. Chapter 35--Survivors' and Dependents' Educational Assistance Benefits. The purpose of this appeal is to establish entitlement to VA benefits for the veteran's burial at the higher, service-connected rate. The veteran's only other service-connected disability was malaria, which had long been inactive and rated as noncompensable. The December 1991 death certificate shows that the veteran was born in July 1918 and died in December 1991. The cause of death was lung cancer with metastasis to the brain. Paranoid schizophrenic reaction was not listed as a cause of death. Service medical records note no reports of lung or brain cancer while the veteran was in service. March 1945 VA treatment records show that the veteran's lungs were clear and resonant throughout and that his vocal fremitus, breath sounds, and whispered voice sounds were normal. No rales were reported at that time. At the time of a December 1948 VA examination, the veteran's respiratory system was reported as normal. X-rays taken of the veteran's chest at that time were also reported as normal. Physical examination and X-ray findings were also reported to be within normal limits at the time of an October 1963 VA hospitalization. Chest X-rays taken at the time of an October 1968 VA examination were also reported to be normal. During the veteran's January 1972 hospitalization for chronic, paranoid type, schizophrenia, physical examination was essentially within normal limits, with a normal chest X-ray being reported. The first objective evidence of lung difficulties is not until July 1974, at which time the veteran's private physician, Frank H. Birsner, M.D., reported marked diminution in pulmonary excursion with persistent rales in both lungs following coughing. Dr. Birsner noted that the veteran clinically represented chronic obstructive pulmonary syndrome. Chest X-rays taken during the veteran's January 1979 hospitalization for paranoid type schizophrenia found heart and pulmonary vascularity to be normal, with the lungs being reported as well expanded and clear A June 1986 VA chest X-ray noted arteriosclerotic changes and chronic obstructive pulmonary disease, with mild cardiac enlargement. In October 1989, the veteran underwent treatment for epigastric discomfort. Chronic obstructive pulmonary disease was noted at that time. The veteran was then hospitalized in January 1990, at which time diagnoses of acute gallstone pancreatitis; a history of hiatal hernia, with previous esophagitis with esophageal stricture; and a smoking history were rendered. As reported by the appellant in a May 1993 written statement, the first diagnosis of cancer was in October 1991. At that time, the veteran was hospitalized with an admitting diagnosis of pneumonia with rule out PE and rule out carcinoma. The veteran reported having had a history of chronic cough since the spring. A cough with a small amount of expectoration and fever with chills were also noted. Generalized weakness, fatigue, and anorexia over the last three or four months were also reported. Past medical history was remarkable for a hiatal hernia, esophagitis, peptic ulcer disease, pancreatitis, cholecystectomy, shell shock, and schizophrenia. Social history showed that the veteran had a 120 pack/year smoking history. While hospitalized, the veteran underwent a computed tomography (CT) of the head and chest to evaluate his lung mass and cerebral metastasis. The chest X-ray showed a persistent right middle lobe infiltrate with decreased right pleural effusion, and the CT of the thorax with contrast revealed a middle lobe infiltrate, atelectasis, and possible tumor near the origin. A right-sided pleural effusion without any extension of the tumor below the diaphragm was also noted. The CT of the head revealed an enhancing mass with surrounding edema in the left posteroparietal and occipital area consistent with metastatic disease. The veteran then underwent a craniotomy followed by tumor resection. A needle aspiration biopsy from the lung mass did not show any malignancy. The cytology for the bronchial washings showed evidence of squamous cell carcinoma. A biopsy from the intracranial tumor confirmed squamous cell carcinoma. Intracranial and intrathoracic radiation was scheduled. The veteran was then admitted to the Joplin House Health Care on December 9, 1991, with a primary admitting diagnosis of lung cancer and a secondary diagnosis of brain metastasis. As demonstrated above, the evidence does not show that the veteran developed lung cancer in service. It demonstrates that an objective finding of lung problems did not occur until 1974, when the veteran was noted to have chronic obstructive pulmonary syndrome. The first objective finding of lung cancer, as reported by the appellant and as evidenced by the record, did not occur until 1991. There is no evidence of record which relates the lung cancer to service or to any incident therein. Consequently, there is no basis for finding that the lung cancer was incurred or aggravated in service or that it may be presumed to have been incurred in service. Likewise, service medical records revealed no findings of, or treatment for, brain cancer. There were also no findings of, or treatment for, brain cancer reported in March 1945 VA treatment records or at the time of the veteran's December 1948 VA examination. As previously noted, physical examinations performed at the time of the veteran's December 1963, January 1972, and January 1979 VA hospitaliza- tions were found to be within normal limits. At the time of the veteran's January 1990 hospitalization, brain cancer was not reported. The first diagnosis of brain cancer did not occur until October 1991, when it was noted that it had metastasized from the lungs. Consequently, brain cancer cannot be found to have been incurred in or aggravated by service, nor may it be presumed to have been incurred in service. The appellant has proffered a theory of secondary service connection which hypo- thesizes that the veteran's service-connected schizophrenia caused him to smoke, which in turn caused his lung and brain cancers. There is no medical evidence of record which supports this theory. As a layperson, the appellant is not competent to render an opinion on the etiological relationship, if any, between the service- connected schizophrenia and the smoking which caused lung and brain cancers and, ultimately, the veteran's death. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Likewise, her theory that medications prescribed for schizophrenia caused the veteran's cancer has no evidentiary support in the record. Under Espiritu, she is not competent to render a medical opinion on this matter. As there is no competent evidence to support these aspects of the appellant's claim, they are not well grounded. 38 U.S.C.A. § 5107 (West 1991). The evidence also fails to show that the veteran's service- connected paranoid schizophrenic reaction contributed to his cause of death. While the veteran was rated 100 disabled, there is no evidence that the paranoid type schizophrenic reaction affected a vital organ. As, such, debilitation may not be assumed. Nor is there any medical evidence of record that the veteran's schizophrenia contributed to cause his death. While the veteran was given various prescription medications for treatment of his service-connected paranoid schizophrenic reaction, no side effects, other than decreased sexual activity from Mellaril, were reported. No resulting debility was noted. It is not shown by any medical evidence that the veteran's schizophrenia in any way contributed to cause his death. Thus, dependency and indemnity compensation on the basis that a service-connected disability contributed to cause death is also not warranted. Since the preponderance of the evidence shows that lung cancer with brain metastasis was not manifest until many years after service and was not related to his service-connected disabilities, and since the service-connected disabilities did not contribute in any way to cause the veteran's death, service connection for the cause of the veteran's death is not warranted. ORDER Service connection for the cause of the veteran's death is denied. GEORGE R. SENYK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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.