BVA9508186 DOCKET NO. 93-06 975 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington 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 Robert E. P. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from February 1941 to September 1945. He died in March 1991. The appellant is the widow of the veteran. This matter came before Board of Veterans' Appeals (Board) on appeal from an April 1991 rating decision by the Seattle, Washington, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that service connection should be established for the cause of the veteran's death. She asserts that his service-connected chronic obstructive pulmonary disease caused or contributed to his death. She points out that a private physician has stated that the veteran's death from metastatic cancer of the lung was probably aggravated by his chronic obstructive pulmonary disease. 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 the appellant's appeal has been obtained by the RO. 2. The veteran died of metastatic lung cancer. 3. The veteran's fatal metastatic lung cancer was not present until many years after service and was not causally or etiologically related to any other incident of service. 4. The veteran's service-connected disabilities, chronic bronchitis and malaria, did not contribute to cause or otherwise hasten his death. CONCLUSION OF LAW Metastatic lung cancer was not incurred or aggravated during service and may not be presumed to have been so incurred; a service-connected disease or disability did not cause or contribute substantially or materially to the cause of the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, she has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran served on active duty from February 1941 to September 1945. The veteran's service medical records reveal that he served in the Southwest Pacific for 29 months. He had bronchitis for over 18 months and was hospitalized several times for treatment of bronchitis. The veteran's discharge physical examination report of September 1945 notes that the veteran was treated for asthma in May 1944. The report also noted the veteran's lungs to be normal and that a chest x-ray revealed no significant abnormalities. The service medical records make no reference to lung cancer. The veteran was afforded a Veterans Administration (now Department of Veterans Affairs) (VA) examination in April 1946. Examination of the lungs revealed ronchi in both bases. The diagnoses included chronic bronchitis. The veteran was granted service connection and a 10 percent disability evaluation for chronic bronchitis effective in September 1945. The veteran subsequently was afforded VA examinations in September 1947, September 1948, February 1949, and February 1954. Each time the diagnoses included chronic bronchitis. A private examiner diagnosed moderate chronic bronchitis and questionable bronchiectasis of the left lower lobe in January 1949. The veteran was treated for malaria at a VA hospital in May 1952; the final diagnoses included probable mild chronic bronchitis and history of chronic bronchiectasis. On VA examination in February 1960, the diagnosis was asthmatic bronchitis with slight to moderate symptoms. The veteran died in March 1991. The death certificate reveals that the veteran died of cardiopulmonary arrest due to non small cell lung carcinoma and that no autopsy was performed. At the time of his death he had a 10 percent rating for chronic bronchitis, in effect from April 1960, and a noncompensable rating for malaria. Private medical records from the Valley Medical Center dated from December 1990 to March 1991 reveal that the veteran was discovered to have lung cancer late in 1990. The cancer was metastatic and spread to his brain and right foot. A radiological report of February 10, 1991 notes a mass in the right hilar region. Also noted was underlying chronic obstructive pulmonary disease. Physical examination of the veteran on February 10, 1991 indicated new pneumonia and dehydration in the face of progressive metastatic cancer. His overall course was described as a progressive decline with decreased appetite, weight loss, diminished activity and confusion. On February 12, 1991, the veteran was noted to have emphysematous changes in the lungs as well as infiltrates in both lungs. He was treated conservatively with pain medication, fluids and antibiotics. The veteran's terminal hospital report provided final diagnoses which included metastatic lung cancer, chronic obstructive pulmonary disease and pneumonia. The appellant testified before a hearing officer in September 1992. She stated that the veteran had a very high fever, chills, and breathing problems about three or four times a year. She also testified that there were no medical records for many years prior to the development of cancer because the veteran would refuse to go to the doctor after his 1952 hospitalization. In December 1992, the veteran's records were examined by a VA physician who was requested to give an opinion as to whether the veteran's bronchitis played any significant part in the veteran's demise. The VA physician noted that there was evidence that the veteran had chronic obstructive bronchial disease, perhaps pulmonary emphysema, but the records indicated that he had not been seen by physicians over a 20 year period prior to his death and the veteran was apparently not on pulmonary medication during that time. The VA physician also noted that the records of treatment during the period of lung cancer showed no specific treatment for chronic pulmonary disease. It was the VA physician's opinion that there was no good objective evidence that obstructive bronchial disease played any major role in the veteran's demise or significantly shortened the veteran's life span. The claims file contains a February 1993 letter from a private physician, Jack R. Morrison, M.D. Dr. Morrison stated that the veteran apparently died of metastatic cancer of the lung. He further noted that the veteran's fatal condition was probably aggravated by the chronic obstructive pulmonary disease resulting from the veteran's chronic bronchitis. In January 1995, the veteran's claims file was sent to an independent medical expert, Joseph Rosman, M.D., Chief of Pulmonary Medicine at Mount Sinai Hospital in Chicago, Illinois, who was requested to provide an opinion as to the likelihood that the veteran's service-connected asthmatic bronchitis played a significant or material role in the veteran's death. The expert noted that the veteran was diagnosed as having bronchitis while in service and that the condition continued after service. Dr. Rosman stated that the matter was a straight forward issue. He did not think that chronic obstructive pulmonary disease (COPD) shortened the veteran's life. There were no tell-tale signs of an early death from COPD such as the development of cor pulmonale. Nor did the medical records mention hypoxia, polycythemia, right sided EKG changes, or leg edema, other symptoms of COPD. The clinical picture was one of a rapidly progressively spreading lung cancer that the independent medical expert felt was the sole cause of the veteran's death. A review of the record discloses that the veteran died as a result of metastatic lung cancer which was first manifested over four decades after his discharge from service. With regard to whether the veteran's service-connected disabilities hastened or otherwise contributed to cause his death, although Dr. Morrison has stated that the veteran's terminal condition was aggravated by the veteran's chronic bronchitis, he did not provide any basis for that opinion. Nor does the evidence indicate that Dr. Morrison ever examined the veteran or ever examined the veteran's history and medical records. Further, the Board has carefully reviewed the medical records covering the several months preceding the veteran's death. These records do not reflect that the service-connected disabilities were a factor in the veteran's death. After a thorough examination of the veteran's medical records, both a VA physician and an independent medical expert have concluded that there was no relationship between the veteran's service-connected bronchitis and his death due to cancer. The Board finds that these opinions, based on a review of all pertinent medical records, are more probative than Dr. Morrison's unsupported conclusion. Accordingly, as it is not demonstrated that the terminal metastatic lung cancer had its onset in service or that a service-connected disability contributed significantly or materially to the cause of the veteran's death, the Board holds that entitlement to service connection for the cause of the veteran's death is not warranted. The Board has carefully reviewed the entire evidence of record and finds that the evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. ORDER Entitlement to service connection for the cause of the veteran's death is denied. WAYNE M. BRAEUER 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.