Citation Nr: 0006189 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 97-33 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD K. Johnson, Associate Counsel INTRODUCTION The veteran had active service from December 1942 to December 1944. He died in April 1997. The appellant is the veteran's widow. This matter came to the Board of Veterans' Appeals (Board) from an August 1997 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied the appellant's claim of service connection for the cause of the veteran's death. In September 1997, a notice of disagreement was submitted and a statement of the case was issued. The appellant submitted her substantive appeal in November 1997. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The veteran died on April [redacted], 1997. The death certificate lists the immediate cause of death as esophageal cancer, and coronary artery disease as the other significant condition contributing to death but not related to the underlying cause listed. The death was natural, and an autopsy was not performed. 3. During the veteran's lifetime, service connection was in effect for residuals of internal derangement of the left knee and phlebitis of the left leg, and each was rated as 10 percent disabling at the time of his death. 4. The evidence is in approximate balance as to whether the service-connected phlebitis contributed to the cause of the veteran's death. CONCLUSION OF LAW The veteran's service-connected left leg phlebitis was a contributory cause of his death. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background During the veteran's lifetime, service connection was in effect for residuals of internal derangement of the left knee and phlebitis of the left leg. The claims folder includes VA examination reports from the 1940s, 1950s, 1960, and 1985 regarding the left knee and left leg phlebitis disabilities. At the time of his death, each disability was rated as 10 percent disabling. The claims folder also includes records dated in the 1970s and 1990s regarding the veteran's cardiovascular problems, particularly angina. In a July 1995 letter, Dr. Luis Romero reported that the veteran had severe degenerative joint disease of the thoracic spine and left knee. He also reported that the veteran had severe varicose veins with venous incompetence on the left lower extremity which placed an increased strain on his hypertension and coronary artery disease. There is also an October 1995 letter of record from Dr. Kamal F. Kassis regarding a referral from Dr. Romero for a vascular evaluation. In this case, the medical records show that the veteran was admitted to the hospital in April 1997. His history of esophageal carcinoma and coronary artery disease was noted, and he was admitted because of nausea, vomiting and the inability to keep anything down. During his hospitalization, he was placed on fluids and antibiotics with Neupogen and he developed ileus in spite of the Neupogen and Reglan. A consult was done with I.D. and cardiology as the veteran had episodes of tachycardia treated with medication. He refused to be transferred to Telemetry. He expired nine days after his admission to the hospital. The final diagnoses were neutropenia and fever secondary to esophageal carcinoma and obstructive ileus, and supraventricular tachycardia. The veteran died on April [redacted], 1997. The death certificate lists the immediate cause of death as esophageal cancer, and coronary artery disease as the other significant condition contributing to death but not related to the underlying cause listed. The death was natural, and an autopsy was not performed. Dr. Luis Romero submitted several letters regarding the cause of the veteran's death. In an April 1997 letter, Dr. Romero reported that the veteran was admitted to the hospital with a diagnosis of esophageal carcinoma and pancytopenia secondary to chemotherapy. In the hospital, this was complicated with several problems including septicemia and respiratory insufficiency believed to be possibly from pulmonary emboli. Dr. Romero pointed out that the veteran had a long history of post phlebitic syndrome on the lower extremities, especially on the left side and a previous history of deep venous thrombosis. Dr. Romero opined that part of the reason for the veteran's death was the deep venous thrombosis on the left lower extremity with pulmonary emboli. Dr. Romero clarified his opinion in an October 1997 letter. He mentioned the injury to the veteran's left knee during service, and that the veteran developed chronic venous insufficiency and thrombophlebitis. He died from several complicating problems such as septicemia and respiratory insufficiency secondary to pulmonary emboli. The pulmonary emboli were believed to be secondary to the thrombophlebitis of the left lower extremity. In a November 1998 report, a VA physician noted that the available reports had been reviewed, including the statements from Dr. Romero. The VA physician concluded that the veteran died of esophageal cancer and its complications, including neutropenia and thrombocytopenia. The physician determined that there is "no clear evidence linking phlebitis of the l[eft] leg causing or contributing to the veteran's death," and that the veteran died of the complications of esophageal cancer. II. Legal Analysis The Board finds that the appellant's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Also, the Board is satisfied that all relevant facts have been properly developed and that the VA has fulfilled its duty to assist the claimant as mandated by 38 U.S.C.A. § 5107 (West 1991) and 38 C.F.R. § 3.103(a) (1999). 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 the cause of 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 a service-connected 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. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). Claims for service connection for cause of death are governed by 38 C.F.R. § 3.312 (1999): (a) General. 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 issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. (b) Principal cause of death. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. (c) Contributory cause of death. (1) 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. 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. (2) 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 injuries 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. (3) 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 extent that would render the person materially less capable of resisting the effects of other disease 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. (4) 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 for consideration 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. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. The record shows that during the veteran's lifetime, service connection was in effect for residuals of internal derangement of the left knee and phlebitis of the left leg. At the time of his death, each disability was rated as 10 percent disabling. However, the death certificate does not list either one of these disabilities as the cause of the veteran's death. Although not noted as the primary cause, it is argued that the veteran's phlebitis of the left leg contributed to the cause of his death. Differing medical opinions, described above, have been submitted with regard to this question. It is clear from the 1998 report that the VA physician reviewed the medical records associated with the claims folder and offered a medical opinion based on the facts before him. This included a review of Dr. Romero's opinions. However, the VA physician's opinion is that there is "no clear evidence" that the service-connected phlebitis caused or contributed to death. This does not directly rebut Dr. Romero's opinion that the service-connected phlebitis caused pulmonary emboli that contributed to the cause of death. The difference appears to be one of degree of certainty. Dr. Romero believes contribution to be the case, while the VA doctor finds "no clear evidence" of causation. Both opinions may in fact be compatible. In any event, the Board finds that the evidence is at least in equipoise on the question of contributory cause of death. Thus the Board finds for the appellant. ORDER Entitlement to service connection for the cause of the veteran's death has been established, and the appeal is granted. J. E. Day Member, Board of Veterans' Appeals