Citation Nr: 0007964 Decision Date: 03/24/00 Archive Date: 03/28/00 DOCKET NO. 97-05 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. L. Smith, Counsel INTRODUCTION The veteran had active duty from August 1940 to September 1945 and from February 1946 to April 1969. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a February 1996 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs Regional Office (VARO). The Board previously remanded this case to the VARO for further development in December 1998. The development was accomplished and the case is now again before the Board for appellate review. FINDING OF FACT Competent medical evidence has not been presented establishing a nexus, or link, between the veteran's service, and the veteran's death in September 1995, from cancer of the colon. CONCLUSION OF LAW A well grounded claim for service connection for the cause of the veteran's death has not been presented. 38 U.S.C.A. §§ 1101, 1110, 1131, 1310, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.312 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant contends that the veteran's adenocarcinoma of the prostate developed from or was caused by his service- connected prostatic hypertrophy, and that the adenocarcinoma of the prostate either caused or contributed, substantially and materially, to the veteran's death. In the alternative, the appellant's representative argues that the veteran actually had adenocarcinoma for many years prior to diagnosis, and it was misdiagnosed as prostatic hypertrophy; therefore, service connection is warranted for the veteran's death. The veteran served on active duty from August 1940 to September 1945 and from February 1946 to April 1969. At the time of his death, the veteran was service connected for the following compensable disabilities: 1) residuals of fracture, right radius, 20 percent disabling; 2) prostatic hypertrophy with recurrent symptoms, 10 percent disabling. He was also service-connected with an assigned noncompensable rating, for a residual scar of the right thigh, hemorrhoids, and bilateral hearing loss. At his death, he had a combined service-connected disability rating was 30 percent. Review of the medical evidence of record reveals that the veteran was diagnosed and treated for prostatic hypertrophy in service in 1963, and for a urinary infection in 1965. On VA examination in June 1970, the prostate was found to be symmetrically enlarged, about three times normal size; with smooth surface; boggy consistency, and non-tender on palpation. The diagnosis was benign prostatic hypertrophy, asymptomatic at time of examination. Post-service VA medical records show that in 1992, the veteran presented with lower urinary tract symptoms and a diffusely, nodular prostate. In December 1992, following a biopsy, he was diagnosed to have adenocarcinoma of the prostate. He was treated with irradiation and hormonal therapy. A letter from the Cancer Treatment Center, dated April 1993, indicated that the veteran had recently completed radiation therapy. The amount of radiation he had received was considered a curative amount. VA treatment records show that the veteran continued with his hormonal treatment and to be seen for follow-up visits thereafter. VA hospital summary report dated December 1994, indicated that the veteran was admitted with complaints of increasing weakness and joint pain. He had a history of carcinoma of the prostate which was followed in the genitourinary clinic and noted to be "pretty much under stable condition." The prostatic specific antigen was found to be normal. Endoscopy and endoscopic biopsy revealed adenocarcinoma of the cecum. VA hospital summary report dated January 1995, indicated that the veteran underwent a right hemicolectomy which revealed poorly differentiated adenocarcinoma extending through bowel wall into fatty tissue, with lymph nodal involvement. VA medical records further show that a CT of the abdomen showed suspected liver metastasis; and a CT of the chest also showed suspected metastatic disease. In February 1995, he was noted to have a nodule in the left upper chest; chemotherapy was deferred as long as he continued asymptomatic. A VA hospital summary report shows that the veteran was hospitalized from August to September 1995 "basically for terminal care". Adenocarcinoma cells were present in the urine. CEA level was greater than 600. Abdominal x-ray showed ascites and hepatomegaly. There were extensive bilateral pulmonary metastases in addition to the liver metastases. The veteran's case was presented to the Tumor Board and discussed in detail. It was considered that carcinoma of the prostate was the first primary with the colon cancer as second primary. The recommendation was for supportive care. The family was consulted and the veteran was discharged to nursing home care. VA medical records show the veteran was again hospitalized for 3 days in September 1995, for suspected rectal bleeding. There was no evidence of further rectal bleeding and he was again transferred to the nursing home for terminal care. The Certificate of Death indicates that the veteran died on September [redacted], 1995, at the nursing home. He was 75 years of age. The reported cause of death was cancer of the colon. Following the Board's remand, the RO in April 1999, attempted to obtain additional medical records from the nursing home as well as the appellant. No response was received. In accordance with the remand instructions, the RO forwarded the claims file with a request for a medical opinion as to the causal relationship, if any, between the veteran's service- connected prostatic hypertrophy, and his adenocarcinoma of the prostate and adenocarcinoma of the cecum. In July 1999, a written VA medical opinion was received, to wit: It is my professional opinion that subject deceased veteran primarily died of a second primary metastatic adenocarcinoma of colon (specifically cecum); adenocarcinoma of prostate may have been a contributory factor in veteran's demise, but could not be considered as the primary cause of death; it is not believed that the [adenocarcinoma] of cecum is causally related to the [adenocarcinoma] of prostate; [adenocarcinoma] of prostate can develop without any known prior prostatic disorder and this physician cannot categorically state that any pre- existing prostate disorder (such as BPH) resulted in the subsequent development of [adenocarcinoma] of prostate. [Emphasis added] ANALYSIS The appellant seeks service connection for the cause of the veteran's death. Service connection for the cause of the veteran's death may be granted if the evidence of record demonstrates that a disability incurred in service caused the veteran's death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). Additionally, 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 a principal or contributory cause of death. The issue involved must be determined by the exercise of sound judgment, without recourse to speculation, after careful analysis of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312(a) (1999). A findings that the service-connected disability was a contributory cause of death requires objective evidence that it substantially or materially contributed to the cause of death, by either combining to cause death, or aiding or lending assistance to the production of death. It is not sufficient to show that the service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (1999). However, the threshold question to be answered in all cases is whether the appellant's claim is well grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. 38 U.S.C.A § 5107(a) (West 1991). An appellant has, by statute, the duty to submit evidence that a claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the appellant is not met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19 (1993). In this case, competent medical evidence has not been presented establishing a nexus, or link, between the veteran's death in September 1995 from adenocarcinoma of the colon and the veteran's service and/or serviceconnected disabilities. Specifically, it is noted that there is no medical evidence of a link between the veteran's service- connected benign prostatic hypertrophy (BPH) and the later development of either adenocarcinoma of the prostate or adenocarcinoma of the cecum, as alleged by the appellant. Furthermore, there is no medical evidence that the veteran's adenocarcinoma was incurred in service as alleged by the appellant's representative. The appellant or her representative, as a lay person, is not competent to offer opinions on medical causation. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992). Moreover, lay assertions of medical causation or medical diagnosis cannot constitute evidence to render a claim well grounded. Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In view of the above, the Board finds that a well grounded claim for service connection for the cause of the veteran's death has not been presented. Under 38 U.S.C.A. § 5103(a) the VA is obligated to advise a claimant of the evidence necessary to complete her application. Robinette v. Brown, 8 Vet. App. 69 (1995). This obligation was successfully completed by VARO in its statement of the case and its January 1998 and August 1999 supplemental statements of the case. Likewise, the Board's discussion above informs the appellant of the requirements for the completion of her application for the claim for service connection for the cause of the veteran's death. ORDER Service connection for the cause of the veteran's death is denied. C. P. RUSSELL Member, Board of Veterans' Appeals