Citation Nr: 18132320
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 14-20 972A
DATE:	September 6, 2018
ORDER
Entitlement to service connection for the Veteran's cause of death is denied.
FINDINGS OF FACT
1. At the time of the Veteran’s death, service connection was not established for any disorder.
2. The preponderance of the evidence shows that the cardiopulmonary arrest with cancer of the urinary bladder that caused the Veteran’s death was present in service or until many years thereafter and they are not related to service or to an incident of service origin.
CONCLUSION OF LAW
The criteria for establishing entitlement to service connection for the Veteran's cause of death have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5103, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty with the Philippine Commonwealth Army of the U.S. Army Forces in the Far East (USAFFE) from December 1941 to June 1942 and from March 1945 to February 1946.  The Veteran was a prisoner of war (POW) from April 10, 1942 to June 27, 1942.  
The Veteran passed away in February 1994.  The appellant is the Veteran’s surviving spouse.
This matter was previously remanded on multiple occasions, to include in July 2017. 
Service Connection for Cause of Death
To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability which was incurred in or aggravated by active duty service either caused or contributed substantially or materially to death. 
In this regard, it can be either the immediate or underlying cause, or else be etiologically related.  38 U.S.C. § 1310; 38 C.F.R. § 3.312.  In order to constitute the principal cause of death, the service-connected disability must be medically determined to have been one of the immediate or underlying causes of death, or be etiologically related to the cause of death.  38 C.F.R. § 3.312 (b).  A contributory cause of death is one not inherently related to the principal cause, but that it contributed substantially or materially; combined to cause death; or assisted in the production of death.  Significantly, 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 C.F.R. § 3.312(c)(1).
Service-connected diseases or injuries involving active processes affecting vital organs are given careful consideration as a contributory cause of death, despite being unrelated to primary cause, due to debilitating effects and general impairment of health that such processes may cause.  38 C.F.R. § 3.312(c)(3).  In all cases, VA must consider whether the evidence indicates that a service-connected condition was of such severity as to have a material influence in accelerating death. For example, 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.  38 C.F.R. § 3.312(c)(4).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  
Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
The appellant asserts entitlement to service connection for the Veteran’s cause of death.  He passed away in February 1994.  At the time of the Veteran’s death, he had not been granted service connection for any condition or disability related to service.  The death certificate listed the Veteran’s underlying cause of death as cardiopulmonary arrest with cancer of the urinary bladder.  No other conditions were listed as a significant or contributing cause in the Veteran’s passing. 
After a review of the evidence of record, the Board finds that service connection for the cause of the Veteran’s death is not warranted.  
As an initial matter, the Veteran was not service connected for any disabilities at the time of his death.  As such, the only aspects of the appellant’s claim for consideration are as follows-whether the cause of the Veteran’s death (i.e., the cardiopulmonary arrest with cancer of the urinary bladder indicated in his death certificate) should have been service-connected based on the evidence of record.
In this regard, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including tropical diseases and diseases caused by being a POW, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a), (b), and (c).  
In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.”  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
As to service connection for cardiopulmonary arrest and cancer of the urinary bladder based on the presumptions found at 38 C.F.R. § 3.309(a), (b), and (c), the Board finds that they do not apply to the current appeal because the Veteran, despite being a POW in the Philippines, was not diagnosed with one of the enumerated diseases.  38 U.S.C. §§ 1101, 1110, 1112, 1113.
As to establishing service connection for cardiopulmonary arrest and cancer of the urinary bladder based on proof of direct causation, the service treatment records are negative for complaints, symptoms and/or diagnoses of either disease.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions); also see 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Hensley, supra.
Similarly, the record does not show that the Veteran had a continued problem with cardiopulmonary arrest and cancer of the urinary bladder in and since service.  In fact, as reported above, service treatment records are negative for complaints, diagnoses, or treatment for these disorders.  Likewise, the post-service record is negative for a history, complaints, or a diagnosis until decades after service.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b).  
In this regard, the Board notes that an August 1955 hospital treatment report referenced “minimal fibrotic infiltration, right; left, clear.”  No impressions from X-ray films or laboratory findings were referenced.  A private physician’s statement, dated March 1989, noted that the Veteran had a history of fevers with productive cough and chest pain.  Reportedly, the condition had persisted for 24 years.  No specific diagnosis was rendered or indicated.  In a May 1990 medical certification, the Veteran complained of difficulty breathing, fatigability, generalized weakness and pulmonary tuberculosis (PTB).  Further, he contended that his symptoms began in 1945, and he sought treatment in 1957, 1959, and from 1961 and through the present.  He current diagnoses were listed as PTB and heart disease.  In a treatment record dated, December 1992, the Veteran’s current conditions were listed as transitional cell carcinoma of the urinary bladder, benign prostate hyperplasia, chronic renal insufficiency, and chronic bronchitis.
Furthermore, the Board finds that the most probative evidence of record are the opinions provided by the March 2017 VA examiner, as supplemented by the July 2018 VA opinion, that the Veteran’s cardiopulmonary arrest and cancer of the urinary bladder are not due to his military service including his time as a POW because these opinions were provided after a review of the record on appeal, are supported by evidence found in the claims file and/or controlling medical literature, and are not contradicted by any other medical evidence of record.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein); Owens, supra; Colvin, supra.  
In addition, the Board finds that the claimant is not competent to provide a nexus opinion because she does not have the required medical expertise to provide an answer to this complex medical question.  See Davidson, supra.  
Accordingly, the Board finds that the preponderance of the evidence is against the appellant’s claim of service connection for the cause of the Veteran’s death because neither of the disease process that caused his death are due to his military service.
In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C. § 5107(b).  However, as the preponderance of the evidence is against the claim, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra.
 
NEIL T. WERNER
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Whitaker, Associate Counsel 

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