Citation Nr: 0813253	
Decision Date: 04/22/08    Archive Date: 05/01/08

DOCKET NO.  03-35 526	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, 
Kentucky


THE ISSUE

Entitlement to service connection for the cause of the 
veteran's death, claimed as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	Non Commissioned Officers 
Association


WITNESS AT HEARINGS ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Christine C. Kung, Associate Counsel


INTRODUCTION

The veteran served on active duty from June 1962 to March 
1974, including service in Vietnam.  He died in May 2002.  
The appellant is the veteran's surviving spouse.

This matter comes on appeal before the Board of Veterans' 
Appeals (Board) from a February 2003 rating decision of the 
Department of Veterans Affairs (VA) Regional Office in 
Louisville, Kentucky (RO) which denied service connection for 
the cause of the veteran's death.  

The Board remanded the case in November 2007 for a Travel 
Board hearing.  The appellant testified at a January 2008 
Travel Board hearing; the hearing transcript has been 
associated with the claims file.  The case is once again 
before the Board for review.


FINDINGS OF FACT

1. The veteran died in May 2002.  The certificate of death 
lists the immediate cause of death as asystole, cardiac 
arrest, due to metastatic disease, due to renal cell 
carcinoma.  

2. The medical evidence of record demonstrates that asystole, 
cardiac arrest due to renal cell carcinoma with metastatic 
disease resulted in the veteran's death; the veteran's cause 
of death is not shown to be etiologically related to active 
service.

CONCLUSION OF LAW

The criteria for service connection for the cause of the 
veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 
5103, 5103A, 5106, 5107 (West 2002 & Supp. 2006); 38 C.F.R. 
§§ 3.102, 3.159, 3.303, 3.310, 3.312 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

A. Veterans Claims Assistance Act of 2000 (VCAA)

The Board finds that VA has met all statutory and regulatory 
VCAA notice and duty to assist requirements. See 38 U.S.C.A. 
§§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2007); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  January 
2003 and June 2007 letters informed the appellant of the 
evidence necessary to substantiate her claim, evidence VA 
would reasonably seek to obtain, and information and evidence 
for which the appellant was responsible.  VA also asked the 
appellant to provide any evidence that pertains to her claim.

The VCAA notice requirements apply to all five elements of a 
service connection claim, including the degree of disability 
and the effective date of the disability. Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, 
VA did not provide the appellant with VCAA notice of the type 
of specific evidence necessary to establish a disability 
rating or effective date prior to the initial rating 
decision.  The Board notes in that regard, that disability 
ratings are not applicable to cause of death claims and no 
effective date is to be assigned in light of the Board's 
decision this date.  Thus, the Board finds that any notice 
failure is harmless error. See Mayfield v. Nicholson, 19 Vet. 
App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. 
Cir. Apr. 5, 2006).

The veteran's service medical records, certificate of death, 
VA treatment records, VA, a Board hearing transcript, and 
various statements in support of the appellant's claim have 
been associated with the claims file.  VA has provided the 
appellant with every opportunity to submit evidence and 
arguments in support of her claim, and to respond to VA 
notices.  

The Board notes that during a January 2008 Board hearing, the 
appellant's representative requested a medical opinion to 
determine if the veteran's cause of death was due to diabetes 
mellitus.  In determining whether the duty to assist requires 
that a VA medical examination be provided or medical opinion 
obtained with respect to a veteran's claim for benefits, 
there are four factors for consideration.  These four factors 
are:  (1) whether there is competent evidence of a current 
disability or persistent or recurrent symptoms of a 
disability; (2) whether there is evidence establishing that 
an event, injury, or disease occurred in service, or evidence 
establishing certain diseases manifesting during an 
applicable presumption period; (3) whether there is an 
indication that the disability or symptoms may be associated 
with the veteran's service or with another service-connected 
disability; and (4) whether there otherwise is sufficient 
competent medical evidence of record to make a decision on 
the claim.  38 U.S.C.A. § 5103A(d) and 38 C.F.R. 
§ 3.159(c)(4).  As the Board will discuss below, the veteran 
was not shown by medical evidence to have diabetes mellitus, 
nor was diabetes mellitus elevated glucose levels indicated 
as a cause of death.  The appellant and her representative 
have not made the Board aware of any additional evidence that 
needs to be obtained prior to appellate review.  The record 
is complete and the case is ready for review.

B. Law and Analysis

Determinations as to whether service connection may be 
granted for a disability that caused or contributed to a 
veteran's death are based on the same statutory and 
regulatory provisions that generally govern determinations of 
service connection.  See 38 U.S.C.A. §§ 1110, 1131 (West 
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).  Service 
connection may be granted for disease or injury incurred in 
or aggravated by active service.  38 U.S.C.A. §§ 1110, 
1131(West 2002); 38 C.F.R. § 3.303 (2007).  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) (2007).  In addition, certain 
chronic diseases, such as diabetes mellitus or malignant 
tumors, may be presumed to have been incurred or aggravated 
during service if such diseases become disabling to a 
compensable degree within one year of separation from active 
duty.  38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2006); 38 
C.F.R. §§ 3.307, 3.309 (2007).

The death of a veteran will be considered to have been due to 
a service-connected disability where the evidence establishes 
that a disability was either the principal or the 
contributory cause of death.  38 C.F.R. § 3.312(a) (2007).  A 
principal cause of death is one which, singly or jointly with 
some other condition, was the immediate or underlying cause 
of death or was etiologically related thereto.  38 C.F.R. 
§ 3.312(b) (2007).  A contributory cause of death is one 
which contributed substantially or materially to cause death, 
or aided or lent assistance to the production of death.  See 
38 C.F.R. § 3.312(c) (2007).

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 itself of a progressive or 
debilitating nature.  38 C.F.R. § 3.312(c)(4) (2007).

The appellant claims that the veteran's cause of death is 
related to Agent Orange exposure in Vietnam.  A veteran, who 
had active service in the Republic of Vietnam during the 
period beginning on January 9, 1962 and ending on May 7, 
1975, will be presumed to have been exposed to an herbicide 
agent during such service unless there is affirmative 
evidence to establish that the veteran was not exposed to any 
such agent during that service.  See 38 U.S.C.A. § 1116(f) 
(West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2007).

VA regulations provide that the following diseases shall be 
service connected if the veteran was exposed to an herbicide 
agent during active service, even though there is no record 
of such disease during service, and provided further that the 
requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne 
or other acneform disease consistent with chloracne, type II 
diabetes mellitus, Hodgkin's disease, chronic lymphocytic 
leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and 
subacute peripheral neuropathy, porphyria cutanea tarda, 
prostate cancer, certain respiratory cancers, and soft tissue 
sarcoma.  38 C.F.R. § 3.309(e) (2007).

Claims based on Agent Orange exposure are unique in that 
entitlement is based on an analysis of scientific evidence, 
ordered by statute.  38 U.S.C.A. § 1116(b).  The Agent Orange 
Act of 1991 (in part) directed the Secretary of Veteran 
Affairs to enter into an agreement with the National Academy 
of Sciences (NAS) to review and summarize the scientific 
evidence concerning the association between exposure to 
herbicides used in support of military operations in the 
Republic of Vietnam during the Vietnam Era and each disease 
suspected to be associated with such exposure.

Whenever the Secretary determines that a positive association 
exists between exposure of humans to an herbicide agent and a 
disease, the Secretary will publish regulations establishing 
presumptive service connection for that disease.  If the 
Secretary determines that a presumption of service connection 
is not warranted, he must publish a notice of that 
determination, including an explanation of the scientific 
basis for that determination.  The Secretary's determination 
must be based on consideration of NAS reports and all other 
sound medical and scientific information and analysis 
available to the Secretary.  See 38 U.S.C.A. § 1116(b)-(c).  
In response to five NAS reports (and a special interim 
report), the Secretary published notices of these 
determinations in January 1994, August 1996, November 1999, 
January 2001, June 2002, and May 2003.

In March 2005, NAS published its sixth full report, entitled 
"Veterans and Agent Orange: Update 2004" (Update 2004).  
Consistent with prior reports of NAS, Update 2004 again found 
that there was "sufficient evidence of an association" 
between herbicide exposure and five categories of diseases in 
veterans and "limited/suggestive evidence'' of an association 
between herbicide exposure and six other categories of 
diseases in veterans.  

Update 2004 also categorized certain health outcomes as 
having "inadequate/insufficient" evidence to determine 
whether they may be associated with herbicide exposure.  The 
health outcomes in this category include: hepatobiliary 
(liver) cancers; bone and joint cancer; skin cancers; urinary 
bladder cancer; renal cancer; respiratory disorders; 
gastrointestinal, metabolic, and digestive disorders (changes 
in liver enzymes, lipid abnormalities, ulcers).  Update 2004 
also concluded that two health outcomes fell into the 
"limited or suggestive evidence of no association" category: 
gastrointestinal tumors (esophagus, stomach, pancreas, colon, 
and rectum) and brain tumors.

In June 2007, the Secretary of Veterans Affairs published 
determinations regarding these diseases, based on all 
available evidence in Update 2004 and prior NAS reports.  The 
Secretary determined that a positive association between 
exposure to herbicides and enumerated health outcomes, to 
include renal cancer, did not exist.  The Secretary also 
reiterated that there is no positive association between 
exposure to herbicides and any other condition for which he 
has not specifically determined that a presumption of service 
connection is warranted.  See 72 Fed. Reg. 32,395 (June 12, 
2007).

However, the United States Court of Appeals for the Federal 
Circuit has determined that an appellant is not precluded 
from establishing service connection with proof of actual 
direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. 
Cir. 1994).

The facts of this case show that the veteran died in May 
2002.  The veteran's certificate of death lists the immediate 
cause of death as asystole, cardiac arrest due to metastatic 
disease, due to renal cell carcinoma.  No other significant 
conditions were listed as contributing to death.  

At the time of the veteran's death, service connection was 
established for right ear hearing loss with a 0 percent (non-
compensable) evaluation.

The veteran's Form DD 214 shows that he served in the 
Republic of Vietnam during the Vietnam Era, and there is no 
evidence to the contrary.  Thus, he is presumed to have been 
exposed during such service to Agent Orange.  See 38 C.F.R. § 
3.307(a)(6)(iii) (2007).  However, as the veteran's cause of 
death is not included in the above-indicated diseases 
associated with exposure to an herbicide agent, presumptive 
service connection is not warranted.  

The appellant contends that the veteran had diabetes 
mellitus, related to Agent Orange exposure in service, and 
she contends that diabetes mellitus contributed to the 
veteran's cause of death.  The medical evidence of record 
does not show that the veteran had a diagnosis of diabetes 
mellitus.  VA medical records show that the veteran was 
taking insulin in April 2002 and May 2002 due to elevated 
glucose levels in the blood.  The veteran was not taking 
insulin prior to April 2002 and the medical evidence of 
record does not reflect a diagnosis diabetes mellitus 
rendered at any time.  Further, elevated glucose levels are 
not shown by the medical evidence of record to be related to 
the veteran's cause of death.  The medical evidence shows 
that renal cell carcinoma with metastatic disease caused the 
veteran's asystole, cardiac arrest.  Even though presumptive 
service connection is not warranted, the appellant is not 
precluded from establishing service connection for the 
veteran's cause of death with proof of direct causation.  See 
Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994).

The veteran's cause of death is not shown to have been 
incurred or aggravated in service.  Service medical records 
do not reflect any complaints, diagnoses, or treatment that 
can be related to renal cell carcinoma or metastatic disease.  
(See Clinical Treatment Reports and Routine Medical 
Examinations completed in December 1961, December 1968, 
December 1970, March 1974, and October 1973.)

The earliest indication of metastatic disease or renal cell 
carcinoma shown by VA treatment records was in November 2001.  
At that time, the veteran was assessed with a 10 centimeter 
mass with probable central necrosis in the right kidney lower 
pole.  The physician stated that renal cell carcinoma was the 
most likely diagnosis.  In February 2002, the veteran was 
shown to have metastatic disease to the spine, liver, and 
brain.  VA treatment reports leading up to the veteran's time 
of death reflect treatment for renal cell carcinoma with 
metastasis to the spine and brain.  

The veteran was hospitalized at VA at the time of his death.  
May 2002 terminal hospital records show that the veteran's 
death was caused by asystole, cardiac arrest due to or as a 
consequence of metastatic disease, due to or a consequence of 
renal cell cancer.  Other significant conditions contributing 
to death were noted to include renal cell cancer with 
metastasis to various sites including spinal cord compression 
due to bone metastasis and brain metastasis.  It was noted 
that after chemotherapy was discontinued the prior month, the 
veteran was re-admitted almost immediately with worsening 
hypoxemia, dyspnea, electrolyte abnormalities, and 
progressive weakness.  Evaluation revealed worsening 
bilateral infiltrates in the lung.  Treatment records note 
that the veteran's next of kin had denied permission to 
perform an autopsy due to the veteran's pre-determined 
diagnosis of renal cell cancer with metastasis.  

The medical evidence of record clearly shows that the cause 
of the veteran's death was cardiac arrest due to metastatic 
disease, due to renal cell cancer.  The cause of the 
veteran's death is not shown to have been incurred in 
service, and is not shown to be related to Agent Orange 
exposure in service.  The veteran did not have a diagnosis of 
diabetes mellitus at the time of his death and there is no 
competent evidence of record relating such a diagnosis to the 
cause of the veteran's death.  

The Board has considered the appellant's statements in 
support of her claim.  The Board acknowledges the appellant's 
belief that the veteran's cause of death was related to 
service; however, where the determinative issue is one of 
medical causation or diagnosis, as in this case, only those 
with specialized medical knowledge, training, or experience 
are competent to provide evidence on the issue.  See Jones v. 
Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 
Vet. App. 492, 494-95 (1991). See also Heuer v. Brown, 7 Vet. 
App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet. App. 
91, 93 (1993)).

The cause of the veteran's death is not shown by competent 
medical evidence to be related to service.  The most 
probative evidence of record does not relate the veteran's 
cause of death to service, or to Agent Orange exposure in 
service.  Thus, the Board finds that the cause of the 
veteran's death was not incurred or aggravated in service.

C. Conclusion

The cause of the veteran's death is not shown by competent 
medical evidence to be related to service or to in-service 
exposure to Agent Orange.  Thus, the Board finds that service 
connection for the cause of the veteran's death is not 
warranted.  The appeal is accordingly denied.  In making this 
determination, the Board has considered the provisions of 38 
U.S.C.A. § 5107(b) regarding benefit of the doubt, but there 
is not such a state of equipoise of positive and negative 
evidence to otherwise grant the appellant's claim.

ORDER

Service connection for the cause of the veteran's death is 
denied.



____________________________________________
S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs