Citation Nr: 0924236	
Decision Date: 06/26/09    Archive Date: 07/01/09

DOCKET NO.  04-13 922	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


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


ATTORNEY FOR THE BOARD

T. Wishard, Associate Counsel




INTRODUCTION

The Veteran served on active duty from January 1963 to 
January 1966.  The Veteran died in December 1998.  The 
appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals 
(Board) from a June 2003 rating decision of the Department of 
Veterans Affairs (VA), Regional Office (RO) in Philadelphia, 
Pennsylvania.  

This matter was previously before the Board in August 2005 
and May 2007 and was remanded for further development.  It 
has now returned to the Board for further appellate 
consideration. 


FINDINGS OF FACT

1.  The certificate of death reflects that the Veteran died 
on December [redacted], 1998 as a result of sepsis, due to liver 
failure, due to cancer of the pharynx, and pneumonia. 

2.  At the time of the Veteran's death, service-connection 
had not been established for any disability; however, in an 
August 2008 rating decision, service connection was 
posthumously established for diabetes mellitus associated 
with herbicide exposure, with a 20 percent evaluation, for 
accrued benefits purposes, based on a claim pending at the 
time of the Veteran's death. 

3.  Cancer of the tongue, with metastasis to the pharynx, is 
not shown by competent medical evidence to be linked to 
service; and is not shown to have been caused or aggravated 
by the Veteran's exposure to Agent Orange, or any other 
herbicide.

4.  Sepsis, liver failure, and pneumonia are not shown by 
competent medical evidence to be causally related to service, 
to include as secondary to diabetes mellitus.

5.  The competent evidence does not establish that a service-
connected disability was either the principal or a 
contributory cause of the Veteran's death, nor is there 
competent medical evidence establishing that the cause of his 
death was incurred or aggravated in service.  


CONCLUSION OF LAW

The cause of the Veteran's death was not incurred in or 
aggravated by active service, and may not be presumed to have 
been so incurred or aggravated.  38 U.S.C.A. 38 U.S.C.A. §§ 
1101, 1110, 1112, 1113, 1137, 1310 (West 2002 & West Supp. 
2008); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3. 312 
(2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).  

Duty to Notify

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper VCAA notice must inform the claimant of 
any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; and (3) that the claimant is expected to provide.  
VCAA notice should be provided to a claimant before the 
initial unfavorable agency of original jurisdiction (AOJ) 
decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 
(2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 
2006).  

In March 2006, the United States Court of Appeals for 
Veterans Claims (Court) issued its decision in the 
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).  The Court in Dingess/Hartman held that the 
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b) apply to all five elements of a "service 
connection" claim.  As previously defined by the courts, 
those five elements include:  (1) Veteran status; (2) 
existence of a disability; (3) a connection between the 
Veteran's service and the disability; (4) degree of 
disability; and (5) effective date of the disability.  Upon 
receipt of an application for service connection, therefore, 
VA is required to review the information and the evidence 
presented with the claim and to provide the claimant with 
notice of what information and evidence not previously 
provided, if any, will assist in substantiating or is 
necessary to substantiate the elements of the claim as 
reasonably contemplated by the application.  This includes 
notice that a disability rating and an effective date for the 
award of benefits will be assigned if service connection is 
awarded.

In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court 
expanded the VCAA notice requirements for a Dependency and 
Indemnity Compensation (DIC) claim.  In Hupp, the Court held 
that, when adjudicating a claim for DIC, VA must perform a 
different analysis depending upon whether a Veteran was 
service-connected for a disability during his or her 
lifetime.  The Court concluded that, in general, section 
5103(a) notice for a DIC case must include: (1) a statement 
of the conditions, if any, for which a Veteran was service-
connected at the time of his or her death; (2) an explanation 
of the evidence and information required to substantiate a 
DIC claim based on a previously service-connected condition; 
and (3) an explanation of the evidence and information 
required to substantiate a DIC claim based on a condition not 
yet service-connected.  In addition, the Court found that the 
content of the section 5103(a) notice letter will depend upon 
the information provided in the claimant's application.  

In VA correspondence to the appellant in August 2005 and May 
2007, VA informed the appellant of what evidence was required 
to substantiate her claim and of her and VA's respective 
duties for obtaining evidence.  The August 2005 
correspondence to the appellant was deficient in that it did 
not include the criteria for assignment of an effective date, 
in the event of award of the benefit sought, as required by 
the Court in Dingess/Hartman.  This information was provided 
in the May 2007 correspondence.  

In addition, the above referenced VA correspondence did not 
inform the appellant of the disabilities, if any, for which 
the Veteran was service-connected at the time of his death.  
The Board finds that this error has been rendered harmless, 
and the appellant has not been prejudiced by a lack of proper 
notice in accordance with Hupp.  The evidence of record 
includes a letter, dated in November 1996, from the appellant 
to VA, which reflects that the appellant was aware that the 
Veteran had a claim pending for entitlement to service 
connection for diabetes mellitus.  The Veteran died in 
December 1998.  In September 2000 VA correspondence to the 
appellant, VA notified her that her claim for death benefits 
had been denied.  The enclosed August 2000 rating decision 
reflected that the Detroit, Michigan RO denied the Veteran's 
pending claims for entitlement to service connection for 
squamous cell carcinoma, diabetes, and a liver condition.  In 
November 2001, the appellant's representative requested 
reconsideration of the August 2000 rating decision regarding 
diabetes.  By a rating decision dated in August 2008, service 
connection was established for diabetes mellitus for accrued 
benefits purposes.  Thus, the appellant was aware that at the 
time of the Veteran's death, he had a claim for diabetes 
mellitus pending; and that his claim was later granted; 
therefore, the Board finds that the appellant was not 
prejudiced by lack of proper notice in accordance with Hupp.  
See Shinseki v. Sanders/Simmons, No. 07-1209 (U.S. Sup. Ct. 
Apr. 21, 2009); 556 U.S. ____ (2009); Fenstermacher v. Phila. 
Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can 
be predicated on insufficiency of notice since its purpose 
had been served.").  In order for the Court to be persuaded 
that no prejudice resulted from a notice error, "the record 
must demonstrate that, despite the error, the adjudication 
was nevertheless essentially fair."  Dunlap v. Nicholson, 21 
Vet. App. 112, 118 (2007).

Because VCAA notice in this case was not completed prior to 
the initial AOJ adjudication denying the claim, the timing of 
the notice does not comply with the express requirements of 
the law as found by the Court in Pelegrini.  Here, the Board 
finds that any defect with respect to the timing of the VCAA 
notice was harmless error.  Although notice was provided to 
the appellant after the initial adjudication, the claim was 
readjudicated thereafter, and the appellant therefore, has 
not been prejudiced.  

The appellant has been provided with every opportunity to 
submit evidence and argument in support of her claim, and to 
respond to VA notice.  All the VCAA requires is that the duty 
to notify is satisfied, and that claimants are given the 
opportunity to submit information and evidence in support of 
their claims.  Once this has been accomplished, all due 
process concerns have been satisfied.  See Bernard v. Brown, 
4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 
(1996).  

Duty to assist

With regard to the duty to assist, the claims file contains 
the Veteran's death certificate, service treatment records 
(STRs), private medical opinions, VA medical opinions, lay 
statements from relatives of the Veteran, copies of internet 
articles, and the transcript of an August 1997 Travel Board 
hearing with the Veteran.  Additionally, the claims file 
contains the appellant's statements in support of her claim.  
The Board has carefully reviewed such statements and 
concludes that she has not identified further evidence not 
already of record.  

Based on the foregoing, the Board finds that all relevant 
facts have been properly and sufficiently developed in this 
appeal and no further development is required to comply with 
the duty to assist the appellant in developing the facts 
pertinent to her claim.  Essentially, all available evidence 
that could substantiate the claim has been obtained.  There 
is no indication in the file that there are additional 
relevant records that have not yet been obtained.

Legal criteria

Service connection- in general

Service connection is warranted if it is shown that a Veteran 
has a disability resulting from an injury incurred or a 
disease contracted in active service or for aggravation of a 
pre-existing injury or disease in active military service.  
38 U.S.C.A. §§ 1110, 1131(West 2002); 38 C.F.R. § 3.303 
(2006).  Service connection may also be granted for any 
disease diagnosed after discharge when all of the evidence 
establishes that the disease was incurred in service.  See 38 
C.F.R. § 3.303(d).

Where a Veteran served continuously for 90 days or more 
during a period of war, or during peacetime service after 
December 31, 1946, and some diseases, such as a malignant 
tumor, becomes manifest to a degree of 10 percent or more 
within one year from the date of termination of such service, 
such disease shall be presumed to have been incurred in or 
aggravated by service, even though there is no evidence of 
such disease during the period of service.  This presumption 
is rebuttable by affirmative evidence to the contrary.  38 
U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 
C.F.R. §§ 3.307, 3.309 (2008).  

If there is no evidence of a chronic condition during 
service, or during an applicable presumptive period, then a 
showing of continuity of symptomatology after service is 
required to support the claim.  See 38 C.F.R. § 3.303(b).  
Evidence of a chronic condition must be medical, unless it 
relates to a condition to which lay observation is competent.  
See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997).

In each case where service connection for any disability is 
being sought, due consideration shall be given to the places, 
types, and circumstances of such Veteran's service as shown 
by such Veteran's service record, the official history of 
each organization in which such Veteran served, such 
Veteran's medical records, and all pertinent medical and lay 
evidence.  38 U.S.C.A. § 1154(a).

Presumptive service connection - herbicide exposure

VA regulations provide that certain diseases associated with 
exposure to herbicide agents may be presumed to have been 
incurred in service even if there is no evidence of the 
disease in service, provided the requirements of 38 C.F.R. § 
3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2008).  A Veteran 
who, during active service, served in the Republic of Vietnam 
during the period beginning on January 9, 1962, and ending on 
May 7, 1975, shall be presumed to have been exposed during 
such service to an herbicide agent, unless there is 
affirmative evidence to establish that the veteran was not 
exposed to any such agent during that service.  38 C.F.R. § 
3.307(a).  The last date on which such a Veteran shall be 
presumed to have been exposed to an herbicide agent shall be 
the last date on which he or she served in the Republic of 
Vietnam during the period beginning on January 9, 1962 and 
ending on May 7, 1975.  The term "herbicide agent" means a 
chemical in an herbicide, including Agent Orange, used in 
support of the United States and allied military operations 
in the Republic of Vietnam during the Vietnam era.

If a Veteran was exposed to an herbicide agent during active 
service, the following diseases shall be service-connected if 
the requirements of 38 C.F.R. § 3.307(a)(6) are met, even 
though there is no record of such disease during service, 
provided further that the rebuttable presumption provisions 
of 38 C.F.R. § 3.307(d) are also satisfied:  Chloracne or 
other acneform disease consistent with chloracne; Type 2 
diabetes (also known as Type II diabetes mellitus or adult-
onset diabetes); Hodgkin's disease; chronic lymphocytic 
leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and 
subacute peripheral neuropathy; porphyria cutanea tarda; 
respiratory cancers (cancer of the lung, bronchus, larynx or 
trachea); and soft-tissue sarcoma (other than osteosarcoma, 
chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 
C.F.R. § 3.309(e).  

The diseases listed at 38 C.F.R. § 3.309(e) shall have become 
manifest to a degree of 10 percent or more at any time after 
service, except that chloracne or other acneform disease 
consistent with chloracne, porphyria cutanea tarda, and acute 
and subacute peripheral neuropathy shall have become manifest 
to a degree of 10 percent or more within a year after the 
last date on which the Veteran was exposed to an herbicide 
agent during active military, naval, or air service.  38 
C.F.R. 
§ 3.307(a)(6)(ii).

Where the evidence does not warrant presumptive service 
connection, 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 
direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 
1994).  

Cause of Death 

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.  See 38 U.S.C.A. § 1310; 38 
C.F.R. § 3.312(a).  For a service-connected disability to be 
considered the primary cause of death, it must singly, or 
with some other condition, be the immediate or underlying 
cause, or be etiologically related thereto.  38 C.F.R. § 
3.312(b).  In determining whether a service-connected 
disability contributed to death, it must be shown that it 
contributed substantially or materially, that it combined to 
cause death, or that it aided or lent assistance to the 
production of death.  38 C.F.R. § 3.312(c)(1).

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.  38 C.F.R. § 
3.312(c)(3).

Medical evidence is required to establish a causal connection 
between service or a disability of service origin and the 
Veteran's death.  See Van Slack v. Brown, 5 Vet. App. 499, 
502 (1993).   

Analysis

The Board has reviewed all of the evidence in the claims 
file.  Although the Board has an obligation to provide 
reasons and bases supporting this decision, there is no need 
to discuss, in detail, the extensive evidence of record.  
Indeed, the Federal Circuit has held that the Board must 
review the entire record, but does not have to discuss each 
piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 
(Fed. Cir. 2000).  Therefore, the Board will summarize the 
relevant evidence where appropriate, and the Board's analysis 
below will focus specifically on what the evidence shows, or 
fails to show, as to the claim.

The appellant is claiming entitlement to service connection 
for the cause of the Veteran's death.  The Veteran's 
certificate of death lists the immediate cause of death as 
sepsis, due to liver failure, due to cancer of the pharynx, 
and pneumonia.  The appellant contends that the Veteran's 
December 1998 death from sepsis was related to the Veteran's 
service-connected diabetes mellitus.  Diabetes is not listed 
as an immediate cause of death, a condition leading to the 
immediate cause of death, or as a significant condition 
contributing to death, on the death certificate.  The 
appellant also contends that the Veteran's cancer of the 
pharynx was caused by his exposure to herbicides while in 
Vietnam, and as such should be service-connected.  

Diabetes 

The Board will first discuss the appellant's claim that the 
Veteran's service-connected diabetes mellitus was a cause of 
his death.  In August 2008, after the Veteran's death, 
service-connection was established for diabetes mellitus for 
accrued benefits purposes; however, the competent medical 
evidence of record does not reflect that the Veteran's 
service-connected disability was a principal or a 
contributory cause of death.

The claims file includes opinions from three physicians.  
First, the evidence of record includes January 2002 
correspondence from Dr. L.G.  The correspondence reflects 
that the Veteran, upon diagnosis in November 1978, was 
initially placed on neutral protamine Hagedorn (NPH) 
insulin.  Dr. L.G. further noted that an April 1985 
hospital record reflects that the Veteran was just on oral 
Diabinese for the diabetes, and on May 1998, about seven 
months before he died, hospital records showed that the 
Veteran was no longer on any medication to control his 
diabetes.  His fasting blood sugar level at that time was 
141 mg/di.  No opinion as to the Veteran's cause of death 
was given in the January 2002 correspondence.  In October 
2003 correspondence, Dr. L.G. opined that "upon further 
review of [the Veteran's] hospital chart, it appeared that 
his blood sugar was quite high at the time of his death.  
He was a known diabetic since 1978.  It is therefore just 
as likely, as it is not as likely that his diabetic 
condition contributed to the cause of his death."

Second, the evidence of record includes a March 2007 private 
medical opinion by Dr. C.N.B.  The opinion, titled 
independent medical evaluation, reflects the following:

It is my opinion that his diabetes absolutely 
and significantly contributed to [the 
Veteran's] demise as it is well known that 
widely abnormal blood and urine sugar levels, 
such as his levels of 408, 282, 267, 309, 203, 
232, 4+ urine, 2+ urine ketones (as per the 
attached lab results), cause exacerbations in 
sepsis and pneumonia.  Diabetes is associated 
with a relative immune -compromised state, 
which interferes with the body's ability to 
mount an immune response.  This patient's 
altered immune response likely hastened his 
death by way of uncontrolled/ unmodulated 
infections - sepsis.  In other words, his 
immune system was compromised due to his 
diabetes, which caused his sepsis and death.  
This patient died from sepsis and pneumonia, 
which is a form of uncontrolled infection, and 
it is my opinion, that his uncontrolled 
infection was due to his diabetes and 
associated abnormal blood sugar control.

Third, the evidence of record includes a VA examiner's 
opinion dated in June 2006.  The opinion reflects that the 
examiner reviewed the Veteran's claims file and medical 
records, including the opinion of Dr. L.G.  The examiner 
noted that December 1998 records, prior to the Veteran's 
death, revealed high random blood sugar once, on the 
morning before the Veteran died.  He received 50 
milliliters of glucose with 10 units regular insulin, and 
Kayexalate for the management of hyperkalemia.  No 
documentation of diabetes or its management is noted in the 
admission note on that date or on the subsequent available 
progress notes.  The examiner opined that it is not at 
least as likely as not that the Veteran's diabetes mellitus 
contributed to the Veteran's death.

The evidence of record includes a subsequent opinion by the 
same VA examiner, dated in January 2009, which reflects 
that the examiner reviewed the Veteran's claims file, his 
previous opinion, and the opinions of Dr. C.N.B. and Dr. 
L.G.  The examiner noted that the abnormal blood and urine 
sugar levels mentioned by Dr. C.N.B. are very old lab 
reports.  The examiner again opined that the Veteran's 
"diabetes mellitus less than likely as not contributed, 
aided or lent assistance to the production of his death, or 
hastened his death."

As is true with any piece of evidence, the credibility and 
weight to be attached to this opinion is within the province 
of the adjudicator.  Guerrieri v. Brown, 4 Vet. App. 467, 
470-71 (1993).  There is no requirement that additional 
evidentiary weight be given to the opinion of a medical 
provider who treats a Veteran; courts have repeatedly 
declined to adopt the "treating physician rule."  See White 
v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001).  Greater 
weight may be placed on one physician's opinion over another 
depending on factors such as reasoning employed by the 
physicians and whether or not and the extent to which they 
reviewed prior clinical records and other evidence.  
Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  

In weighing the probative value of the medical opinions noted 
above, the Board finds that the opinions of the VA physician, 
dated in June 2006 and January 2009, have more probative 
weight than the opinions of the private physicians, Dr. L.G. 
and Dr. C.N.B..

The Board finds that the January 2002 correspondence from Dr. 
L.G. is not an opinion, but a recitation of facts; as such, 
it holds no probative weight as to the cause of the Veteran's 
death.  The Board also finds that the October 2003 
correspondence by Dr. L.G. lacks probative value.  No 
rationale was provided for Dr. L.G.'s opinion that "it is 
just as likely as it is not as likely" that the Veteran's 
diabetes contributed to the cause of his death.  Although Dr. 
L.G. noted that the Veteran had a high blood sugar level at 
the time of his death, and had been diagnosed with diabetes 
in 1978, he did not give adequate supporting rationale as to 
how these two facts could have contributed to the Veteran's 
death.

The Board also finds that the opinions of the VA examiner are 
more probative than the opinion of Dr. C.N.B.  The Board 
notes that Dr. C.N.B.'s opinion was based on a review of the 
Veteran's claim file, including his STRs and post service 
medical records.  As noted above, Dr. C.N.B.'s opinion noted 
"widely abnormal blood and urine sugar levels, such as [the 
Veteran's] levels of 408, 282, 283, 267, 309, 203, 232, 4 
plus urine sugar, and 2 plus ketones.  As noted by the VA 
examiner, in his January 2009, opinion, these sugar levels 
are from "very old lab reports."  The evidence of record 
reflects that the above mentioned levels were from November 
1978, when the Veteran was initially diagnosed with diabetes, 
and more than 10 years prior to the Veteran's death.  Because 
Dr.C.N.B. relied on the Veteran's sugar counts from his 
initial diagnosis date, and the evidence of record does not 
reflect that he considered the Veteran's treatment for 
diabetes, or more recent blood sugar levels, the Board finds 
that it lacks probative weight.

Finally, the Board acknowledges that the evidence of record 
includes internet articles discussing type 2 diabetes.  
Assuming, arguendo, that the internet articles rise to the 
level of a medical article or medical treatise, the Board 
notes that the Court has held that a medical article or 
treatise "can provide important support when combined with 
an opinion of a medical professional" if the medical article 
or treatise evidence discusses generic relationships with a 
degree of certainty such that, under the facts of a specific 
case, there is at least "plausible causality" based upon 
objective facts rather than on an unsubstantiated lay medical 
opinion.  Mattern v. West, 12 Vet. App. 222, 228 (1999).  See 
also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 
11 Vet. App. 509 (1998).  In short, articles and treatises 
tend to be general in nature and tend not to relate to the 
specific facts in a given Veteran's claim.  In the present 
case, the articles fall into this general category.  Although 
the articles discuss type 2 diabetes and its relationship 
with liver disease, pneumonia, and sepsis, none of the 
articles pertain specifically to this Veteran Therefore, this 
evidence is not probative with regard to the issue here on 
appeal.

Carcinoma of the Pharynx

The appellant also contends that the Veteran's cancer of the 
pharynx is due to Agent Orange exposure; hence, she contends 
that it should be service connected.  The Veteran was not 
service-connected for cancer at the time of his death.  The 
evidence of record reflects that the Veteran was diagnosed 
with squamous cell carcinoma of the hypopharynx in 1996, 30 
years after his separation from service.  In a December 1997 
Board decision, entitlement to service connection for 
squamous cell carcinoma of the tongue, with metastasis to the 
neck, as a residual of Agent Orange exposure was denied.  

The Board will first consider the presumption of herbicide 
exposure.  The Veteran's DD Form 214 reflects that he 
received the Vietnam Service Medal.  There is no military 
document verification that the Veteran had service within the 
Republic of Vietnam; however, the claims file contains his 
lay statements regarding his service in Vietnam, as well as a 
VA letter, dated in February 1985, which reflects that the 
Veteran participated in the VA's Agent Orange registry.  
Thus, the Board concedes that the Veteran served in the 
Republic of Vietnam.  Therefore, it is presumed that he was 
exposed to an herbicide agent.  See 38 C.F.R. 
§ 3.307(a)(6)(iii).  Moreover, affirmative evidence does not 
exist to rebut that presumption.  

Despite presumed exposure to an herbicide agent, presumptive 
service connection under 38 C.F.R. § 3.307(a)(6) is not 
warranted.  Service connection is only warranted on this 
presumptive basis for a specific list of diseases set forth 
under 38 C.F.R. § 3.309(e) as listed above.  VA's Secretary 
has determined that a presumption of service connection based 
on exposure to herbicides used in the Republic of Vietnam 
during the Vietnam era is not warranted for any condition for 
which the Secretary has not specifically determined a 
presumption of service connection is warranted.  72 Fed. Reg. 
112 (2007).  The Secretary has not determined a presumption 
of service connection is warranted for pharyngeal cancer or 
cancer of the tongue.  As reported in the Federal Register, 
VA has specifically considered oral, pharyngeal, and squamous 
cell skin cancers and found the credible evidence is against 
an association between herbicide exposure and such cancers. 
As the Veteran's diagnosed disability is not among the 
diseases recognized under 38 C.F.R. § 3.309(e), as diseases 
associated with exposure to certain herbicide agents, 
presumptive service connection on the basis of herbicide 
exposure is not warranted.

The Federal Circuit has held that when a claimed disorder is 
not included as a presumptive disorder direct service 
connection may nevertheless be established by evidence 
demonstrating that the disease was in fact "incurred" during 
service.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 
1994).  It is the policy of VA to administer the law under a 
broad interpretation, consistent with the facts in each case, 
with all reasonable doubt to be resolved in favor of the 
claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

With respect to in-service incurrence, the Veteran's service 
treatment records (STRs) are negative for complaints of, or 
treatment for, cancer.  The only complaints of, or treatment 
for, the Veteran's neck area are May 1965 STRs which reflect 
that the Veteran had a temperature of 101 degrees, soft 
tissue swelling on the right side of the neck and bad right 
upper molar.  Lab results reflect a white blood cell count of 
9,250.  STRs dated the next day, reflect he had a temperature 
of 101.2 degrees, his white blood cell count was 9,400, his 
neutrophiles were 66 percent, and his lymphocytes were 26 
percent.  The report of medical examination for separation 
purposes, dated in January 1966, reflects normal findings as 
to the condition of the Veteran's mouth, throat, head, and 
neck.  The accompanying report of medical history reflects 
that the Veteran had his tonsils removed at age 10.  

As noted above, the evidence of record reflects that the 
Veteran was first diagnosed with cancer in 1996, 30 years 
after separation from service.  The Board finds this evidence 
weighs against a finding of onset in service.  The Board 
notes that evidence of a prolonged period without medical 
complaint, and the amount of time that elapsed since military 
service, can be considered as evidence against the claim. 
Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000.).  

As there is no evidence of cancer during service, or for many 
years after service, the Board must consider whether there is 
medical evidence of a nexus between the Veteran's disability 
and exposure to an herbicide in service.  As noted above, the 
claims file contains a medical opinion from Dr. C.N.B. dated 
in March 2007.  Dr. C.N.B. opined that it is more likely than 
not that Agent Orange caused the Veteran's pharyngeal cancer.  
The basis for Dr. C.N.B.'s opinion is that the Veteran's 
medical records do not support a more likely etiology and the 
literature supports his opinion.  The Board finds that this 
opinion lacks probative value.  First, Dr. C.B.'s opinion 
that the medical records do not support a more likely 
etiology does not discuss the March 1996 correspondence from 
the Veteran's oncologist, Dr. M.G, which is included in the 
evidence of record, and specifically addresses the etiology 
of the Veteran's cancer.  Dr. M.G. notes that the Veteran has 
abused smoking and alcoholism for a long time and has locally 
advanced squamous cell carcinoma of the hypopharynx that is 
related to alcoholism and smoking.  Because this opinion is 
by an oncologist, the Board finds it to be highly probative 
of the etiology of the Veteran's cancer.

Second, Dr. C.N.B. notes that the literature supports his 
opinion that the Veteran's pharyngeal cancer is causally 
related to Agent Orange exposure.  The literature referenced 
by Dr. C.N.B. is Table 6-10, Selected Epidemiologic Studies-
Oral, Nasal, and Pharyngeal Cancer, Veterans and Agent 
Orange, Update 2004, Committee to Review the Health Effects 
in Vietnam Veterans of Exposure to Herbicides (Fifth Biennial 
Update), Institute of Medicine, Washington D.C., The National 
Academies Press (2005).  While Dr. C.N.B.'s report contains 
the table upon which his opinion is based; the report does 
not reference the table's corresponding "Synthesis" and 
"Conclusion".  The Syntheses states:  "[s]tudies from 
previous Updates have not shown an association between oral, 
nasal, and pharyngeal cancers and the compounds of interest.  
The study by Akhtar et al. (2004) reviewed here also showed 
no increased risk of cancer of the buccal cavity.  The 
committee affirms that there is inadequate or insufficient 
evidence of an association."  Id. at 230.

The Conclusion states:  "On the basis of its evaluation of 
the epidemiologic evidence reviewed here and in previous 
Veterans and Agent Orange reports, the committee concludes 
that there is still inadequate or insufficient evidence to 
determine an association between exposure to the compounds of 
interest and oral, nasal, and pharyngeal cancers."

Therefore, the literature cited by Dr. C.N.B. does not 
support his opinion.  Moreover, in the Update 2006, the 
committee reaffirmed its position that there was insufficient 
or inadequate information to determine whether there is an 
association between the compounds of interest and oral, 
nasal, and pharyngeal cancers.  See Veterans and Agent 
Orange, Update 2006, Committee to Review the Health Effects 
in Vietnam Veterans of Exposure to Herbicides (Sixth Biennial 
Update), Institute of Medicine, Washington D.C., The National 
Academies Press (2007) at page 267.  

To summarize, Dr. C.B.'s opinion lacks probative value 
because his rationale does not consider all the evidence of 
record and conflicts with the literature he cites.



Sepsis, Liver Failure, and Pneumonia

Finally, the Board will consider whether the other conditions 
listed on the death certificate are causally related to 
military service.  The Veteran's STRs are negative for any 
complaint of, or treatment for, sepsis, liver failure, or 
pneumonia.  The Veteran's January 1963 report of medical 
history reflects a notation of no trouble with lungs or 
liver, but a history of pain or pressure in the chest.  The 
examiner's "summary and elaboration" reflects no 
significant abnormalities with regards to this reported 
history.  The Veteran's January 1963 report of medical 
examination upon enlistment reflects that upon clinical 
evaluation, he was noted to have normal lungs, and abdomen 
and viscera.  The Veteran's report of medical history, dated 
in January 1965, but signed in January 1966, and completed in 
conjunction with a January 1966 medical examination, reflects 
no complaints of lung or liver trouble.  The January 1966 
report of medical examination upon separation reflects that, 
upon clinical evaluation, the Veteran was noted to have 
normal lungs, and abdomen and viscera.

The certificate of death lists the approximate interval 
between the onset of sepsis and the Veteran's death as 10 
hours.  

The earliest evidence of record of any pneumonia is an April 
1985 private medical record which reflects that the Veteran 
had bilateral pneumonia; this was 19 years after the 
Veteran's separation from service, and thirteen years prior 
to his death.  There is no evidence of record that the 
Veteran's pneumonia was related to service.

The earliest evidence of record of a liver problem is a 
November 1980 private medical report which reflects that the 
Veteran had hepatomegaly; this was more than 14 years after 
the Veteran's separation from service.  The examiner noted 
that the hepatomegaly was "possibly on the basis of 
uncontrolled diabetes mellitus, although the patient does use 
alcohol somewhat excessively."  Such a statement is 
inconclusive as to the etiology of the Veteran's 
hepatomegaly, as such it is not probative.  As noted above, 
medical evidence that is speculative, general or inconclusive 
cannot be used to support a claim.  See Obert, supra.

An April 1985 private medical report reflects that the 
Veteran has a history of liver disease from chronic alcohol 
ingestion.  An August 1985 private medical report reflects 
that the Veteran is an alcoholic with liver disease.  A 
December 1985 private medical report reflects that the 
Veteran "apparently has hepatomegaly, probably secondary to 
his chronic alcoholism."

Based on the foregoing, the Board finds that the competent 
medical evidence of record does not reflect that the 
Veteran's sepsis, pneumonia, or liver failure was causally 
related to active service, to include as secondary to 
diabetes mellitus.

Conclusion

The competent credible clinical evidence of record fails to 
establish that the Veteran's service-connected diabetes 
mellitus was the principal or a contributory cause of the 
Veteran's death.  Moreover, while the Veteran's service in 
Vietnam allows for a presumption of herbicide exposure in the 
present case, cancer of the pharynx or tongue is not among 
the diseases listed under 38 C.F.R. § 3.309(e), thus 
precluding a grant of presumptive service connection as due 
to herbicide exposure.  The evidence of record fails to 
demonstrate that the Veteran's cancer was causally related to 
active service.  Moreover, there is no competent medical 
evidence of record that the Veteran's sepsis, liver failure, 
or pneumonia was causally related to military service, to 
include as secondary to diabetes mellitus.

For the above noted reasons, the appellant's claim of 
entitlement to service connection for the cause of the 
Veteran's death must be denied.  As the preponderance of the 
evidence is against the claim, the benefit of the doubt rule 
is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. 
Derwinski, 1 Vet. App. 49, 54-56 (1990).

The appellant may sincerely believe that the Veteran's 
service-connected diabetes was the cause of the Veteran's 
death, and that his cancer was causally related to active 
service, to include exposure to Agent Orange.  However, as a 
lay person she is not capable of opining on matters requiring 
medical knowledge or expertise.  Espiritu v. Derwinski, 2 
Vet. App. 492, 494 (1992).  As the preponderance of the 
evidence is against this claim, the benefit-of-the-doubt rule 
does not apply, and the claim for service connection for the 
cause of the Veteran's death must be denied.  See 38 U.S.C.A. 
§ 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).


ORDER

Entitlement to service connection for the cause of the 
Veteran's death is denied.





____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs