Citation Nr: 1315969 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 07-38 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran served on active military duty from January 1963 to August 1973. He died in December 2005, and the appellant is the Veteran's widow. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May and November 2006 rating decisions of the Department of Veterans Affairs (VA) in Nashville, Tennessee that denied service connection for cause of death. The Veteran requested a hearing in her December 2007 substantive appeal. She was scheduled for a hearing in May 2009 and failed to appear. She has not asserted good cause for missing her scheduled hearing and her hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). In March 2011, the Board remanded the appeal to the RO, via the Appeals Management Center (AMC), for additional development. The AMC completed the additional development as directed, continued to deny the claim, and returned the case to the Board for additional appellate review. In February 2012, the Board denied entitlement to service connection for cause of death. The appellant filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). By Order dated September 2012, the Court granted a Joint Motion for Remand (JMR), which vacated the February 2012 Board decision and remanded the issues to the Board for development and readjudication consistent with the JMR. In February 2013, the Board remanded the claim for additional development. The case is now ready for review on the merits. A review of the Virtual VA paperless claims processing system does not show any pertinent evidence that is not already associated with the physical claims folder. FINDINGS OF FACT 1. The Veteran's death certificate shows that he died in December 2005 of hepatic failure due to adenocarcinoma. 2. At the time of the Veteran's death, service connection was in effect for left above-knee amputation; peripheral neuropathy of right lower extremity; diabetes mellitus Type II, with erectile dysfunction; crushing injury of right groin, with depressed scar of upper thigh and loss of substance; laceration of right shoulder with some muscle loss; right knee injury; tinnitus; history burr hole of left parietal area, with history of cerebral contusion; bilateral hearing loss; gunshot wound, buttocks; and, neuropathy of left superficial saphenous nerve. 3. The Veteran is presumed to have been exposed to herbicides while in service. 4. Resolving all doubt in the appellant's favor, herbicide exposure materially contributed to the subsequent development of hepatocellular carcinoma. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant is seeking service connection for cause of death of the Veteran. The Board concludes that the VCAA does not preclude the Board from adjudicating the appellant's claim. This is so because the Board is taking action favorable to appellant by granting her service connection claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the fact the Board allows the benefit sought on appeal, discussion of VA's compliance with the notice and assistance requirements of the VCAA, 38 U.S.C.A. § 5100 et seq. (West 2002 and Supp. 2012), would serve no useful purpose. II. Service connection for cause of death Laws and regulations The appellant is claiming entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1310. 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. 38 C.F.R. § 3.312(b). 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. 38 C.F.R. § 3.312(c)(1). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C.A. § 1310. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. For chronic disabilities listed under 38 C.F.R. § 3.309(a), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). However, the claimed liver cancer is not considered a chronic disability within the purview of 38 C.F.R. § 3.309(a) and the alternative method for establishing service connection through continuity of symptomatology is not applicable. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition such as a fall leading to a broken leg, a lay person is generally not competent to provide evidence as to more complex medical questions, such as the etiology of cancer. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). A Veteran who, during active military, naval, or air 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. See 38 U.S.C.A. § 1116(f) (West 2002), 38 C.F.R. § 3.307(a)(6) (iii) (2012). The Veteran's DD 214 shows that he earned a Vietnam Service Medal, Vietnam Campaign Medal, and Combat Infantry Badge, among others. However, under the "Remarks" section it lists "Vietnam - No." Review of the Veteran's service treatment records shows that he was reported to be in Vietnam from January to December 1966 and had a gunshot wound injury in Vietnam. Notwithstanding the remark on the Veteran's DD 214, the weight of the evidence establishes service during the requisite period in Vietnam, and he is entitled to the presumption of herbicide exposure. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain listed diseases shall be service connected. However, they do not include liver cancer. See 38 U.S.C.A. § 1116 (West 2002), 38 C.F.R. § 3.309(e), Note 2 (2012). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides is not warranted for hepatobiliary cancers, including hepatic cancers. Specifically: For Update 2006, NAS [National Academy of Sciences] found that no new reports of a definitive link between exposure to the compounds of interest and hepatobiliary tumors were found. One study suggested a reduced risk of hepatic cancers in Veteran populations, and one suggested an increased risk of cancer of the gallbladder among forestry workers. However, given the relatively low incidence of hepatobiliary cancers in Western populations, NAS concluded that the evidence from epidemiologic studies remains inadequate to link the compounds of interest with hepatobiliary cancer. See Notice, 75 Fed. Reg. 32540 -32548 (June 8, 2010). Subsequently, it was indicated that NAS, after reviewing pertinent studies, did not feel that the evidence warranted altering its prior determination that there was inadequate or insufficient evidence of an association between exposure to herbicide agents and the subsequent development of other disability. Id. Regardless of whether a claimed disability is recognized under 38 U.S.C.A. § 1116, pertaining to herbicide agent exposure presumptive diseases, a claimant is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Factual Background Service treatment records are negative for evidence of liver cancer in service. Nonetheless, as explained above, the Veteran is shown to have in country Vietnam service and is presumed to have been exposed to herbicides at that time. See DD 214; 38 U.S.C.A. § 1116(f) (West 2002), 38 C.F.R. § 3.307(a)(6) (iii) (2012). The evidence of record shows that, during the Veteran's lifetime, service connection was in effect for left above-knee amputation; peripheral neuropathy of right lower extremity; diabetes mellitus Type II, with erectile dysfunction; crushing injury of right groin, with depressed scar of upper thigh and loss of substance; laceration of right shoulder with some muscle loss; right knee injury; tinnitus; history burr hole of left parietal area, with history of cerebral contusion; bilateral hearing loss; gunshot wound, buttocks; and, neuropathy of left superficial saphenous nerve. The Veteran's death certificate shows that the immediate cause of death was hepatic failure due to or as a consequence of adenocarcinoma. As concerns the Veteran's treatment for hepatic failure and adenocarcinoma, the records first revealed a diagnosis of adenocarcinoma in December 2005. The Veteran had presented with a three-week history of abdominal pain and nausea and anorexia of unclear etiology, and was hospitalized. A computed tomography scan showed evidence of a malignancy of the liver. Records reflect that multiple, innumerable masses in the liver were felt to be secondary to multiple diffuse hepatic metastasis. The Veteran's performance status was too poor to consider chemotherapy. He became progressively and rapidly jaundiced over the next few days. Biopsy results showed an incurable terminal malignancy, and comfort measures were applied. The Veteran became progressively worse over the next 12 hours and expired the next day. Records at the time reflected death secondary to metastatic adenocarcinoma with progressive multi-system organ failure, including a hepatic failure, pulmonary failure, and renal failure. In October 2006, the Veteran's surgical oncologist, R.H.J., M.D., noted that the immediate cause of the Veteran's death in December 2005 was hepatic failure secondary to adenocarcinoma. The oncologist opined that the Veteran's adenocarcinoma may be related to previous exposure to Agent Orange. In May 2008, the appellant submitted several articles pertaining to Agent Orange, liver dysfunction, and cancer, which had been reviewed by the Veteran's oncologist. In April 2011, VA obtained a medical opinion based upon review of the claims folder. The VA examiner opined it was not likely that the Veteran's hepatic cancer was causally connected to his military service, to include as a result of exposure to Agent Orange. As concerns Dr. J's opinion, the VA examiner noted that Dr. J's opinion was far from a definitive statement of the etiology of the Veteran's cancer. The VA examiner noted that the medical evidence showed that it was not known if the Veteran's cancer was primary to the liver or metastatic from another organ, which meant that the etiology of the cancer was unknown. In light of the fact the etiology of the cancer was unknown; the VA examiner opined that it was not likely related to the Veteran's active service, including his exposure to Agent Orange. The VA examiner also considered whether the Veteran's service-connected disability materially contributed to the Veteran's death and opined it was not at least as likely as not that either or all did. The VA examiner noted that the Veteran's death due to hepatic failure which was caused by adenocarcinoma in the liver. The examiner noted further that the cancer had apparently almost totally replaced the normal liver itself. The examiner observed that the Veteran's other medical problems appeared to have been stable, and they did not contribute in any material way to his death. The Board sought clarification from the April 2011 VA examiner in view of the conflict in indicating that it was not known if the Veteran's cancer was primary to the liver or metastatic and that it was not likely that the liver cancer was related to service. Another physician reviewed the claims folder. The physician noted that the medical evidence initially indicated that the Veteran died from adenocarinoma of unknown, but review of the liver biopsy pathology report was amended to show primary hepatocellular carcinoma (HCC). He stated that there is no nexus between service connected disabilities and HCC and that scientific studies had not established a direct link between HCC and Agent Orange. However, some epidemiological evidence suggested an increased incidence of HCC in individuals exposed to Agent Orange. He cited a published medical article. He concluded that it was at least as likely as not that the Veteran's in-service herbicide exposure materially contributed to death by HCC. Analysis As detailed below, all three prongs of service connection are met. Combee, 34 F.3d at 1044-45; 38 C.F.R. §§ 3.303, 3.307, 3.309. The claim will be granted. In cause of death claims, the threshold requirement of a current disability will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). The next element of an in-service event is satisfied through the presumption of herbicide exposure during the Veteran's 1966 service in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The remaining prong, a nexus, is satisfied by the February 2013 addendum medical opinion. The VA examiner expressed a negative opinion in April 2011. However, in February 2013 another physician stated that the initial opinion was misinformed as to the precise diagnosis - primary heptaocellular carcinoma. He expressed a positive opinion, citing a medical study suggesting an increased incidence of such cancer among persons exposed to Agent Orange. Briefly, the Board observes that the NAS Update 2006 did not find a direct link between Agent Orange exposure and liver cancer based upon inadequate or insufficient clinical evidence. Notice, 75 Fed. Reg. 32540-32548 (June 8, 2010). The February 2013 medical examiner acknowledged clinical studies failing to confirm a direct link, but nonetheless determined that a material contribution was present based upon a clinical study of increased incidence. Hence, his opinion is not necessarily inconsistent with the NAS study. The February 2013 medical opinion is based upon a review of the record and supported by a detailed rationale. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds it sufficient to show a nexus. In summary, all three prongs necessary to establish service connection are met, and the claim is granted. Combee, 34 F.3d at 1044-45; 38 C.F.R. §§ 3.303, 3.307, 3.309. (CONTINUED ON NEXT PAGE) ORDER Service connection for cause of death is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs