Citation Nr: 1436362 Decision Date: 08/14/14 Archive Date: 08/20/14 DOCKET NO. 11-20 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1968. He died in February 2006. The Appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2012, the Appellant testified at a Travel Board hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In addition to the paper claims file, the Board has reviewed the record maintained in the Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files associated with the Veteran's claim. FINDINGS OF FACT 1. The Veteran's death certificate states that he died in February 2006 at the age of 58; asystole was listed as the immediate cause of death, which was due to or as a consequence of liver failure and renal failure. His treatment records indicate that the liver failure was associated with liver cancer. 2. The probative evidence of record weighs in favor of a finding that his liver cancer was caused by exposure to Agent Orange in service. 3. The evidence of record reasonably shows that the cause of the Veteran's death was related to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, as the Board is granting the benefit sought in its entirety, there is no further need to discuss VA's efforts to comply with the duties to notify and assist. The Appellant asserts that the liver cancer which caused the Veteran's death was itself caused by the Veteran's exposure to Agent Orange while serving in Vietnam. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or must be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or 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). If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. The standards and criteria for determining whether or not a disability from which a Veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the Veteran is still alive. 38 U.S.C.A. § 1310. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 C.F.R. § 3.307(a). The diseases listed at 38 C.F.R. § 3.309(e) shall, in turn, be presumptively service connected if this requirement is met, even though there is no record of such disease during service. The lists of diseases that are presumed to be related, or due to, herbicide exposure are updated by the Secretary based on information provided by the National Academy of Sciences (NAS). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924-47,928 (Aug. 10, 2012). In this case, the record reflects that the Veteran served in Vietnam during the period between January 9, 1962 and May 7, 1975. Therefore, he is presumed to have been exposed to herbicides coincident with such service. 38 C.F.R. § 3.307(a)(6)(iii). Private treatment records show that he was diagnosed with hepatocellular carcinoma (primary liver cancer). The Veteran died in February 2006. The death certificate lists asystole as the immediate cause of death, with underlying causes of liver failure and renal failure. At the time of his death, the Veteran was not service-connected for any disabilities. Cancers of the liver such as hepatocellular carcinoma are not among the diseases for which VA's Secretary has recognized as having a presumptive relationship with herbicide exposure. While a presumption exists for certain chronic diseases that become manifest to a compensable degree within one year following active service, the Veteran's hepatocellular carcinoma was not diagnosed until many years after his separation from active duty. Nevertheless, the Appellant is not precluded from establishing service connection for the cause of the Veteran's death with proof of actual direct causation. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). A March 2011 letter written by the Veteran's private physician states that "there are indeed significant health effects due to Agent Orange and that there will never be any ironclad evidence that certain cancers and skin conditions were NOT caused by the herbicide." Further, the physician opines that "there is no question that [the Veteran's] liver cancer could have been related to the herbicide and the exposure to dioxin and other chemicals that it contained." At her May 2012 Board hearing, the Appellant testified that the Veteran never smoked. She also testified that there was no history of cancer in the Veteran's immediate family. In May 2014, the Board requested an advisory opinion to be conducted by a VHA specialist. In July 2014, a VA specialist concluded it was at least as likely as not (50 percent or greater probability) that the liver cancer that caused the Veteran's death was related to Agent Orange or other herbicide exposure in service. After a review of the Veteran's claims file and the available medical records, the specialist stated that the Veteran did not have any of the known risk factors for development of hepatocellular carcinoma, such as hepatitis B, hepatitis A, cirrhosis, alcohol abuse, hereditary hemochromatosis, or family history. The specialist further stated that hepatocellular carcinoma was not a common tumor type in the United States and becomes very rare once one excludes patients with the above-noted risk factors. Further, the specialist stated that Agent Orange is a known carcinogen and there was documented evidence that exposure to dioxins similar to Agent Orange can cause pathologic changes and inflammation in the liver in humans which are the first steps in evolution to cancer. Further, the VA specialist stated that there are long-term animal studies showing that exposure to dioxins can lead to liver carcinoma. In support of this statement, the VA specialist provided a link to an Institute of Medicine report entitled "Veterans and Agent Orange: Update 2012." The VA specialist concluded that given the absolute lack of any other risk factors for hepatocellular carcinoma and the clear biologic plausibility of Agent Orange as a causative agent in the liver cancer developed by the Veteran, the examiner stated that it was more likely than not that the Veteran's hepatocellular carcinoma was caused by exposure to Agent Orange. The Board finds that the July 2014 opinion from the VA specialist is afforded significant probative weight. The opinion was rendered following a review of the Veteran's claims file, and the conclusion was supported by an extensive rationale and citations to supporting medical references. There is no contradictory medical opinion in the claims file. Accordingly, resolving the benefit of the doubt in favor of the Veteran, service connection for the cause of the Veteran's death is granted. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs