Citation Nr: 1753052 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-28 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1964 to December 1966. The Veteran died in March 2007. The appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2014 and May 2016, the Board remanded the case for additional evidentiary development, and it has been returned to the Board for appellate review. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and there is no affirmative evidence that he did not have herbicide exposure while stationed in Vietnam. 2. The Veteran died in March 2007, and at the time of his death service connection was not established for any disability. 3. The immediate cause of death was adult respiratory distress syndrome (ARDS), due to pneumonia, due to adenocarcinoma. 4. The Veteran's ARDS, pneumonia, or adenocarcinoma were not incurred in nor related to any in-service occurrence, to include herbicide exposure, nor listed or contemplated among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e). 5. Malignant tumors are listed among the chronic diseases listed under 38 C.F.R. § 3.309(a), but the Veteran's adenocarcinoma did not manifest to a compensable degree within one year of separation from service or noted to be chronic during service. 6. Diabetes mellitus is listed among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e) and among the chronic diseases listed under 38 C.F.R. § 3.309(a), but the Veteran did not have a diagnosis of diabetes mellitus, type II, at any time after separation from service. 7. Ischemic heart disease, to include coronary artery disease (CAD), myocardial infarction (MI), and coronary bypass surgery, is listed among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e), and the Veteran's post-service diagnoses of a heart disability was manifested to a compensable degree of at least 10 percent after separation from service by the required continuous medication. 8. The Veteran's heart disability was not, singly or jointly with some other condition, the immediate or underlying cause of the Veteran's death, etiologically related thereto, contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1133, 1137, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the appellant nor her representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the provisions of 38 C.F.R. § 3.303(b) apply only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a)). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection can also be established through application of statutory presumptions, including for "chronic diseases," such as diabetes and malignant tumors, when manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, a specified list of diseases, to include diabetes mellitus and ischemic heart disease (encompassing MI and CABG), shall be service connected if manifests to a compensable at any time after service. See 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicides. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal or a 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, singly or jointly with some other condition, the immediate or underlying cause of death or be etiologically related thereto. 38 C.F.R. § 3.312(b). In order for the service-connected disability to be a contributory cause of 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. 38 C.F.R. § 3.312(c)(1). Throughout the course of the appeal, the following contentions for service connection for the cause of the Veteran's death have been raised by the record. First, in the July 2010 substantive appeal, the appellant asserted that the Veteran's adenocarcinoma is related to his exposure to herbicides in Vietnam. Second, the appellant's representative asserted in an April 2016 written brief that the Veteran's renal cell carcinoma may be associated with diabetes. Third, the appellant asserted in a December 2010 VA Form 21-4138 that the Veteran's death is related to his history of heart problems over the last ten years of life. At the time of the Veteran's death in March 2007, service connection was not established for any disabilities. The Veteran's death certificate shows that his immediate cause of death was ARDS, due to pneumonia, due to adenocarcinoma. With regard to the first contention, review of the Veteran's service treatment records are silent as to any complaints, treatment or diagnosis relevant to ARDS, pneumonia, or adenocarcinoma. Evaluation of the Veteran at the time of his entrance and separation examinations did not reveal any respiratory or genitourinary abnormalities. On his enlistment examination reported dated in January 1964 and his discharge examination report dated in December 1966, his respiratory or genitourinary evaluations were recorded as normal. Review of service treatment records therein are silent for, nor does the appellant assert, any complaints or treatment relevant to his lungs or kidney during the Veteran's period of active service. Moreover, an examination report dated September 1964 documented normal findings from respiratory and genitourinary evaluations. Review of the record also shows the Veteran served in the Republic of Vietnam and there is no affirmative evidence that he did not have herbicide exposure while stationed in Vietnam. Nevertheless, ARDS, pneumonia, or adenocarcinoma are not listed or contemplated among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e) nor is there competent evidence of record indicating a link between these causes of the Veteran's death to herbicide exposure during his period of active service. Moreover, while malignant tumors are listed among the chronic diseases listed under 38 C.F.R. § 3.309(a), review of the record does not show the Veteran's adenocarcinoma manifested to a compensable degree within one year of separation from service or noted to be chronic during service. In fact, the Veteran's death certificate documents the approximate interval between onset and death for adenocarcinoma as one to two months, which is many years after separation from service in 1966. Additionally, in June 2014, a VA examiner specifically found that the Veteran's renal cancer and cause of death were not directly caused by herbicide exposure. As such, service connection for ARDS, pneumonia, or adenocarcinoma on a direct basis or on presumptive bases based on herbicide exposure or as a chronic disease is not warranted in this case. See 38 C.F.R. §§ 3.303, 3.309(a), (e). With regard to the second contention regarding a link between the Veteran's renal cell carcinoma and diabetes, review of private treatment records show the Veteran's glucose fasting test results in January 2007 were 139 and within the range for a provisional diagnosis of diabetes, and his past medical history included diabetic kyllosis as noted in February 2007. The appellant's representative also submitted, with the April 2016 written brief, a medical journal article entitled "Diabetes and Risk of Renal Cell Carcinoma." Pursuant to the May 2016 Board remand, an October 2016 VA medical opinion provided the following: The available medical records do not contain any documentation that would confirm a diagnosis of diabetes. However, even if the Veteran did have diabetes, there is a possible association but no cause and effect relationship between diabetes and the development of renal carcinoma. Therefore, it would be less likely than not that this Veteran's renal cell carcinoma was either caused by or aggravated by diabetes. While diabetes mellitus is listed among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e) and among the chronic diseases listed under 38 C.F.R. § 3.309(a), the most probative evidence of record does not show the Veteran had a confirmed diagnosis of diabetes mellitus, type II, at any time after separation from service. The record and the appellant are silent for any indication that the Veteran had continuous symptoms of diabetes since separation from service. Moreover, review of the Veteran's service treatment records do not show that diabetes was noted to be chronic during service. Evaluation of the Veteran at the time of his entrance and separation examinations did not reveal any endocrine abnormalities. On his enlistment examination reported dated in January 1964 and his discharge examination report dated in December 1966, his endocrine evaluation was recorded as normal. Review of service treatment records therein are silent for, nor does the appellant assert, any complaints or treatment relevant to diabetes during the Veteran's period of active service. Moreover, an examination report dated September 1964 documented normal findings from an endocrine evaluation. The Board acknowledges the appellant's representative submission of the medical journal article regarding diabetes and renal cell carcinoma with the April 2016 written brief. While 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). In this case, this article submitted by the representative does not show that the Veteran in this case had diabetes. The preponderance of the evidence shows that the Veteran did not have a diagnosis of diabetes mellitus, type II. As such, service connection for diabetes mellitus, type II, on a direct basis or on presumptive bases based on herbicide exposure or as a chronic disease is not warranted in this case. See 38 C.F.R. §§ 3.303, 3.309(a), (e). Lastly, the Board considers the third contention regarding a link between the Veteran's death and history of heart problems. As noted above, ischemic heart disease, to include MI and CABG, is listed among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e). Review of the evidentiary record demonstrates the Veteran had a post-service diagnosis of a heart disability that manifested to a compensable degree of at least 10 percent after separation from service by the required continuous medication. Private treatment records, dated in 2007, document his past medical history included CAD and MI in 1999, his past surgical history included CABG surgery in 2001, and list of medications at the time of his death included aspirin, Toprol-XL, Lipitor, Diovan, and Lisinopril. As such, the Veteran's heart disability is presumed to have been related to the presumed in-service herbicide exposure. See 38 C.F.R. §§ 3.303, 3.309(e). Nevertheless, as noted above, the Veteran's death certificate does not include a heart disability as one of the immediate or underlying causes of his death. Moreover, the probative evidence of record does not suggest that the Veteran's heart disability contributed substantially or materially to cause his death, including any assertion of such a link from the appellant. Pursuant to the June 2014 Board remand, a July 2014 VA medical opinion, with supportive rationale, provided it was less likely than not that the Veteran's cause of death is related to herbicide exposure and/or his 1999 heart attack and the Veteran's cause of death is at least as likely as not related to residuals from terminal end-stage renal carcinoma. The examiner explained that there is no supportive medically-based evidence to relate the two independent events. The examiner stated, "[s]pecifically, the 2007 cardiovascular evaluation observed mild cardiovascular residuals at the time of death and no acute or chronic cardiopulmonary pathology." Further, the examiner found that the Veteran's death was due to terminal end-stage renal cancer and withdrawn care. The examiner noted that the Veteran had a MI in 1999 and a review of medical literature is silent for a relationship between residuals of an MI and development of renal cancer or ARDS. Additionally, the examiner noted that the final presentation for death, ARDS and pneumonia, were foreseeable and reasonable progressions of the Veteran's end-stage symptoms of renal cancer. As such, the Board finds the Veteran's heart disability was not, singly or jointly with some other condition, the immediate or underlying cause of the Veteran's death, etiologically related thereto, contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312. The Board has considered the appellant's reported history of symptomatology related to the Veteran's medical disabilities and cause of death throughout the appeal period. She is competent to report such symptoms and observations because this requires only personal knowledge as it comes through ones senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, the appellant's statements do not rise to a level of competency to offer a probative opinion as to the etiology of the Veteran's cause of death. Determining the etiology of the Veteran's death requires inquiry into internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. As a result, the probative value of her lay assertions is low. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs