Citation Nr: 1753531 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-06 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran had active service from July 1966 to May 1969. He died in January 2004. The appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the RO in St. Petersburg, Florida. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager file. LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. In June 2016, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran's official death certificate shows that the Veteran died in January 2004; the immediate cause of the Veteran's death was carcinoma of the pancreas, with no contributory causes of death. 2. At the time of his death, the Veteran was service connected for diabetes mellitus and hearing loss of the right ear. 3. The most probative evidence of record establishes that the Veteran's death was not caused or hastened by a disability incurred in or aggravated by service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the appellant nor her representative has raised any 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). For dependency and indemnity compensation (DIC) benefits, VCAA notice must further 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. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Through a July 2010 letter, the RO notified the appellant of elements of service connection for cause of death, and the evidence needed to establish each element. The letter also included a statement of the conditions for which a Veteran was service-connected at the time of his death and an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition or based on a condition not yet service-connected. See Hupp, 21 Vet. App. at 352. In a cause of death claim, VA has a duty to obtain a medical opinion if such is needed to assist the appellant in substantiating the claim. DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). An opinion was not needed where "the even more restrictive" test of 38 U.S.C.A. § 5103A(d) was not met. DeLaRosa, 515 F.3d. at 1322. Under that test, VA is obliged to obtain an opinion when the record contains competent evidence that the veteran had a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d). A mere conclusory generalized lay statement that service event or illness caused the claimant's current condition, in this case, the Veteran's death, is insufficient to require the Secretary to provide an examination or obtain an opinion. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Here, however, an opinion was obtained in July 2017. The appellant also offered testimony before the undersigned Veterans Law Judge at a Board hearing in June 2016. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior September 2016 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Merits The appellant seeks service connection for the cause of the Veteran's death. In her January 2011 Notice of Disagreement (NOD), the appellant asserted that the Veteran's pancreatic carcinoma was either caused by his diabetes mellitus (DM) or his significant Agent Orange exposure in Korea. For the following reasons, the Board finds that service connection for the Veteran's cause of death is not established. To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310. A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a refutable presumption of service incurrence, such as cardiovascular disease, if manifested to the required degree within a prescribed period from the Veteran's separation from active duty; or one that is proximately due to or the result of, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, 3.310(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. 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, 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. If a Veteran was exposed to an herbicide agent during active service, presumptive service connection for a disability or death is warranted for certain disorders; pancreatic cancer, however, is not listed among the diseases presumed to be associated with Agent Orange exposure. 38 C.F.R. § 3.309(e). Accordingly, the Board finds that the Veteran did not have a disease presumed to be associated with Agent Orange exposure under 38 C.F.R. § 3.309(e), despite his presence at the DMZ in Korea entitling him to a presumption of exposure. Hence, entitlement to presumptive service connection for cause of death on this basis is not warranted. Despite the lack of presumptive service connection, service connection based on direct causation may still be established pursuant to Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The appellant asserts that the Veteran's death was due to his Agent Orange exposure and/or due to his service-connected DM. The Veteran's STRs are silent regarding any complaints, symptoms, or treatment for pancreatic cancer. In her December 2002 statement the appellant noted that the Veteran used to be a heavy drinker and smoker, but that he had stopped. VA medical records from February 2003 note that the Veteran reported that he had been a smoker and had quit in either 1987 or 1997. March 2003 VA medcial records document the Veteran's prior alcohol use but none at the current time. September 2003 VA records note that the Veteran's elevated fasting blood glucose levels met the diagnostic criterion for the diagnosis of DM. At that time, the Veteran's BMI score placed him in the overweight category. A January 7, 2004 Tampa VA medical record noted that the Veteran was diagnosed with pancreatic cancer by an outside doctor in December 2003. In December 2012, a VA opinion was obtained upon a review of the claims file. The examiner opined that the Veteran's service connected diabetes was less likely than not related to his cause of death, citing other risk factors for pancreatic cancer other than herbicide exposure according to medical literature. In June 2016 the appellant testified at a Board hearing regarding the cause of the Veteran's death. At that hearing the appellant stated that the Veteran had little to no risk factors for pancreatic cancer, except for his diagnosed DM. See June 2016 Board Hearing Transcript p.6. A July 2017 opinion was thereafter obtained. The examiner reviewed the claims file. The examiner opined that the veteran's cause of death is less likely than not (less than 50 percent) related to the Agent Orange exposure or to the service connected Diabetes Mellitus. The examiner found that it was less likely than not that the Veteran's DM contributed to his death by pancreatic cancer in any substantial or material manner. The examiner found that it cannot be opined that a causal connection exists. The examiner took careful note of the medical literature that the appellant provided, regarding a possible link between pancreatic cancer and a diagnosis of DM. After discussing all risk factors for pancreatic cancer which are incurred, which included a history of smoking, a history of alcohol and abuse and being overweight, the examiner also discussed risk factors such as age, gender and inherited genetics. The examiner then discussed the link between DM and pancreatic cancer. The examiner addressed the fact that pancreatic cancer is more common in people with diagnoses of DM; however, he then stated that based on his review of the Veteran's medical history the Veteran had many risk factors for pancreatic cancer other than DM including his advanced age, being overweight, the past influence of alcohol and tobacco. In addition, the Veteran was diagnosed with DM only a year before he was diagnosed with pancreatic cancer; the examiner noted that the medical literature relied upon stated that the DM would be long standing so as to predispose one to develop pancreatic cancer. The examiner stated that the Veteran did not have DM long enough to have resulted in the development of the pancreatic cancer, and that the presence of other risk factors that the Veteran already had were more likely to predispose the Veteran to develop his cancer. The examiner further noted that the Veteran's Agent Orange exposure was not likely to have been related to his development of pancreatic cancer. With regards to the causal relationship between Agent Orange exposure and the development of pancreatic cancer, the examiner found there was still no definite causal relationship associated with such an exposure. The examiner again noted that the Veteran's aforementioned established risk factors would have been more likely related in the development of the pancreatic cancer. The Board finds that service connection for the cause of the Veteran's death is not warranted either as due to Agent Orange exposure or as due to the service-connected diabetes mellitus. The most probative evidence of record shows that the Veteran's DM was not a contributory cause of death. In particular, the July 2017 examiner opined that the Veteran's service connected DM did not likely cause or lead to his pancreatic cancer. The Board finds such opinion is highly probative evidence. The VA examiner's opinion is shown to have been based on a review of the Veteran's claims file, and it is accompanied by a sufficient explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The provider was familiar with the Veteran's medical condition, and considered the Veteran's medical picture as a whole and provided support for the conclusion reached. No conflicting medical opinion regarding the Veteran's cause of death is of record. The Board also finds that most probative evidence of record also indicates that the pancreatic cancer was not due to Agent Orange exposure. As noted above, the 2017 VA examiner reviewed the claims file and opined that the Veteran's Agent Orange exposure was not likely to have been related to his development of pancreatic cancer, noting other risk factors. Thus, the Board finds such opinion is highly probative evidence. See Nieves-Rodriguez, 22 Vet. App. at 304; Prejean, 13 Vet. App. at 448-9. There is no other medical opinion of record. Furthermore, this conclusion is supported by the National Academy of Science (NAS) findings. In this regard, the Secretary of Veterans Affairs (Secretary) entered into an agreement with the NAS to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure. The NAS was to determine, to the extent possible, whether there was a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. The NAS was required to submit reports of its activities every two years. The Secretary, under the authority of the Agent Orange Act of 1991 and based on studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-608 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); 74 Fed. Reg. 21,258-260 (May 7, 2009). In September 2011, the NAS issued Veterans and Agent Orange: Update 2010 (Update 2010). Based on the Update and prior NAS reports, the Secretary specifically determined that a presumption of service connection based on exposure to herbicides is not warranted for pancreatic cancer. See 77 Fed. Reg. 155 (August 10, 2012). In particular, NAS found inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and pancreatic cancer. As such, the Secretary's determination based on the NAS's findings indicates a non-relationship. The Board finds that the report of the NAS is of great probative value in evaluating the appellant's claim. Its conclusions are based on nationwide, peer-reviewed studies conducted over time with specific focus on the veteran population. The competent evidence of record does not contradict the findings. Therefore, the Board finds that the evidence does not support a nexus between the Veteran's service and his fatal pancreatic cancer. The appellant clearly believes that service connection is warranted as due to the Veteran's service-connected DM or as due to Agent Orange exposure. As a lay person the appellant is competent to report what comes to her through her senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, her lay statements and testimony have been reviewed and considered and are competent in this regard. However, the appellant lacks the medical training and expertise to provide a complex medical opinion as to the primary, and any contributing causes, of her husband's death - the etiology of his carcinoma, which is a complex internal development process rather than something capable of lay observation such as ringing in the ears or varicose veins. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In sum, the record does not contain probative evidence sufficient to establish a nexus between the Veteran's DM or his service and his cause of death. The most probative evidence of record does not show that the Veteran's DM or service caused or contributed substantially or materially to his cause death of pancreatic cancer. Service connection for cause of the Veteran's death is therefore denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs