Citation Nr: 1753824	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  13-15 238	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania


THE ISSUE

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


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

S. Mussey, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 1966 to February 1967. The Veteran died in March 2007. The Appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (PMC) in Philadelphia, Pennsylvania.

By way of history, the Veteran filed a claim for service connection for diabetes mellitus in January 2007. After the Veteran died, the Appellant subsequently filed an Application for Dependency and Indemnity Compensation (DIC), Death Pension, and Accrued Benefits by a Surviving Spouse or Child (VA Form 21-534) in May 2007. A rating decision in November 2007 from the New York Regional Office (RO) denied both service connection for diabetes mellitus for accrued purposes and service connection for the cause of the Veteran's death. The Appellant filed a notice of disagreement and a Statement of the Case was generated. A VA Form 9 is not of record.

Concerning the current appeal, in September 2010 the Appellant moved to reopen her claim for service connection for the cause of the Veteran's death. The Appellant also sought to reopen the claim for diabetes mellitus for accrued purposes and to establish service connection for ischemic heart disease, irregular heartbeat, hypertension, and depression. The claim for diabetes mellitus for accrued purposes was untimely because the Veteran passed away more than a year prior to September 2010. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). 

Regarding the claims for service connection for ischemic heart disease, irregular heartbeat, hypertension, and depression, these claims had not been filed by the Veteran prior to his death. For a surviving spouse to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). "[A] pending claim" is defined as "an application, formal or informal, which has not been finally adjudicated." 38 C.F.R. § 3.160(c). The Board finds that the Appellant is not entitled to accrued benefits for these disabilities because there is no indication in the record that the Veteran had any pending claims for VA benefits for these disabilities. Accordingly, given that the law is dispositive and that the pertinent facts in the record are not in dispute, the Appellant's claim for accrued benefits for ischemic heart disease, irregular heartbeat, hypertension, and depression must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

In April 2015, the Board found new and material evidence had been submitted and remanded the claim for further development to obtain medical records and VA medical opinions. In June 2017, the Board again remanded the claim for further development to obtain a VA medical opinion. That development having been completed, the case has returned to the Board for appellate review.

The lone issue before the Board is entitlement to service connection for the cause of the Veteran's death.


FINDINGS OF FACT

1. The Veteran died in March 2007. The Veteran's death certificate lists his immediate cause of death as cardiopulmonary arrest due to or as a consequence of hepatocellular cancer. The death certificate also lists end stage liver cirrhosis as a significant condition contributing to death, but not related to the caused stated above.

2. Service connection had not previously been established for any disability.

3. The Veteran had service on the landmass of Vietnam during the Vietnam era and is presumed to have been exposed to an herbicide agent.

4. The record fails to demonstrate competent evidence that the Veteran was diagnosed with a psychiatric disorder or a cardiac disability.

5. The record fails to demonstrate competent evidence that the Veteran's diabetes mellitus caused or aggravated the Veteran's hepatocellular cancer or liver cirrhosis.

6. The record fails to demonstrate competent evidence that the Veteran's liver cancer or liver cirrhosis manifested during active service or within one year of service separation, or are related to any in-service disease, injury, or event.

7. Direct service connection is precluded for disability due to alcohol abuse.


CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 1310, 1312, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Analysis

The Appellant seeks service connection for the cause of the Veteran's death. During the Veteran's lifetime, service connection was not established for any disabilities. According to the Veteran's death certificate, the cause of his death was cardiopulmonary arrest due to or as a consequence of hepatocellular cancer. The death certificate also lists end stage liver cirrhosis as a significant condition contributing to death, but not related to the cause stated above. For the following reasons, service connection for the cause of the Veteran's death is not established.

When a Veteran dies of a service-connected disability, the Veteran's surviving spouse is eligible for DIC benefits for the cause of death. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially and materially to the Veteran's death. 38 C.F.R. § 3.312. Entitlement to DIC benefits for the cause of the Veteran's death may be established by showing that a disability for which service connection has already been granted was the principal or a contributory cause of death. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Otherwise, the claimant must first establish service connection for a disability shown to have caused or contributed to the Veteran's death. Hupp, 21 Vet. App. at 352 (observing that where service connection has not been previously established, the DIC claimant must first establish service connection for the cause of the Veteran's death). Because the Veteran did not have a service-connected disability at the time of his death, the Appellant is not entitled to DIC benefits.

Service connection means that a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a).

For the chronic diseases listed in 38 C.F.R. § 3.309(a), including diabetes mellitus, if the chronic disease manifested in service, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in 38 U.S.C. § 1101 § 3.309(a)). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. Id.; Walker, 708 F.3d at 1338-39.

In addition, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for certain diseases, such as cirrhosis of the liver, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). 

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the of the nonservice-connected disease, will be service-connected. § 3.310(b). Secondary service connection under § 3.310 entails "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Accordingly, in order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.

VA will not find that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4 ) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id.

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Turning to the evidence of record, the July 2017 VA psychological opinion and August 2017 VA medical opinion represent the informed, objective conclusions of medical professionals and are supported by specific explanations based on the Veteran's medical history and application of medical principles. See July, August 2017 VA opinions. The opinions constitute probative evidence weighing against a diagnosis of a psychiatric disorder and cardiac disability and any link between the causes of the Veteran's death and his active duty service.

The examiner who provided the August 2017 VA opinion stated that the Veteran was diagnosed with liver cirrhosis in 1997, secondary to alcohol abuse. The Veteran was later diagnosed with advanced hepatocellular carcinoma in 2007. While the Veteran's death certificate states the Veteran's immediate cause of death was cardiopulmonary arrest, the examiner noted that the Veteran did not have a cardiac disability prior to his death. The examiner opined that the Veteran went into cardiopulmonary arrest due to "multi-system failure secondary to his advanced hepatocellular carcinoma."

In the August 2017 VA opinion, the examiner ruled out a link between a cardiac disability, the Veteran's active duty service, and the cause of his death. Objective testing prior to the Veteran's death failed to reveal any chest disabilities. The examiner concluded that the Veteran did not have a cardiac disability prior to his death and did not have a diagnosis of ischemic heart disease or congestive heart failure.

The examiner did not find a link between the Veteran's liver cancer and his active duty service. Liver cancer did not manifest during active service or to a compensable degree within one year of active service, as it was not diagnosed until 2006. Additionally, the opinion noted that the Veteran's liver cancer not otherwise etiologically-related to his active duty service and not an Agent Orange presumptive condition. See 38 C.F.R. 3.309(e). The examiner found the Veteran's liver cancer to be caused by his liver cirrhosis.

The examiner did not find a link between the Veteran's liver cirrhosis and his active duty service. The examiner stated that it was less likely than not that the Veteran's liver cirrhosis manifested during active duty service as service treatment records were reviewed and did not show a diagnosis or symptoms of liver cirrhosis. Because the Veteran's liver cirrhosis was diagnosed in 1997, based on the medical records available, it did not manifest to a compensable degree within one year of active service that ended in 1967. Also, the examiner found the Veteran's liver cirrhosis to be not otherwise etiologically-related to his active duty service and not an Agent Orange presumptive condition. See 38 C.F.R. 3.309(e). The examiner found the Veteran's liver cirrhosis was secondary to his alcohol consumption, which is not a service-connected disability.

The examiner did not find that the Veteran's hepatocellular carcinoma or liver cirrhosis were caused or aggravated by his diabetes. The examiner found that the Veteran's hepatocellular carcinoma was caused by his liver cirrhosis and his liver cirrhosis caused by his alcohol abuse. There is no competent medical evidence that links hepatocellular carcinoma or liver cirrhosis to the Veteran's active duty service and consequently to the cause of the Veteran's death.

In the July 2017 VA psychological opinion, the examiner opined that it is less likely than not that the Veteran had a psychiatric disorder. The examiner noted that the Veteran was treated for alcohol use problems, but did not locate a diagnosis of PTSD or depression from a medical provider. The August 2017 VA opinion noted that the Veteran's liver cancer was not caused or aggravated by alcohol abuse, but that it was at least as likely as not that the Veteran's liver cirrhosis was caused by alcohol abuse. The examiner in the July 2017 VA opinion noted that the medical records reviewed did not suggest the Veteran's alcohol habits were related to depression, PTSD, or any other psychiatric disorder. As such, there is no competent medical evidence that a psychiatric disorder caused or aggravated an alcohol or drug use disorder, which in turn caused the Veteran's death.

The Appellant made numerous statements through correspondence sent to VA that the Veteran had certain disabilities and disorders linked to his active duty service that caused his death. In a July 2011 letter, the Appellant stated that the Veteran started to use alcohol to deal with the stress of war, that he probably had PTSD, and that diabetes can cause liver disease and a person at high risk for heart disease. In January 2009, the Appellant provided that the Veteran had PTSD, experienced nightmares, and was aggressive during confrontations. In September 2011, the Appellant stated that the Veteran was exposed to Agent Orange while in Vietnam. The Appellant, in January 2013, stated that the Army enabled the Veteran to drink alcohol while in Vietnam, that the Veteran was depressed, experienced nightmares, and that diabetes triples the risk of liver cancer. In a May 2013 VA Form 9, the Appellant advised that the Veteran had been diagnosed with diabetes, hypertension, suffered from depression and PTSD, and that the complications that caused his death were connected to his active duty service.

In March 2014, the Appellant stated that the Veteran had heart disease and diabetes, which are both connected with Agent Orange exposure and that the Veteran had PTSD and depression after returning from Vietnam. In August 2014, the Appellant provided the Veteran had heart disease and diabetes, that diabetes is associated with exposure to Agent Orange, that the Veteran suffered from depression and PTSD and had flashbacks, but was never diagnosed with a psychiatric disorder. In July 2016, the Appellant stated the Veteran's alcohol abuse problem started in Vietnam.

While the Board has carefully considered the opinions of the Appellant concerning the diagnosis of the Veteran's disabilities and their relationship to his active duty service, unfortunately, these statements are not found to be competent evidence and thus lack probative value. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). In this regard, lay testimony is competent as to matters capable of lay observation or within a person's first-hand experience, and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. See Jandreau, 492 F. at 1376-77; Barr, 21 Vet. App. at 309.

The determination of the cause of the death of the Veteran is medically complex and cannot be made based on lay observation alone given that there is no apparent cause-and-effect relationship that can be readily observed through the senses. Such requires an understanding of how the diagnosed pathology develops over time and under what circumstances it may be related to injury incurred one or more years before such pathology develops or is diagnosed. This understanding is not a matter of lay observation given the medical complexity involved. Therefore, competent medical evidence is required. See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309; Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). 

Accordingly, because the record does not indicate the Appellant is qualified to opine concerning complex principles in the field of medicine, her unsupported opinion is not competent evidence on the issue of the cause of the Veteran's death, and thus lacks probative value. See Layno, 6 Vet. App. at 470-71. Moreover, irrespective of whether the Appellant's opinion constitutes competent evidence, the VA medical opinions carry more weight than her lay opinion given the medical expertise of the former and the reasoning provided in support of the opinions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

The Appellant provided VA with medical articles to support her claim, including in April 2007, August 2007, November 2007, June 2008, July 2011, September 2012, October 2012, and May 2013. The articles speak to the general issues of increased risk factors to additional complications for those with diabetes, liver cirrhosis, liver cancer, heart disease and other disabilities. The medical articles were made part of the claims file. The July and August 2017 VA opinions both noted a review of the claims file prior to providing their opinions. After that review, the VA examiner and examiner specifically ruled out a link between potentially service-connected disabilities and the Veteran's death.

In sum, the preponderance of the evidence weighs against service connection for the conditions causing or contributing to the Veteran's death. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for the cause of the Veteran's death is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 55. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision for the Appellant in this matter.



ORDER

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



____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs