Citation Nr: 1756971	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  11-24 629	)	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:	The American Legion


ATTORNEY FOR THE BOARD

R. E. Jones, Counsel



INTRODUCTION

The Veteran served on active duty from August 1968 to August 1970.  He served in Vietnam.  He died in March 2002.  The appellant claims as the Veteran's widow.

This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a May 2010 rating decision of the VA Regional Office (RO) in Columbia, South Carolina.

The case was remanded by Board decision in October 2015 and again in July 2016.  VA medical opinions were obtained and there has been substantial compliance with the remand instructions.  Subsequent to an August 2016 VA medical opinion the RO issued a supplemental statement of the case (located in Virtual VA).  The appellant's claim is now ready for Board review.  


FINDINGS OF FACT

1.  The Veteran died in March 2002 due to cardiac arrhythmia. 

2.  At the time of his death, the Veteran did not have service connection in effect for any disability, and the medical evidence of record demonstrates no nexus between the cause of the Veteran's death and his military service.


CONCLUSION OF LAW

A disability incurred in or aggravated by service, to include as due to exposure to herbicide agents, did not cause or contribute substantially or materially to the Veteran's death.  38 U.S.C. §§ 1110, 1116, 1310 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017).    
REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A (2012), and implemented at 38 C.F.R. § 3.159 (2017), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.

The duty to notify has been met.  Neither the appellant nor her representative, has alleged prejudice with regard to notice.  The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  No such arguments have been raised.  In light of the foregoing, nothing more is required.

The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence.  The Veteran's service treatment records (STRs) and private medical records treatment records have been associated with the record.  VA medical opinions have been obtained, the results of which are sufficient to accurately adjudicate the claim.   

In sum, the Board is satisfied that the originating agency properly processed the appellant's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).


II.  Law and Regulations

A surviving spouse of a veteran is entitled to dependency and indemnity compensation if the evidence shows that a service-connected disability either caused or contributed substantially or materially to the cause of death.  38 U.S.C. § 1310; 38 C.F.R. § 3.312.  

In order to be service-connected, a disability must have been incurred in or aggravated by service, or proximately due to a service-connected disability.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017).  

Hypertension and malignant tumors, including kidney cancer, may be presumed under certain circumstances if manifested or aggravated to a compensable degree within a year of a veteran's discharge from service.  38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). 

A 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). 

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(c)(1).

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease becomes manifest to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary.  See 38 C.F.R. § 3.307(a).   
If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including ischemic heart disease, are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service.  See 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e).  The presumption is rebuttable.  See 38 C.F.R. § 3.307(d).

III.  History and Analysis

The Veteran's death certificate indicates that he died in March 2002, of cardiac arrhythmia, due to electolytic imbalance, as a result of a gastrointestinal virus.  The death certificate also reveals that the Veteran died at his residence and that an autopsy was not performed.  At the time of his death, the Veteran did not have service connection in effect for any disability.  

The Veteran's service medical records reveal no complaints, treatment, or diagnoses related to cardiac arrhythmia, electrolyte imbalance or gastrointestinal illness.  The Veteran's post service medical records indicate that a number of years after service he developed hypertension, polycystic kidney disease and kidney cancer. 

The Veteran's claims file contains records from the Medical University of South Carolina showing that he had a kidney transplant in December 1995.  The examiner stated that the Veteran had end-stage renal disease secondary to hypertension and that the Veteran had received hemodialysis for several years.  

The Veteran's STRs and post service medical records were reviewed by a VA physician in January 2016.  The physician noted that the Veteran had normal blood pressure on induction to service and at separation from service.  He further noted that the Veteran checked "no" on his separation Report of Medical History to the question of whether he had ever had high blood pressure.  The VA physician opined that the Veteran's hypertension was not incurred in or aggravated by active duty.  

The VA physician further noted that the Veteran's medical records revealed no mention of coronary artery disease or ischemic heart disease.  He discussed the Veteran's medical history in detail and opined that the Veteran had not had ischemic heart disease.  The physician noted that the Veteran's chronic renal insufficiency was a well-known contributor to the likelihood of dehydration from conditions such as gastrointestinal virus.  He further noted that dehydration is well known to cause electrolyte abnormalities that can cause cardiac arrhythmias resulting in death.  

The Veteran's records were reviewed by another VA physician in August 2016.  This physician opined that the Veteran's polycystic kidney disease was not related to service and was not etiologically related to Agent Orange/herbicide exposure in Vietnam.  He noted that kidney disease was not shown during service or within a year of discharge from service.  He further noted that there was no general medical consensus or medical literature that would provide evidence that Agent Orange/herbicide exposure would predispose for the development of polycystic kidney disease.

The August 2016 VA physician further opined that the Veteran's renal cell carcinoma was unrelated to service.  He went on to opine that the Veteran's renal cell carcinoma was not etiologically related to the Veteran's Agent Orange/herbicide exposure in Vietnam.  

On her August 2011 substantive appeal the appellant asserted that the Veteran's death was due to his exposure to Agent Orange in Vietnam.   

The appellant is not entitled to service connection for the cause of the Veteran's death based on a presumptive basis due to the Veteran's exposure to herbicides in Vietnam.  Kidney cancer, polycystic kidney disease, cardiac arrhythmia, hypertension, electrolyte imbalance and gastrointestinal viruses are not disabilities that VA recognizes as presumptive disabilities related to exposure to herbicide agents.  See 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e).  A claimant may still show that a disability was at least as likely as not caused by herbicide exposure.  See 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Even though kidney cancer and hypertension are considered chronic diseases under 38 C.F.R. § 3.309(a), the appellant is also not entitled to service connection for the cause of the Veteran's death when her claim is considered on a presumptive basis for a chronic disease.  The record does not show that the Veteran developed kidney cancer or hypertension until many years after his discharge from service. 

The appellant is also not entitled to service connection for the cause of the Veteran's death on a direct basis.  The Board has considered the appellant's lay statements asserting that the Veteran's death was due to exposure to herbicides in Vietnam.  However, the Board finds the appellant's lay statements are of no probative value.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's death was related to service, including exposure to herbicides, such falls outside the realm of common knowledge of a lay person as this is beyond the capability of a lay person to observe.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

The most probative evidence of record are the VA physicians' opinions that the Veteran's various medical diseases were unrelated to service and unrelated to his exposure to herbicides in Vietnam.  There is no medical evidence to the contrary.  Here the preponderance of the evidence shows that the Veteran did not have a disease related to service or to herbicide exposure that caused or contributed substantially or materially to the cause of death.  Accordingly, service connection for the cause of the Veteran's death is not warranted.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

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




____________________________________________
KRISTI L. GUNN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs