Citation Nr: 1804615 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 09-32 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to December 1973, to include service in the Republic of Vietnam (Vietnam) during the Vietnam War. He died in May 2008. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction was later transferred to the RO in Atlanta, Georgia. However, jurisdiction has been returned to the RO in San Diego, California. The case was brought before the Board in January 2014, at which time the claim was remanded in order to afford the Appellant a hearing before the Board as she requested. The Appellant had a hearing before the Board in August 2014 and the transcript is of record. In February 2015, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development. When the claim was before the Board in February 2015, it was also noted that the issue of an earlier effective date for death pension benefits was raised by the Appellant in an October 2010 correspondence, but had not been adjudicated by the AOJ. The matter was referred to the AOJ for appropriate action. The Board takes this opportunity to once again refer the matter to the AOJ for appropriate action as it does not appear any action has yet been taken for this issue. FINDINGS OF FACT 1. The Veteran's death certificate shows that he died of cardiac arrest due to hepatitis C and cirrhosis. 2. At the time of his death, service-connection had been established for the Veteran was service-connected for a tear of the right medial meniscus status post medial meniscectomy and traumatic arthritis of the right knee. 3. The objective and competent medical evidence of record weighs against a finding that a disorder incurred in service, to include as due to the Veteran's presumed in-service herbicide exposure, or that the Veteran's service-connected disabilities caused or contributed materially to producing or accelerating the Veteran's death. 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, 1113, 1116, 1310 (2012); 38 C.F.R. §§ 3.300, 3.303, 3.304, 3.307, 3.309, 3.310, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating their claims. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). There has been no allegation or suggestion of any lapse on VA's part in meeting these duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection for the Cause of Death Service connection may be granted for a disorder resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disorder; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disorder and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including cirrhosis of the liver and cardiovascular-renal disease, will be presumed if they manifest to a compensable degree within one year following the active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, a veteran who, during active military, naval, or air service, served in the Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The VA General Counsel has determined that the regulatory definition requires that an individual actually have been present on the land mass of Vietnam. VAOPGCPREC 27-97; 62 Fed. Reg. 63604 (1997). Specifically, General Counsel has concluded that in order to establish qualifying service in Vietnam, a veteran must demonstrate actual duty or visitation in Vietnam. Id. Service in Vietnam is interpreted as requiring service on the landmass of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and sub-acute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases include, in pertinent part, ischemic heart disease. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102 (2017). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In cases of service connection for the cause of the death of the veteran, the first requirement of a current disorder will always have been met - i.e., the current disorder being the disorder that caused the veteran to die. However, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). To grant service connection for the cause of the veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered 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. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, 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). Medical evidence is required to establish a causal connection between service or a disability of service origin and the veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). The Veteran died in May 2008 and his death certificate indicates cardiac arrest was the immediate cause of death, with cirrhosis of the liver and hepatitis C noted as underlying causes of death. At the time of his death, the Veteran was only service-connected for right knee disabilities. In this regard, there is no evidence in the claims file to support that the Veteran's service-connected disabilities caused his death or substantially or materially contributed to his death. The Veteran's service-connected disabilities were not the Veteran's primary or contributory cause of death. The evidence of record also does not show that the debilitating effects of the service-connected disabilities made the Veteran materially less capable of resisting the fatal disorders, or had a material influence in accelerating death. In March 2016, VA obtained a VA medical opinion regarding the relationship between the Veteran's service and his death. The VA examiner indicated that he reviewed the Veteran's claims file. The examiner also opined that it was not at least as likely as not that the Veteran's cirrhosis of the liver was caused or aggravated by his service-connected right knee disabilities, in light of the Appellant's testimony that the Veteran drank alcohol heavily to self-medicate his right leg pain. The examiner explained that there was no objective evidence in the medical record to support the assertion that the Veteran's cirrhosis of the liver was caused or aggravated by the service-connected right knee disabilities. There are no other medical opinions of record concerning the Veteran's service-connected disabilities and his death. Thus, the Board concludes that the probative evidence of record does not show that the service-connected disabilities either caused or contributed substantially or materially to the Veteran's death. Turning to the next theory of entitlement, the military records indicate the Veteran was awarded, among other things, a Vietnam Service Medal and a Combat Action Ribbon. As stated by the Board in its prior remand, the Veteran is presumed to have been exposed to herbicide agents from his service in Vietnam during his active military service. In March 2016, the VA examiner, following a review of the claims file, opined that it was not at least as likely as not that the Veteran had ischemic heart disease during his lifetime. The examiner explained that there was no supporting objective evidence in the medical records to support a diagnosis of ischemic heart disease. Based on the aforementioned medical evidence, the Veteran did not have ischemic heart disease during his lifetime or at the time of his death. There is no evidence to the contrary in the claims file. Accordingly, he is not entitled to the herbicide presumption as he did not have a diagnosis of ischemic heart disease. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Cardiac arrest, hepatitis C, and cirrhosis are not diseases presumed to have been incurred from herbicide agents exposure. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). VA has determined there is no positive association between exposure to herbicide agents and any other disorder for which the VA Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630-27641 (2003); see also Notice, 75 Fed. Reg. 32,540-32,548 (2010). However, the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by demonstrating that the disease was in fact "incurred" during the active military service by proof of direct causation. See Combee, 34 F.3d at 1042. In this regard, the Veteran's service treatment records document complaints of chest pain, suggestive of pericarditis in May 1970, and chest pain with a history of nervousness in June 1970. However, a June 1970 Electrocardiographic Record was within the normal limits. In 1973 a Physical Evaluation Board found that the Veteran had a right medial meniscus tear, medial ligamentous instability of the right knee, and atrophy of the right thigh quadriceps. There were no notations for cardiac arrest, hepatitis C, or cirrhosis. The March 2016 VA examiner, following a review of the Veteran's claims file, opined that it was not at least as likely as not that the Veteran's cause of death was due to any injury, incident, or disease incurred in active military service. His opinion was based upon an extensive review of the record. The Veteran was 57 years old at the time of his death. There was no supporting objective evidence in the medical record or the service treatment records that would support the Appellant's claim. The Veteran died more than 30 years after his separation from active service. There is no positive medical nexus evidence in the claims file that provides a nexus between the Veteran's fatal disorders and his active military service, to include his presumed in-service herbicide agents exposure. The Veteran is also not entitled to presumptive service connection for cirrhosis of the liver or cardiovascular renal disease. These diagnoses were not made within one year of the Veteran's military discharge. The Appellant has not alleged that the Veteran's cirrhosis of the liver or cardiovascular renal disease have been present continuously since his active military service. Thus, the presumption for service connection for chronic diseases does not apply. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). The Appellant also claims that after the Veteran returned home, he was not the same. He drank heavily due to his Vietnam War experiences and right leg pain. She claims his drinking was a way of self-medicating, which ultimately led to his cirrhosis of the liver and his demise. VA treatment records indicate that the Veteran first began treatment for depression many years after service. In January 2007, the Veteran underwent a general psychiatric intake. The Veteran stated that he felt depressed from his medical situation. He indicated that he felt distressed by his falls and inability to do things. The Veteran's VA treatment records are silent regarding treatment for posttraumatic stress disorder (PTSD). In April 2007, the Veteran's PTSD screening was negative. In May 2016, Dr. D.D. wrote that many veterans suffer from PTSD, which can lead to alcohol or substance abuse. The Veteran's alcohol abuse could have caused his cirrhosis of the liver, which contributed to his death. She indicated that it was reasonable to presume that the Veteran was exposed to Agent Orange during the Vietnam War. His exposure could have resulted in ischemic heart disease which could lead to cardiac arrest. The March 2016 VA examiner also opined that it was not at least as likely as not that the Veteran's cirrhosis of the liver was caused or aggravated by his service-connected right knee disabilities in light of the Appellant's testimony that the Veteran drank alcohol heavily to self-medicate his right leg pain. He explained that there was no objective evidence in the medical record to support the assertion that the Veteran's cirrhosis of the liver was caused or aggravated by the service-connected right knee disabilities. The May 2016 letter from Dr. D.D. is inadequate. The opinion ultimately concludes that the Veteran's active service could have contributed to his death. Dr. D.D.'s opinion is speculative because it does not establish that it is at least as likely as not that any disease or injury was incurred during the Veteran's active military service and was the principal or contributory cause of the Veteran's death. The terms "can lead" and "could have" only indicate a possibility that there may have been a relationship. See Obert v. Brown, 5 Vet App. 30, 33 (1993). Accordingly, upon a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that any disease or injury incurred during the Veteran's active military service was the principal or contributory cause of the Veteran's death. No causal connection between the Veteran's military service, to include his presumed in-service herbicide exposure, and his death is demonstrated by the evidence of record. Additionally, the Veteran's service-connected disabilities have not been shown to have caused his death, or substantially or materially contributed to the Veteran's death. The Board is sympathetic to the Appellant in that it is clear she sincerely believes her spouse's death was caused by his active military service. However, the evidence of record does not support this contention. In forming this decision, the Board has considered the Appellant's lay statements. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case (whether a disorder incurred in service caused or contributed materially to producing or accelerating the Veteran's death) falls outside the realm of common knowledge of a layperson. See Jandreau, 492 F.3d at 1377, n.4 (laypersons not competent to diagnose cancer). As a layperson, it is not shown that the Appellant possesses the medical expertise to provide such an opinion, and no opinion is of record. Thus, as previously stated, the medical evidence of record is against the Appellant's claim. As the preponderance of the evidence is against the Appellant's claim of entitlement to service connection for the cause of the Veteran's death, the benefit-of-the doubt rule does not apply. The claim for service connection for the cause of the Veteran's death must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs