Citation Nr: 1805452 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 10-62 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD I. M. Hitchcock, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Army from January 1974 to January 1976. He died in December 2008. The appellant is claiming as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2012, the Board remanded this claim for additional development. The matter was again remanded in August 2016. All requested development was conducted and the claim has been returned to the Board for further consideration. FINDINGS OF FACT 1. The Veteran died in December 2008. The Certificate of Death lists the immediate cause of death as metastatic cancer of an unknown primary origin and schwannomas of the spinal cord and neurofibromas. 2. The Veteran had service-connection tinnitus at the time of his death. 3. The disabilities that caused the Veteran's death were not manifested during the Veteran's service, nor were they otherwise related to the Veteran's active duty service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking service connection for the cause of the Veteran's death. The Veteran passed away in December 2008. The appellant has contended that the Veteran's death was a consequence of exposure to chemicals during service. Specifically, the Veteran had neurofibromas and schwannomas that contributed materially to his death and were the result of his exposure to herbicides and dioxins while stationed in Korea. Service connection for the cause of the Veteran's death may be granted if a disability incurred in or aggravated by service was either the principle or a contributory cause of the Veteran's death. 38 C.F.R. § 3.312(a) (2017). For a service-connected disability to be the principle cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially, and also combined to cause death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312(c)(1). 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; 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. "Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death." 38 C.F.R. § 3.312(c)(3). Generally, minor service-connected disabilities, particularly those of a static nature, or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). "There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In such a situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature." 38 C.F.R. § 3.312(c)(4). The Certificate of Death shows that the immediate cause of death was metastatic cancer of an unknown primary origin, and that schwannomas of the spinal cord and neurofibromas (for which there were surgeries) were significant conditions contributing to the Veteran's death, but not resulting in the underlying cause. At the time of his death, service connection had only been established for tinnitus. As noted in the August 2016 remand, the Board notes that, while the appellant has asserted that the Veteran was exposed to herbicides during his service in Korea, the presumption of herbicide exposure does not apply in this case. Indeed, while the Veteran's service personnel records (SPRs) confirm that he served in Korea from January 1975 to January 1976, his service does not trigger the application of the presumptions of exposure to herbicides, as the presumption only applies to veterans who served in Korea from April 1, 1968 to August 31, 1971 or in Vietnam from January 9, 1962 to May 7, 1975 for Vietnam. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iv). There is also no credible evidence showing that the Veteran was directly exposed to herbicides during his service. The appellant believes that an April 2008 email from M.B., his unit's historian, confirms Agent Orange exposure. However, the email only confirms that men handled Agent Orange on an aircraft and while in Vietnam. As noted, there is no evidence showing that the Veteran served in Vietnam at any point during his service. Moreover, in June 2007, the National Personnel Records Center (NPRC) noted that there were no records of the Veteran's exposure to herbicides. The Veteran reported that his tumors began in 1977, which is one year after he was discharged from active service. However, no records from 1977 are in the file. There is a record from May 1992 finding that the Veteran has neurofibromatosis, but that the type and etiology is unclear. The note contains a reference to a procedure in 1978 when the Veteran had neurilemma (the thin sheath around a nerve axon) removed from his thoracic spine. However, these records do not relate his disabilities with any specific etiology. In February 2008, Dr. L. gave the following opinion: "Patients with multiple schwannomas only rarely have a family history of the same. His family history is negative. There is data suggesting an association of schwannoma with Agent Orange or dioxin." A similar opinion was submitted in June 2008 clarifying that he could find no other risk factors that would contribute to his condition. After considering the totality of the medical evidence outlined above, the Board finds that the preponderance of the evidence demonstrates that the disabilities that caused the Veteran's death, metastatic cancer of an unknown primary origin, were not related to military service. There is no evidence of any of these disorders in service. Significantly, there is no medical evidence that these disorders manifested to a compensable degree within one year of the Veteran's discharge so the service incurrence of such may not be presumed. Moreover, there is no competent lay or medical evidence linking these disorders to service. In this regard, there is no probative evidence that the Veteran was exposed to dioxins or Agent Orange. The opinion of Dr. L. states that the Veteran's disabilities were caused by exposure to Agent Orange or dioxin. As there is no probative evidence that the Veteran was in fact exposed, Dr. L's opinion is given little probative weight. The Board recognizes that the appellant believes that the Veteran died as a result of his service. However, the record does not reflect that the appellant has the necessary training or expertise to relate the cause of the Veteran's death to service. A layperson is generally not capable of opining on matters requiring medical knowledge. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In sum, the appellant's opinion as to cause of death is of little probative value and is outweighed by medical evidence of record. While the Board sympathizes with the appellant's loss, it must conclude that a preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death as there is no persuasive evidence linking the Veteran's cause of death to any injury or disease during service. As the preponderance of the evidence weighs against the claim, the doctrine of benefit of the doubt does not apply. See 38 U.S.C. § 5107(b). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs