Citation Nr: 18142299 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-41 527A DATE: October 15, 2018 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam War era, therefore exposure to Agent Orange is conceded. 2. The Veteran died in April 2004. 3. The Veteran's certificate of death lists the immediate cause of death as disseminated intravascular coagulopathy due to esophageal cancer. No contributing cause of death was listed. 4. Service connection was not in effect for any disabilities at the time of the Veteran’s death. 5. The Veteran's disseminated intravascular coagulopathy and esophageal cancer did not manifest during active service, within the one year presumptive period, or for many years thereafter, and are not otherwise related to active service. 6. The preponderance of the evidence is against finding that the Veteran’s atherosclerotic heart disease caused or contributed substantially and materially to the Veteran's death. 7. The Veteran's death was not due to a service-connected disability and/or otherwise attributable to his military service. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death are not met. 38 U.S.C. §§ 1110, 1112, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1964 to February 1966, with service in Vietnam. He died in April 2004. His surviving spouse is the appellant in this matter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA). 1. Entitlement to service connection for the cause of death is denied. The Appellant seeks service connection for the cause of death. She claims that the Veteran’s cause of death was cancer, heart disease, and pancreatitis due to exposure to Agent Orange (AO) in Vietnam. In order 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 was the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). A contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations generally applicable to compensation for service-connected disability apply. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Malignant tumor is listed as a chronic disease in the statute and regulation, and the Board will therefore consider the provisions of 38 C.F.R. § 3.303 (b) in this regard. Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, navel, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, 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 service. 38 U.S.C. § 1116 (f). Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). The availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). After a full review of the record, including the medical evidence, as well as statements by the appellant, the Board finds that service connection for the cause of the Veteran's death must be denied. In this case, the Veteran died in April 2004. The Veteran's death certificate showed disseminated intravascular coagulopathy due to esophageal cancer as the primary cause of death. No secondary causes were indicated. Moreover, service connection was not in effect for any disorder. The appellant's claim for service connection for the cause of the Veteran's death is primarily based on a claim of herbicide exposure during the Veteran's service in Vietnam. Indeed, the appellant believes that Agent Orange exposure led to her husband developing esophageal cancer. The record shows the Veteran served in Vietnam from February 1964 to February 1966 during the presumptive time period and as such, Agent Orange exposure is not conceded. However, esophageal cancer is not a disease listed as part of the presumption under 38 C.F.R. § 3.309(e). Moreover, there is no evidence that esophageal cancer developed within a year form service. Therefore, service connection cannot be presumed for this disability. However, as noted, the unavailability of the presumptive basis does not preclude consideration of direct service connection. In this regard, the Board notes that service treatment records are completely silent for any complaints of or treatment for any symptomatology related to the esophagus. Moreover, a January 2012 VA examiner noted that “esophageal cancer is not one of the identified types of cancers thought to occur secondary to AO exposure.” The Veteran “was at increased risk of adenocarcinoma of the esophagus based on his demographic status of being a middle aged [sic] male with Barrett’s esophagus. Thus, it is less likely than not that the condition esophageal cancer with associated DIC was significantly associated with prior exposure to AO in the 1960s.” The Board finds that this opinion has significant probative value as the opinion was based on a review of the relevant treatment records and contentions of the Appellant. The conclusion is fully explained and consistent with the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This opinion stands uncontradicted by any other competent evidence of record. As such, the Board places great probative weight on the opinion. The Board recognizes that the appellant also contends that the Veteran’s cause of death was coronary heart disease (CAD) due to AO exposure. In this regard, the January 2012 VA examiner opined that the disseminated intravascular coagulopathy and CAD are very different in etiology, presentation and sequela and the medical literature does not support any significant link between the two. Therefore, the examiner concluded that it is less likely than not that CAD significantly contributed to the Veteran’s death. noted that CAD was not listed on the Veteran’s death certificate as a contributing factor and it is less likely than not that CAD significantly contributed to his death. The Board finds the opinion to be adequate for appellate review and accords it great probative weight. Moreover, the death certificate does not list CAD as a cause or contributory cause of death. The Board finds this to be a finding that CAD did not contribute to the Veteran’s death. Regarding pancreatitis, this is not a condition subject to presumptive service connection due to Agent Orange exposure and the record is otherwise devoid of any competent evidence of a link between Agent Orange exposure and pancreatitis. Further, pancreatitis is not listed in the death certificate as a primary or contributory cause of death. The Board has considered the Appellant's contention that a relationship exists between the Veteran's cause of death and his service. However, this case at hand is not the type of situation discussed in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) and a number of other related cases holding that lay evidence may be sufficient to establish this required nexus (i.e., link) between the Veteran's military service and his disability and/or death. See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2). Although the Appellant is competent to report her observations on the Veteran's medical symptoms and discomfort during his lifetime, she is not competent to render a medical opinion addressing the etiology of his conditions, without evidence showing that she has medical training or expertise. See 38 C.F.R. § 3.159 (a)(1), (2); See also Jandreau at 1377 (Fed. Cir. 2007). She does not meet any of the three exceptions for competent lay evidence as listed under Jandreau. As the conditions which caused or contributed to the Veteran's death were not shown in service, and the record contains no indication of a possible link between his death and active military service, the Board finds that the preponderance of the evidence is against the Appellant's claim for service connection for the cause of the Veteran's death. The Board recognizes the Veteran's honorable service, and sympathizes with the Appellant's contentions; however, the Board finds that the Veteran's death was unrelated to service to include a service-connected disability or herbicide (Agent Orange) exposure. In light of the above, the Board finds that the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt doctrine does not apply and the claim is denied. 38 U.S.C. § 5107 (b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel