Citation Nr: 18143047 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-24 377 DATE: October 17, 2018 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of death of a veteran is denied. FINDING OF FACT The cause of the Veteran’s death is not related to service. CONCLUSION OF LAW The criteria for DIC based on service connection for the cause of death of a veteran have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1310, 1312, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the surviving spouse of a veteran (the Veteran) who had active duty service from July 1968 to April 1972. The Veteran died in April 2012. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. DIC based on service connection for the cause of death of a veteran. DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish a service-connected cause of death, it must be shown that a service-connected disability either caused death or substantially or materially contributed to cause death. 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 active service, or one which was proximately due to or the result of, or aggravated by, a service-connected disability. Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a),(b); Wallin v. West, 11 Vet. App. 509, 512 (1998). A veteran who, during active military, naval, 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 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 the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. AL amyloidosis, 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, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The herbicide-presumptive diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. 3.307 (a)(6)(ii) The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The 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). 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. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). 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 this 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). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. In this case, the Veteran died in April 2012. The immediate cause of death was cardiorespiratory arrest with immediate onset. Secondary conditions leading up to the immediate cause included a seizure (immediate), which was due to or a consequence of alcohol withdrawal (short term), which was due to or a consequence of alcohol abuse (longstanding). Other significant contributing conditions (not resulting in the immediate cause of death) include lung cancer (Record 08/09/2012). The death certificate indicates that an autopsy was completed; however, attempts to obtain it have been unsuccessful. The appellant did not respond to a request for a copy of the autopsy report. The service treatment records reveal no complaints, findings, or diagnoses pertinent to the causes of death listed on the death certificate. The service separation examination is also pertinently normal. Indeed, to the extent alcohol dependence played any significant role in the Veteran’s death, such cannot be the basis for a grant of service connection, as no compensation shall be paid if a disability is the result of a veteran’s own willful misconduct, including the abuse of alcohol and drugs. See 38 U.S.C. §§ 105, 1110 (West 2014); 38 C.F.R. §§ 3.1(n), 3.301 (2017); see also VAOPGPREC 2-97 (January 16, 1997). The law also precludes compensation for primary alcohol abuse disabilities, and secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). While the law does permit compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability, there are no service-connected disabilities in this case. Of course, the Board acknowledges the potential that the Veteran’s lung cancer could be related to herbicide exposure during his service in Vietnam. The RO obtained an opinion regarding whether the Veteran’s lung cancer (an herbicide-presumptive condition) played a significant causal or contributory role in his death. The March 2013 VA examiner noted that the Veteran had a history of seizure disorder and alcoholism, and that the records state that he had not taken his anti-epileptic medications for about 1 week prior to his death. His death certificate indicates that his seizure at the time of his death was most likely due to alcohol withdrawal. According to the examiner, the Veteran’s seizure disorder long predated his diagnosis of lung cancer, and there is no evidence of any lung cancer metastases to the brain in the available records. Since there is no evidence that the Veteran’s lung cancer was in any way related to the seizure that caused his death, the examiner opined that it is less likely than not that his lung cancer substantially or materially contributed to cause his death, combined to cause death, or aided or lent assistance to the production of death (Record 03/06/2013). The RO obtained another opinion in March 2016. That examiner opined that the Veteran’s residuals of lung cancer (to include any conditions that were secondary to lung cancer) less likely than not (less than 50 percent probability) contributed to the Veteran’s death. The examiner further opined that any treatment for lung cancer, or related conditions, is less likely than not have contributed to the Veteran’s death. The examiner further opined that the Veteran’s lung cancer and related conditions did not cause debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. Finally, the examiner opined that, on thorough review of the service treatment records, there is no diagnosis which would have at least as likely as not contributed to the Veteran’s death. The rationale for these opinions was that the Veteran’s lung cancer (which was in the form of a solitary nodule) was curatively treated in 2010; there was no evidence of recurrence on PET scan in 2011; and, there were no suspicious metastatic findings known 2 weeks before his death. Emergency Department records from the date of death also clearly show the Veteran presented with an alcohol withdrawal syndrome (abdominal pain and seizures) and died soon thereafter from an acute cardiopulmonary arrest. Therefore, despite being listed as a contributing condition on the death certificate, it was the opinion of the examiner that the history of lung cancer had absolutely nothing to do with his death (Record 03/29/2016). After a review of all of the evidence, the Board finds that the cause of the Veteran’s death is not related to service. In so finding, the Board notes that the medical opinion evidence is uncontradicted, and is persuasive in finding against any significant relationship between the Veteran’s lung cancer and the cause of his death, and any relationship between the cause of death and service. In particular, the March 2016 opinion provides a detailed rationale that is consistent with the facts and which is couched in terms of accepted medical principles. The appellant has made no specific allegations as to the inadequacy of the opinion. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). There is no medical opinion that purports to relate the cause of death to the Veteran’s service. The only opinion in this regard comes from the appellant’s lay assertions. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). The Board finds that relating temporally remote diagnoses, such as are listed on the death certificate, to service, to include herbicide exposure in service; and, relating such diagnoses to the Veteran’s lung cancer, is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). Such opinions require specialized medical knowledge, and are not capable of lay observation. Accordingly, the appellant’s lay statements are not competent evidence of an etiologic relationship between the cause of death and service. In sum, the Board finds that neither the principal cause of death nor a contributory cause of death is related to service. In light of this finding, the Board concludes that DIC based on the cause of death of a veteran is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful, and the appellant is sincere in her belief that the Veteran’s death was related to his service. While the Board is sympathetic to the appellant’s contentions, in the final analysis, competent medical opinion, which is well-explained and informed by the record, has been adduced, and does not support her assertions. Simply put, the weight of the competent evidence does not substantiate her contention that the Veteran’s death is related to the Veteran’s service, to include herbicide exposure therein. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp