Citation Nr: 18143816 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-15 894 DATE: October 22, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. At the time of the Veteran’s death he was not service connected for any disorder. 2. The Veteran served in the Republic of Vietnam, hence, he is presumed to have been exposed to herbicides to include Agent Orange. 3. The preponderance of the evidence is against finding that the cause of the Veteran’s death was due to a malignant fibrous histiocytoma, also known as a pleomorphic undifferentiated sarcoma. 4. The cause of the Veteran’s death was sepsis due to a consequence of a chondrosarcoma, was not shown in service, did not manifest to a compensable degree within one year of service separation from active duty, is not otherwise related to service. CONCLUSION OF LAW The cause of the Veteran’s death was not due to a disease or injury incurred or aggravated inservice. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to December 1970. He died in July 1991. The appellant is his surviving spouse. The appellant contends that the Veteran’s death was related to his active-duty service and that she is therefore entitled to service connected cause of death benefits. The appellant argues that the Veteran suffered a pleomorphic sarcoma as a result of exposure to Agent Orange during service in Vietnam, and that this disorder led to his chondrosarcoma which contributed to his death. To warrant service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal 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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection for a malignant tumor may be established on a presumptive basis if the disorder was manifested to a compensable degree within one year following discharge from active duty. 38 C.F.R §§ 3.307, 3.309(a). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain designated herbicide agents during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Service connection based on exposure to the designated herbicide agents will be presumed for certain specified diseases, including certain soft-tissue sarcomas. The term soft-tissue sarcoma for the purposes of 38 C.F.R. § 3.309 (e) includes a malignant fibrous histiocytoma, also known as a pleomorphic undifferentiated sarcoma. The term specifically excludes osteosarcomas, chondrosarcomas, Kaposi’s sarcomas and mesothelioma. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309. Based on a complete review of the record, the Board finds that while a chondrosarcoma was a contributing cause of the Veteran’s death, that disorder was not shown in service, did not manifest to a compensable degree within one year of separation from active duty, and it is not otherwise related to service. As such, entitlement to service connection for the cause of the Veteran’s death is denied. The Veteran died in July 1991. The death certificate noted a cause of death of sepsis, due to or as a consequence of metastatic chondrosarcoma. At the time of his death the Veteran was not service connected for any disorder. The Veteran’s January 1970 separation examination reflected a normal clinical evaluation and he reported good health. The earliest medical evidence of a diagnosis of chondrosarcoma is a December 1976 private medical record which reported complaints of a painful mass at the tip of the rib on the right lower chest three years prior to admission. Two years prior to admission in March 1974, the Veteran was noted to have undergone excisional biopsy which was reported as benign. At a 1976 appointment, the Veteran noted more lumps which were growing rapidly. The diagnosis at that time was pleomorphic sarcoma of the chest wall. Significantly, a subsequent December 1976 private nuclear medicine laboratory report noted that a bone scan revealed findings “compatible with … a working diagnosis of chondrosarcoma.” This evidence indicates that the first reported symptoms of chondrosarcoma may have begun as early as three years prior to the December 1976 admission, or approximately three years following his discharge from active duty. There is no competent medical evidence that the Veteran’s chondrosarcoma began in service, or manifested to a compensable degree within one year thereafter. Hence, this evidence preponderates against finding that chondrosarcoma was either shown in service, or manifested to a compensable degree within one year of separation from active duty. Given the fact that the Veteran served in the Republic of Vietnam the Board turns to the question of whether chondrosarcoma was related to his presumed exposure to Agent Orange. However, as noted previously, chondrosarcomas are specifically excluded from the list of diseases presumptively service connected based on Agent Orange exposure. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309. A December 2015 VA examiner opined that “chondrosarcoma was less likely as not caused by [the Veteran’s] exposure to herbicides during his service in Vietnam.” The examiner reasoned that “Agent Orange, or its components, are not listed as causes of chondrosarcoma by The National Institutes of Health” and that “the medical literature does not show an associated risk of developing chondrosarcoma with exposure to Agent Orange.” No medical evidence of record contradicts this opinion. To the extent that the appellant believes the Veteran’s chondrosarcoma is directly related to his in-service Agent Orange exposure, they not competent to provide a nexus opinion in this case, as this issue is medically complex and requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board therefore attributes greater probative value to the competent medical opinion of the December 2015 VA examiner. Thus, based on the foregoing evidence, the preponderance of the evidence is against finding that chondrosarcoma was directly related to in-service Agent Orange exposure. The primary argument advanced by the appellant is that the chondrosarcoma was caused by pleomorphic sarcoma. In this regard, the Board acknowledges that a pleomorphic sarcoma, also known as a malignant fibrous histiocytoma, is a disorder that is presumptively service-connected based on Agent Orange exposure. 38 C.F.R. § 3.309. However, the December 2015 VA examiner opined that it was less likely than not that the Veteran, in fact, had ever had a pleomorphic sarcoma. The examiner noted that early medical records provided apparently conflicting diagnoses of pleomorphic sarcoma and chondrosarcoma, but more recent records from 1991 diagnosed only chondrosarcoma. The examiner reasoned that it was “apparent that with new technology, such as immunohistochemistry and possibly chromosome testing, that the tumor was ultimately diagnosed as chondrosarcoma.” Even to the extent that the Veteran did have a pleomorphic sarcoma, the December 2015 VA examiner opined that the chondrosarcoma was less likely than not related to any such disorder. The examiner reasoned that “chondrosarcoma is a tumor of the cartilage and bone, not of soft tissue” and “it has a unique and distinct genetic composition, with mutations in (isocitrate dehydrogenases 1) or (isocitrate dehydrogenases 2)” that “differs from the tumors listed in 38 C.F.R. 3.309(e)” (i.e., pleomorphic sarcoma). While the appellant and her son believe the Veteran had a pleomorphic sarcoma, and that his chondrosarcoma was etiologically related to that disorder, they are not competent to diagnose pleomorphic sarcoma or offer a nexus opinion in this case, as this issue is medically complex and requires specialized medical education. Jandreau, 492 F.3d at 1377 n.4. The Board assigns the greatest probative value to the competent medical opinion of the December 2015 VA examiner that the Veteran did not have a pleomorphic sarcoma, and that a chondrosarcoma was not caused or aggravated by any pleomorphic sarcoma. Finally, it is worth observing that there is no medical evidence that shows that the cause of this Veteran’s death was a pleomorphic sarcoma. Rather, the medical evidence only implicates sepsis due to a chondrosarcoma as the cause of his death. The Board acknowledges the aforementioned 1976 private medical records diagnosing the Veteran with a pleomorphic sarcoma. The Board assigns, however, greater probative value to the December 2015 VA examiner’s opinion as to the Veteran’s true diagnosis, as it was based on a complete review of the medical evidence, and on contemporary medical knowledge. The Board acknowledges the medical literature provided by the appellant in support of her claim, however, there is no competent medical opinion evidence linking this literature to the cause of the appellant’s death. While a medical article or treatise “can provide important support when combined with an opinion of a medical professional” such a medical article or treatise evidence must discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). Thus, the preponderance of the most probative evidence is against finding that either a chondrosarcoma or a pleomorphic sarcoma was related to service. As such, no service-connected disorder is shown to be either a principal or a contributory cause of the Veteran’s death. Accordingly, for the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for the cause of the Veteran’s death. The benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The claim is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel