Citation Nr: 18145839 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-35 574 DATE: October 30, 2018 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran died in July 2012. The death certificate reflects the immediate cause of death was acute renal failure. Contributing factors were hepatorenal syndrome, end stage renal disease, and alcoholic cirrhosis. 2. At the time of his death, the Veteran was service-connected for tinnitus, bilateral hearing loss, shrapnel injury to left lower extremity, and scar, left lower extremity. 3. A service-connected disability was not the immediate or underlying cause of the Veteran’s death, nor was a service-connected disability related to the cause of the Veteran’s death. 4. The fatal disease processes were not manifest during service and were not attributable to service. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the cause of the Veteran’s death. 38 U.SC. §§ 1110, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to January 1968. 1. Entitlement to service connection for the Veteran's cause of death A Veteran’s death will be considered service-connected where a service-connected disability was either the principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). The claims file shows that the Veteran had no service-connected disabilities at the time of his death. The Veteran died in July 2012. The stated cause of death was acute renal failure. Contributing factors to the cause of death were hepatorenal failure, end stage renal disease, and alcoholic cirrhosis. The appellant has stated that it is her belief that the Veteran’s renal failure was a result of exposure to Agent Orange during his service in Vietnam or to exposure to contaminated water while stationed at Camp Lejeune.   A. Herbicide Exposure A Veteran who, during active 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. The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 If a Veteran was exposed to an herbicide agent during active service, certain diseases, including lung cancer, shall be service-connected if the requirements of 38 C.F.R. § 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 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). The Veteran had confirmed service in Vietnam. Therefore, exposure to herbicide agents is presumed. However, acute renal failure, hepatorenal syndrome, end stage renal disease and alcoholic cirrhosis are not among the diseases listed in 38 C.F.R. § 3.309 (e) as diseases presumed to be due to herbicide agent exposure. Presumptive service connection based on exposure to herbicide agents is not warranted.   B. Exposure to contaminated water at Camp Lejeune The Veteran was stationed at Camp Lejeune from November 1967 to January 1968. Exposure to contaminated water is presumed. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on date. Amended 38 C.F.R. §§ 3.307 and 3.309 establish presumptive service connection for Veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during this period, and who have been diagnosed with any of the following eight diseases: adult leukemia; aplastic anemia and other myelodysplastic syndromes; bladder cancer; kidney cancer; liver cancer; multiple myeloma; non-Hodgkin’s lymphoma; and Parkinson’s disease. In addition, the amendments establish a presumption that these individuals were disabled during the relevant period of service, thus establishing active military service for benefit purposes. This amendment implements a decision by the Secretary of Veterans Affairs that service connection on a presumptive basis is warranted for claimants who served at Camp Lejeune and later develop the certain diseases listed above. As such, the Veteran’s acute renal failure is not presumed to be related to his exposure to contaminated water at Camp Lejeune during her service. However, the absence of a disease from the presumptive list does not preclude a veteran from otherwise proving that her disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the Board will still consider whether entitlement to service connection can be granted on a direct basis or under the presumption for chronic diseases. C. Direct Service Connection Generally, to establish service connection the appellant must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The issue for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to service. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s cause of death or contributing factors began during active service, or were otherwise related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are silent for complaints or notes of any renal or liver disease. Upon examination at separation, the Veteran’s genitourinary system was normal. Here, chronic disease was not noted during service and he did not have characteristic manifestations of the processes during service or within one year of separation. The first notation of liver disease in the Veteran’s medical records is in May 2010. A treatment note from July 2012 states that the Veteran was in end stage alcoholic cirrhosis. A medical opinion regarding the etiology of the Veteran’s acute renal failure was obtained in June 2016. The physician opined that the Veteran’s cause of death was “not in any way” related to his service at Camp Lejeune. The stated supporting rationale was that the Veteran was exposed to contaminated water for one quarter of a year, and there was no indication of chronic renal disease for at least the next 42 years. Further, the Veteran had a number of risk factors for end stage renal disease, including hypertension, long history of excessive alcohol intake, gender, and age. The physician also noted that there is no literature that supports end stage renal disease developing from solvent exposure 42 years after the last exposure. The preponderance of the evidence weighs against a finding that the Veteran’s cause of death was related to his active service. There is no indication of liver or renal disease while in service. The opinion from the June 2016 VA examiner indicates that the Veteran’s end stage renal disease and ensuing acute renal failure were wholly unrelated to his exposure to contaminated water at Camp Lejeune. There is no evidence to suggest a link between the Veteran’s herbicide agent exposure and liver or renal disease. Presumptive service connection is not warranted on the basis of either exposure to herbicide agents or to contaminated water at Camp Lejeune, as hepatorenal syndrome and renal failure are not exposure type presumptive diseases. The Board notes that one of the contributing diseases listed on the Veteran’s death certificate is alcoholic cirrhosis. Cirrhosis of the liver may be presumptively service-connected as a chronic disease is manifested in service or within one year of separation. However, as noted above, there was no indication of liver disease while in service, and the first notation of liver disease was in May 2010, 42 years after the Veteran left active duty. Therefore, service connection is not warranted. The record establishes that the Veteran was service connected for tinnitus, hearing loss disability and left lower extremity shrapnel injury. There is no competent evidence that a service connected disability caused or contributed to the remote fatal disease processes. Here, the record establishes that the Veteran served his country, to include in times of war. However, the fatal disease processes were not manifest during service or within one year of separation and are not attributable to Agent Orange exposure or exposure at Camp Lejeune. The cause of death was unrelated to service and unrelated to service connected disability. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel