Citation Nr: 18146753 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 13-18 599 DATE: November 1, 2018 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran’s death certificate indicates that he died in October 1997 with the immediate cause of death listed as anasarca due to or as a consequence of micronodular cirrhosis of the liver and chronic ethanolation. It was also noted that interstitial pancreatic fibrosis was a significant condition contributing to death, but not resulting in the aforementioned underlying causes. 2. During his lifetime, service connection was not in effect for any disability. 3. A disability of service origin did not cause or contribute to the Veteran’s death. 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, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1972 to May 1974. He died in October 1997 and the appellant is the Veteran’s surviving son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the appellant testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2018, the appellant was advised that the Veterans Law Judge who conducted his hearing was no longer employed by the Board and, as such, was offered the opportunity to attend another Board hearing. He was further informed that, if he did not reply within 30 days of the letter, the Board would assume that he did not want another hearing and proceed accordingly. To date, the appellant has not responded and, as such, the Board will proceed with the adjudication of his case. In May 2015, April 2017, and July 2018, the Board remanded the appeal for additional development and it now returns for further appellate review. Entitlement to service connection for the cause of the Veteran’s death. At his September 2014 Board hearing and in documents of record, the appellant contended that the Veteran’s alcohol abuse and resulting cirrhosis of the liver was due to his military service. In this regard, he indicated that, from his understanding, the Veteran began drinking after discharge in order to cope with the issues he had while in the Marine Corps. Additionally, the appellant further contended, through his mother’s statements, that breast cancer and hepatitis C contributed to the cause of the Veteran’s death. The Veteran’s death certificate indicates that he died in October 1997 with the immediate cause of death listed as anasarca due to or as a consequence of micronodular cirrhosis of the liver and chronic ethanolation. It was also noted that interstitial pancreatic fibrosis was a significant condition contributing to death, but not resulting in the aforementioned underlying causes. During his lifetime, service connection was not in effect for any disability. Service connection for the cause of a veteran’s death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of the veteran’s death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially; combined to cause death; aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that it causally 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 diseases or injuries primarily causing death. 38 C.F.R. § 3.312(c)(3). 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 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 a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include cirrhosis of the liver, a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For claims filed after October 31, 1990, service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With regard to the medical evidence of record, the Veteran’s service treatment records are negative for any findings, complaints, or diagnoses referable to his terminal diseases. Further, while post-service treatment records beginning in March 1992 reflect treatment for his terminal and related diseases, such do not suggest that his diagnosed diseases were related to any aspect of his military service. In this regard, VA treatment records revealed diagnoses of cholestatic hepatitis in March 1992, hepatitis C in April 1993, cirrhosis in November 1993, and pancreatitis in August 1994. Additionally, in February 1996, it was noted that the Veteran underwent a right breast mass excision (simple mastectomy) and, in May 1996, a liver-spleen scan was noted to be most consistent with hepatocellular disease. However, the relationship between such diagnosed disorders and the Veteran’s military service was not discussed by his treatment providers. Consequently, the Board finds that there is no probative evidence of record causally or etiologically relating the cause of the Veteran’s death to any disease, injury, or incident during service. Additionally, the appellant has not identified an existing opinion by a competent professional to support his claim. In this regard, the Board is cognizant that a VA opinion addressing the cause of the Veteran’s death has not been obtained. However, as no relevant in-service disease, injury, or incident has been identified, there is no reasonable possibility that such an opinion would substantiate the appellant’s claim. Consequently, such is not necessary in the instant case. De La Rosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Furthermore, to the extent that the appellant has argued that the Veteran’s cirrhosis of the liver is due to his alcohol abuse that began as a result of his military service, the law precludes the award of direct service connection for disorders resultant from alcohol abuse. Moreover, to the extent that the appellant has argued that the Veteran experienced liver symptomatology since his discharge from service, the Board finds these reports are not credible. Here, the Veteran’s STRs are negative for cirrhosis of the liver. Moreover, his post-service medical record reveals that he was not diagnosed with cirrhosis of the liver until 1993; approximately 19 years after discharge from service. Finally, there is no competent evidence relating the Veteran’s liver symptoms to a diagnosis of cirrhosis of the liver within his first post-service year. Therefore, the Board finds that presumptive service connection for a chronic disease, to include based on a continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. In reaching this decision, the Board has considered the appellant’s and his mother’s arguments in support of his claim. Here, the appellant and his mother, as lay people, are certainly competent to report matters which are readily observable. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, although they sincerely believe that the Veteran’s death is related to his military service, such determination is a complex medical matter requiring training and experience which they do not possess. Specifically, the question of the etiology of the Veteran’s terminal diseases involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of anasarca, micronodular cirrhosis of the liver, and interstitial pancreatic fibrosis, such falls outside the realm of common knowledge of a lay person. See Jandreau, supra (lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board affords their statements as to the cause of the Veteran’s death no probative weight. Therefore, while sympathetic to the appellant’s claim, the Board finds that a disability of service origin did not cause or contribute to the Veteran’s death. As such, service connection for the cause of the Veteran’s death 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 appellant’s claim, that doctrine is not applicable and the claim must be denied. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel