Citation Nr: 18151968 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 16-49 539 DATE: November 21, 2018 ORDER Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The appellant is the Veteran’s surviving spouse. 2. The Veteran had no adjudicated service-connected disabilities during his lifetime. 3. The Veteran died in November 2015; the certificate of death reflects that the immediate cause of death was pancreatic cancer; the contributory cause of death was hyperlipidemia. 4. The Veteran’s death is not related to his military service, to include claimed exposure to herbicide agens therein. CONCLUSIONS OF LAW 1. The appellant has standing as a proper claimant to pursue a claim for DIC benefits as the Veteran’s surviving spouse. 38 U.S.C. §§ 1102, 1304, 1541 (2012); 38 C.F.R. § 3.54 (2017). 2. The criteria to establish service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to June 1974. Unfortunately, the Veteran died in November 2015. In February 2016, the Veteran’s surviving spouse, the appellant in this case, brought this claim for DIC asserting service connection for the cause of the Veteran’s death. The claim was denied in an April 2016 rating decision, and the appellant perfected a timely appeal. Entitlement to DIC Benefits Death pension, Compensation, and DIC benefits will be paid to a surviving spouse (1) who was married to the veteran for one year or more, (2) who had a child born of the marriage, or born to them before the marriage, or (3) in the case of compensation and DIC benefits, who was married to the veteran before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated. See 38 U.S.C. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. Prior to reaching the merits of the claims for VA death benefits and accrued benefits, it must be determined if the appellant has standing as a proper claimant to pursue a claim for these VA benefits (i.e., DIC, death pension benefits, accrued benefits) as the “surviving spouse” of the decedent. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994); citing Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). A marriage certificate issued by the County of San Luis Obispo, California reflects that the Veteran and the appellant were legally married on July 6, 2013. A death certificate issued by the County of San Luis Obispo shows that the Veteran died on November 30, 2015 (Death Certificate), and names the appellant as the surviving spouse at the time of death. Accordingly, the Board finds that the appellant was married to the veteran for more than one year, and she thereby has standing as a proper claimant to pursue a claim for DIC benefits as the Veteran’s surviving spouse. See also VA Administrative Decision (VBMS Receipt Date 04/08/2016). Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to DIC Based on Service Connection for the cause of the Veteran’s Death. Service connection may 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. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In a DIC claim based on cause of death, the current disability element will always have been met (the current disability being the one that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). Evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.312. Additionally, evidence must show that a service-connected disability is either the principal or contributory cause of death. A service-connected disability is the principal cause of death when that disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death must be causally connected to death and must have substantially or materially contributed to death; combined to cause death; or aided or lent assistance to the production of death. 38 C.F.R. § 3.312. For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. A veteran who had active duty service in the Republic of Vietnam beginning on January 9, 1962, and ending on May 7, 1975 (the “Vietnam Era”), shall be presumed to have been exposed during such service to an herbicide agent (e.g. Agent Orange) unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii), (v). The term “service in the Republic of Vietnam” includes actual duty or visitation by the veteran in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. These provisions have been extended to Vietnam Era veterans who served near the Korean demilitarized zone (DMZ), certain Air Force veterans whose regular duties placed them on the perimeter of Royal Thai Air Force Bases in Thailand, and individuals who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam Era. See 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iv), (v). If a veteran was exposed to an herbicide agent during active service, certain diseases shall be presumed service connected if the certain requirements are satisfied, subject to rebuttal. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. § 3.307(a), (d), 3.309(e). As pertinent here, neither pancreatic cancer nor hyperlipidemia are among the enumerated diseases under 38 C.F.R. § 3.309(e); therefore, the presumption of service connection is not for application on that basis. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis A November 2015 private treatment record reflects that the Veteran was diagnosed with stage IV pancreatic cancer. See Private consultation record dated November 11, 2015. As noted above, the Death Certificate specifies that the immediate cause of death was pancreatic cancer; the contributing cause of death was hyperlipidemia, which indicates elevated concentrations of lipids in the bloodstream. Dorland’s Illustrated Medical Dictionary, 903 (31st ed. 2007). The Veteran was not service connected for any disability at the time of his death. The appellant’s primary assertion is that the Veteran’s pancreatic cancer was caused by his exposure to Agent Orange during service. See Notice of Disagreement dated May 2, 2016 (Section 12A). However, the Veteran’s military personnel records do not show that he served in the Republic of Vietnam. Likewise, the record does not reflect that the Veteran had “service in the Republic of Vietnam” as the phrase is broadly construed under 38 C.F.R. §§ 3.307(a), discussed above, to include service under any of the circumstances that trigger the presumption of exposure to herbicide agents. Presumption of exposure to herbicide agents during service is not conceded. Even if the Veteran were found to have had service in the Republic of Vietnam during the Vietnam era, pancreatic cancer is not among the diseases identified in 38 C.F.R. § 3.309(e) as being associated with exposure to herbicide agents. Therefore, the criteria for presumption service connection under 38 C.F.R. §§ 3.309(e) are not for application. Additionally, the appellant has not stated, and the evidence does not show, that the Veteran was directly exposed to herbicide agents during service. Pancreatic cancer is a chronic disease under 38 C.F.R. § 3.309(a) (as a malignant tumor), however, after a review of all the evidence of record, the Board finds that the Veteran’s pancreatic cancer was not incurred in-service, did not manifest within one year of discharge from service, and symptoms of pancreatic cancer have not been continuous since service. The Veteran’s service treatment records are silent as to complaints or diagnoses of cancer or hyperlipidemia, and the earliest record evidence of pancreatic cancer or hyperlipidemia is not shown until decades after service separation, when the Veteran was diagnosed with hypercholesterolemia (a form of hyperlipidemia) in June 2015, and stage IV pancreatic cancer in November 2015. Moreover, hyperlipidemia is a laboratory finding, and, in and of itself, is not a disability for which service connection may be granted. A VA medical opinion was not obtained regarding this claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, there is simply no lay or medical evidence establishing that an event, injury, or disease occurred in service that was related to the Veteran’s fatal pancreatic cancer. A mere conclusory generalized lay statement that military service caused the claimant’s pancreatic cancer is insufficient to require an examination under McLendon. Waters, 601 F.3d at 1278-79 (rejecting appellant’s argument that his “conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C. § 5103A(d)(2)(B).]”). The Board acknowledges the appellant’s sincere belief that the Veteran’s death is related to his military service; however, she is not competent to render such a complex medical opinion because she is not shown to possess the requisite medical training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Therefore, the Board finds the appellant’s lay assertion regarding nexus is not competent or probative. To summarize, the Board finds that the preponderance of the evidence is against the appellant’s claim for service connection of the cause of the Veteran’s death. As the evidence fails to establish service connection, the entitlement to DIC benefits on the basis of entitlement to service connection for the cause of the Veteran’s death is not warranted. 38 C.F.R. § 3.312(b). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel