Citation Nr: 18152883 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-13 693 DATE: November 27, 2018 ORDER Service connection for the cause of the Veteran’s death is denied. FINDING OF FACT At the time of his death, the Veteran was not service-connected for any disability; metastatic adenocarcinoma, listed as cause of death on the death certificate, was not shown to have had onset in service or be otherwise related thereto CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§1310, 5103, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from May 1963 to May 1965. He died in June 1999. The Appellant is his son. In December 2017, the Board denied the Appellant’s claim for service connection for the Veteran’s cause of death. The Appellant appealed this decision to the Court of Appeals for Veterans Claims (Court). In August 2018, the Court vacated the Board decision and remanded the Veteran’s claim for action consistent with the directives of a joint motion for remand (JMR). With respect to those directives, the Board notes that a complete copy of the Veteran’s autopsy report was added to the claims file in October 2018. Following the JMR, the Appellant’s representative submitted a brief with argument but did not request a new hearing. The Board finds there is no pending hearing request. Entitlement to service connection for the cause of the Veteran’s death. The Appellant claims that service connection for the Veteran’s cause of death is warranted. The death certificate documents that the Veteran died in June 1999 from metastatic adenocarcinoma. No contributory causes of death were listed. To establish service connection for the cause of the Veteran’s death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided or lent assistance to producing death -e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). In short, the Appellant is entitled to death benefits if the principal or contributory cause of the Veteran’s death was (1) an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran’s death; or (2) a previously nonservice-connected disability that was in fact incurred or aggravated by service. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312. At the time of the Veteran’s death, service connection was not in effect for any disability, including gastric cancer or metastatic adenocarcinoma. The Appellant contends that the Veteran’s gastric cancer should be service-connected because of the Veteran’s alleged, but not verified, exposure to Agent Orange during service as well as alleged in-service exposure to carcinogenic chemicals as a photo finisher. The Appellant has also argued that the Veteran’s cancer could have been secondary to asbestos exposure while at Fort Leonard Wood. To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a Veteran was exposed to an herbicide agent during active service and manifests certain enumerated diseases to a compensable degree any time after such service, such disability will be service connected 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. §§ 3.307(a)(6), 3.309(e). The Veteran’s treatment records show that he had been diagnosed with gastric cancer and prostate cancer, but his treating physician advised that the Veteran’s death was from metastatic gastric cancer. Gastric cancers are not among the diseases listed under 38 C.F.R. § 3.309(e). There is no competent evidence of record indicating that the Veteran’s death resulted from a cancer presumptively related to herbicide exposure. Therefore, even if herbicide exposure were established, presumptive service connection would not be warranted for gastric cancer. In this regard, the Board notes that in the December 2017 brief the appellant’s representative reasserted the contention that the Veteran died in part due to presumptive service-connected diseases. The evidence, however, weighs against such a finding. The question of which cancers led to the Veteran’s death is a question requiring medical knowledge. Here, the evidence indicates that prostate cancer was not a cause of the Veteran’s death; there is no competent evidence that indicates that another cancer contributed or caused the Veteran’s death. Therefore, the Board will proceed with further consideration of the cancer listed on the Veteran’s death certificate. In addition to the presumption of service connection under 38 C.F.R. §§ 3.307 and 3.309, service connection for a disability claimed as due to herbicide agent exposure may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The Appellant contends that the Veteran was exposed to herbicide agents while serving at Fort Leonard Wood and that his death was related to such exposure. The Appellant submitted articles on the connection between Agent Orange exposure and the development of stomach cancer. However, the articles are not specific to the Veteran and the findings therein were not based on the Veteran’s history and circumstances. Evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Appellant also submitted two medical opinions, one from the Veteran’s private treating physician and one from a VA physician who reviewed the Veteran’s claims file, stating that gastric cancer is associated with Agent Orange exposure and opining that if the Veteran was exposed to Agent Orange, such exposure could have caused his gastric cancer. As discussed below, as the Board finds that the Veteran did not have herbicide agent exposure, these opinions do not provide a basis for granting the benefit sought. The Veteran’s service personnel records show that he did not serve in the Republic of Vietnam, but was stationed at Fort Leonard Wood, Missouri from June 1963 to August 1963 and was stationed at Fort Belvoir, Virginia for the rest of his period of service. Although the December 2017 brief indicates that the Veteran served in Vietnam, this is not shown by the record and has not been asserted by the Appellant. See December 2017 brief, page 4. The Board finds that a preponderance of the evidence is against finding that the Veteran had Vietnam service such that exposure to herbicide would be presumed under 38 C.F.R. § 3.307(a)(6)(iii). The Appellant has argued that the Veteran was exposed to Agent Orange while stationed at Fort Leonard Wood. In November 2015, in response to a query, the VA Compensation Service noted stated that the Department of Defense has not identified Fort Leonard Wood as a place where Agent Orange was used, tested, stored, or transported. It was noted that there was no need for Agent Orange use at Fort Leonard Wood since there were no combat operations there. It was further noted that Fort Leonard Wood was not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi, to South Vietnam via merchant ships. In November 2015, the Joint Services Records Research Center (JSRRC) coordinator issued a formal finding that there was a lack of information to corroborate the Veteran’s exposure to Agent Orange. In support of his contention, he submitted a document prepared for the Department of Defense in December 2006 titled The History of the US Department of Defense Programs for the Testing, Evaluation, and Storage of Tactical Herbicides. The report includes the statement that in 1966 the Army deployed the first Army Chemical Corps units to South Vietnam, responsible for the storage, handling, mixing, and application of riot control agents, burning agents, and herbicides. The training of the Army Chemical Corps personnel to handle herbicides was the responsibility of the Army Chemical Corps Training Center at Fort Leonard Wood. The Board acknowledges that information, but finds it has little probative value as to the Veteran’s exposure to Agent Orange while at Fort Leonard Wood. Initially, the Board notes that the Veteran was stationed at Fort Leonard Wood from June 1963 to August 1963. The personnel presumably training at Fort Leonard Wood to handle herbicide did not deploy to Vietnam until 1966, thus is likely that training occurred after the Veteran was no longer stationed at Fort Leonard Wood. Also, the report does not indicate that any Agent Orange was physically present at Fort Leonard Wood as part of that training. Finally, the Appellant has not contended, and the evidence does not support, that the Veteran was involved in any training to handle herbicide while at Fort Leonard Wood. The Appellant has not been shown to have the expertise to identify herbicidal agents, as defined by VA regulations as warranting of presumption, and other types of herbicides, and there are no statements by the Veteran himself of record indicating he had any knowledge of exposure to herbicidal agents during his time in service. The Board finds the official findings based on service records to be the most probative evidence as to the Veteran’s exposure to herbicide agents in service. Accordingly, the Board finds that the Veteran was not exposed to herbicide agents, including Agent Orange, during his military service. The above analysis was done in line with the contents of the JRM. The Board finds that there is not a basis for additional development as to whether the Veteran has herbicide exposure, and that based on all evidence of record the evidence weighs against a finding that the Veteran had herbicide exposure during active service. A remand for additional development would not serve a useful purpose and would only further delay the final adjudication of this appeal without a benefit flowing to the Appellant. As the Veteran was not exposed to herbicide agents presumptively or on a facts found basis, his metastatic gastric cancer is not related to exposure to herbicide agents in service. The Appellant alternatively contends that the chemicals the Veteran was exposed to as a photo finisher caused his gastric cancer. A medical opinion was provided in June 2017 to determine the etiology of the Veteran’s gastric cancer. The examiner opined that the Veteran’s gastric cancer was less likely than not related to service, to include in-service exposure to photo finishing chemicals. The examiner noted that “[n]one of the chemicals used in photographic processing and finishing cause adenocarcinoma of stomach” and that gastric adenocarcinoma is usually caused by helicobacter Pylori, which can also cause gastric ulcers like the Veteran had in 1996 (post-service). Here, the record contains no indication that there is any relationship between Veteran’s metastatic gastric cancer and his military service, to include carcinogenic chemical exposure therein. Service treatment records do not show any complaints, treatment or diagnoses related to gastric cancer, and there are no competent opinions of record indicating that there is any relationship between the Veteran’s military service and his metastatic gastric cancer. The Board acknowledges the Appellant’s own contention that there is a relationship between the photo finishing chemicals and the Veteran’s gastric cancer. However, as a lay person, the Board finds that the Appellant does not have the education, training, and experience to offer a medical diagnosis or an opinion as to the onset or etiology of the Veteran’s cancer. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Finally, the Appellant also alternatively contends that the Veteran was exposed to asbestos at Fort Leonard Wood, and that exposure caused his cancer. At his November 2016 Board hearing, the Appellant stated that a historian at Fort Leonard Wood had told him that the barracks used to have asbestos in them because it was an old naval base. The Board notes there has been no other evidence submitted suggesting there was asbestos at Fort Leonard Wood at the time the Veteran was stationed there, nor that if there was, he was actually exposed to it. Further, there is no evidence of record other than the Appellant’s unsupported lay opinion, that asbestos has any relationship to the development of gastric cancer. The Board acknowledges the Appellant’s contention, but finds that his lay opinion has no probative value. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board notes that no VA medical opinion has been obtained as to whether asbestos exposure is related to the development of adenocarcinoma; however, the Board finds none is required. Here, the only evidence as to a relationship between asbestos exposure and the development of adenocarcinoma is the Appellant’s own conclusory generalized lay statement, which is unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical opinion is not warranted. See DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). As a preponderance of the evidence is against finding that the Veteran’s gastric cancer is related to service, to include in-service exposure to photo finishing chemicals or asbestos, the Board finds that service connection is not warranted for the Veteran’s gastric cancer. While the Appellant argues to the contrary, matters concerning the classification and types of cancers are not within the province of a layperson and he is not shown to have the appropriate training and expertise to render an opinion on this medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77(Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).   Although the Board is sympathetic to the Appellant’s claim, the criteria for an award of service connection for the cause of the Veteran’s death has not been presented. The preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for service connection for cause of death must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Christensen