Citation Nr: 18158044 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 10-25 392 DATE: December 14, 2018 ORDER The claim of entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in September 2008 at the age of 63; his death certificate lists his immediate cause of death as metastatic adenocarcinoma of esophagus, as well as lists another significant condition contributing to death but not resulting in the underlying cause as chronic obstructive pulmonary disease (COPD). 2. At the time of the Veteran’s death in September 2008, service connection was in effect for tinnitus, rated as 10 percent disabling. 3. Although the Veteran service in Vietnam during the Vietnam Era, and thus is presumed to have been exposed to herbicides (to include Agent Orange), esophageal cancer is not among the diseases recognized by the VA Secretary as etiologically related to such exposure. 4. The metastatic adenocarcinoma of esophagus resulting in the Veteran's death first manifested many years following the Veteran’s separation from service, and the weight of the probative evidence is against a finding of a medical relationship, or nexus, between the cause of the Veteran’s and either service or service-connected disability. 5. A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1101, 1103, 1110, 1112, 1113, 1154(b), 1310, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from September 1965 to June 1967, including service in the Republic of Vietnam. The Veteran died in 2008. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a December 2008 rating decision in which the Regional Office (RO), inter alia, denied service connection for the cause of the Veteran’s death. In April 2014, the Board remanded the instant claim to the RO to afford the appellant a requested hearing. In November 2015, the appellant testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In a March 2016 decision, the Board denied the appellant's claim for service connection for cause of the Veteran’s death. The appellant appealed the Board’s March 2016 denial to the United States Court of Appeals for Veterans Claims (Court). In a September 2016 Order, the Court vacated the Board’s decision and remanded the claim to the Board for further proceedings, consistent with the findings of a September 2016 Joint Motion for Remand. In December 2016, the Board remanded this matter to the AOJ for further development. After accomplishing further action, the AOJ continued to deny the claims (as reflected in an August 2018 supplemental statement of the case (SSOC)) and returned this matter to the Board for further appellate consideration. The Board finds that substantial compliance with the December 2016 remand directives has been achieved. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999).Stegall v. West, 11 Vet. App. 268 (1998). Pursuant to the remand, VA medical opinions were obtained in July and August 2018. The authoring physician offered an opinion as to whether the Veteran’s death was related to active service, to include his presumed exposure to herbicides and supported that opinion with a robust rationale. Further, a physician addressed whether the Veteran’s death was due to lung cancer, rather than esophageal cancer. The appellant contends that service connection for the cause of the Veteran’s death is warranted. Specifically, she alleges that the Veteran actually died of lung cancer, as his esophageal cancer had been in remission, that it was his lung cancer that had metastasized into esophageal cancer and that his lung cancer was independent from his esophageal cancer. Dependency and indemnity compensation (DIC) may be awarded to a veteran’s spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order for service connection for the cause of the Veteran’s death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. Id. A service-connected disorder is one that was incurred in or aggravated by active service. Death is deemed to have been caused by a service-connected disability when the evidence establishes that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). Service-connected disability is deemed to have been the principal cause of death when it, singly or jointly with another disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Generally, minor service-connected disabilities, particularly those of a static nature or not affecting a major organ, would not be held to have contributed to death primarily due to an unrelated disability. 38 C.F.R. § 3.312(c)(2). 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, rendering the veteran materially less capable of resisting the effects of the other diseases primarily causing death. Where the service-connected condition affects the vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). See Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a Veteran’s death may be demonstrated by showing that the Veteran’s death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as a malignant tumor, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(a). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303 (b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as “a substitute way of showing in-service incurrence and medical nexus.”). Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may be established by a showing that a nonservice-connected disability was caused or aggravated (chronically worsened) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active service, certain diseases 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. Respiratory cancers are among those designated diseases. 38 C.F.R. § 3.309(e). Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim must be denied. The Veteran was born in January 1945. He died in October 2008. His death certificate lists his immediate cause of death as metastatic adenocarcinoma of esophagus, and lists another significant condition contributing to death but not resulting in the underlying cause as COPD. The approximate interval between onset of esophagus cancer and death was identified as “months.” However, it was noted that tobacco use contributed to death. The Veteran died at a private hospital and no autopsy was performed. During his lifetime, service connection was established only for tinnitus, rated as 10 percent disabling. Initially, based on the evidence cited above, the Board first finds that the Veteran died in October 2008 at the age of 63 with an immediate cause of death of metastatic adenocarcinoma of esophagus. The death certificate also listed another significant condition contributing to death but not resulting in the underlying cause as COPD and that tobacco use contributed to his death. Notably, compensation is not payable for disability resulting from the use of tobacco products. 38 U.S.C. § 1103. The July 2018 VA examiner explained that the evidence of record showed that the Veteran died due to metastatic adenocarcinoma of the esophagus. Further, he explained that the esophageal cancer metastasized to the lungs. This is in accord with the death certificate that notes death was caused by esophageal, not lung, cancer. The Board finds the opinion of the July 2018 examiner, which is supported by a thorough explanation and the death certificate, is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board notes that the appellant has argued that the Veteran died due to lung cancer. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the matter of what cancer caused the Veteran’s death is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). As the appellant is not shown to be other than a layperson without appropriate training and expertise, she is not competent to render an opinion as to the cause of the Veteran’s death. Id. Therefore, in connection with this claim, the appellant’s assertion that the Veteran died from lung cancer of no probative value. The Board also notes the testimony of the appellant during her November 2015 hearing that she had no written medical opinion supporting her contention that the Veteran’s lung cancer was independent of his esophageal cancer. Thus, the weight of the competent and probative evidence reflects that the Veteran’s death was caused by esophageal cancer, not lung cancer. The Board further finds that the record does not otherwise provide a basis to award service connection for cause of the Veteran’s death. The service medical records are completely negative for findings or diagnoses of any carcinoma, and there is no medical evidence that any cancer was manifested (to any degree) during the first post-service year. Hence, the legal authority governing presumptive service connection for malignant tumor as a chronic disease is of no avail to the appellant. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In fact, the first objective evidence of esophageal cancer is reflected in the March 2006 clinical records-many decades after the Veteran’s service. These records reflect that esophageal cancer had its onset in 2006, and then metastasized to the Veteran’s lungs, as discussed above. Significantly, moreover, the record includes no competent evidence or opinion even suggesting that there exists a medical relationship between esophageal cancer and Veteran’s military service, and neither the appellant nor her representative has presented, identified or alluded to the existence of any such evidence. In August 2018, a VA examiner opined that it was less likely than not that either the Veteran’s esophageal cancer or COPD were related to active service, to include presumed exposure to herbicides. As rationale, the examiner explained that neither COPD or esophageal cancer are noted to be related to herbicide exposure by the National Institutes of Health, Harrison’s Principles of Internal Medicine (a treatise), or any other legitimate medical resource. The examiner also noted that neither disability is listed as presumptively related to herbicide-exposed veterans, as discussed above. The Board finds this opinion probative. See Nieves-Rodriguez, supra; Stefl, supra. To that end, the examiner offered a clear opinion supported by a thorough rationale, to include citation to medical authorities. Thus, the Board finds the August 2018 examiner’s opinion probative on the question of whether the Veteran’s fatal esophageal cancer or COPD was related to service, to include his exposure to herbicides. While the appellant has argued that the Veteran’s death was related to his exposure to herbicides, such is a complex medical matter within the province of trained medical professionals. Although lay persons are competent to provide opinions on some medical issues (see Kahana, supra), the specific matter of the etiology of disability resulting in the Veteran's death is a complex medical matter that falls outside the realm of common knowledge of a lay person. Here, neither the appellant nor her representative is shown to have the medical training and expertise to competently render a probative opinion as the etiology of the Veteran’s death. As such, the lay assertions in this regard have no probative value. On this record, the Board must conclude that the cause of the Veteran’s death, identified as metastatic adenocarcinoma of esophagus, first manifested many years following the Veteran's separation from service, and the weight of the probative evidence is against a finding that the cause of the Veteran’s death was related to his active service, to include his exposure to herbicides. Notably, the Veteran’s death certificate reflects that he died in October 2008 due to metastatic adenocarcinoma of esophagus which had an interval of “months” before the onset of death. There is no argument of record, or medical records suggesting, that the Veteran’s esophagus cancer manifested in service or to a compensable degree within one year of service discharge. For all the foregoing reasons, the claim on appeal must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against s the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel