Citation Nr: 18160767 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 17-10 250 DATE: December 27, 2018 ORDER Entitlement to service connection for cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in April 2015. The immediate cause of death was respiratory failure with underlying causes of multiorgan system failure, diarrhea, dehydration, and colon cancer. 2. The Veteran served in the Republic of Vietnam during the Vietnam Era; he is presumed to have been exposed to designated herbicide agents. 3. At the time of his death, the Veteran had no service-connected disabilities. 4. The cause of the Veteran’s death has not been shown to be related etiologically to any disease, injury, or event in service, to include presumed herbicide exposure. CONCLUSION OF LAW A disability incurred in, or aggravated by, service did not cause or contribute substantially or materially to the Veteran’s death. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 1318, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1969 to August 1970, including service in the Republic of Vietnam. The Veteran died in April 2015. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (the Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Pension Center in Milwaukee, Wisconsin. Service Connection for Cause of Death The appellant contends that the Veteran’s colon cancer, the underlying cause of death, was caused by exposure to Agent Orange. See February 16, Form 9, p.2. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection will be granted if it is shown that the veteran suffers from a 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 active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To establish entitlement to service connection for the cause of a Veteran’s death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312(c)(1). A Veteran who “during active military, naval, or air 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.” 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). As the Veteran served in the Republic of Vietnam during the specified time, the Veteran is presumed to have been exposed to an herbicide agent. For Veterans who have been exposed to an herbicide agent (to include Agent Orange) during active service, presumptive service connection is available for certain enumerated diseases. See 38 C.F.R. § 3.309(e). Although presumptive service connection is available for certain types of cancer, colon cancer is not among those diseases for which the presumption is available. The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600—42608 (2002). Nevertheless, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Veteran’s August 1970 Separation Report of Medical Examination indicates a normal clinical evaluation of abdomen and viscera as well as a normal clinical evaluation of anus and rectum. A review of other service treatment records (STRs) and military personnel records reveals no complaints, diagnoses, or treatment for colon cancer or symptoms suggestive of colonic dysfunction or disease. The record does not include any post-service medical treatment records. VA requested that the appellant provide medical evidence to show that the Veteran’s colon cancer began in service; competent evidence linking the Veteran’s cause of death to herbicide exposure; and authorization forms to retrieve private medical records which reveal current colon cancer or persistent or recurrent symptoms of colon cancer. Review of the record does not show receipt of any of this requested evidence, which the appellant was advised was required to substantiate her cause of death claim. 38 U.S.C.A. § 5103A(a) requires VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is “necessary to substantiate the claimant’s claim” and only excuses VA from making reasonable efforts to provide such assistance, if requested, when “no reasonable possibility exists that such assistance would aid in substantiating the claim.” Wood v. Peake, 520 F.3d 1345, 1348-49 (Fed. Cir. 2008); see also DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The duty to assist is not a one-way street. If an appellant wishes help in developing her claim, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the appellant has not identified or submitted competent evidence to support the claim that herbicide agent exposure caused the Veteran’s colon cancer or other contributing causes of death, and as the regulations do not provide for a presumption of service connection for exposure to herbicide agents, the criteria for VA to obtain a medical opinion are not met as there is no evidence to raise a reasonable possibility to aid in substantiating the claim. While the appellant contends that the Veteran’s colon cancer was caused by exposure to an herbicide in active service, she is not competent to establish that proximate cause and has offered no competent evidence to support this contention. An appellant still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). The Board is sympathetic to the appellant’s loss of her spouse, and acknowledges her belief as to the etiology of the Veteran’s colon cancer. However, as a lay person, the appellant is not competent to provide an etiological opinion addressing complex diseases like colon cancer and service. A complex matter of this sort requires specialized medical knowledge, of which lay persons generally do not possess. See, Routen, supra. Therefore, the Board finds that the preponderance of the evidence is against the appellant’s claim, and there is no reasonable doubt to resolve. See 38 U.S.C. § 5107(b); Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel