Citation Nr: 1807686 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-17 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1963 to March 1971, which included service in the Republic of Vietnam. The Veteran died in November 1999. The Appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In her May 2014 VA Form 9, the Appellant requested a hearing before the Board. She withdrew that request in a letter submitted to VA in January 2015. In April 2015, the Veteran participated in a Decision Review Officer (DRO) informal conference. A report from this conference is associated with the claims file. In October 2015, the Board remanded the claim to the agency of original jurisdiction (AOJ) for further development. There has been substantial compliance with the remand directives. FINDINGS OF FACT 1. The Veteran's death certificate shows that he died in November 1999. The cause of death determined was metastatic adenocarcinoma (cancer) of the biliary tract. Cirrhosis of the liver was listed as a significant condition. 2. At the time of the Veteran's death, he was not service-connected for any disability. 3. The Veteran served in the Republic of Vietnam during the Vietnam era, and is presumed to have been exposed to Agent Orange. 4. The Veteran did not have respiratory or prostate cancers. 5. Biliary tract cancer was not manifested in service or within the first post-service year and was not caused by service, to include Agent Orange exposure. 6. Cirrhosis of the liver was not manifested in service or within the first post-service year and was caused by service, to include Agent Orange exposure. 7. The Veteran's death was not due to a service-connected disability and/or otherwise attributable to his military service. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death have not all been met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017). The Appellant is claiming entitlement to service connection for the cause of the Veteran's death. 38 U.S.C. § 1310. The cause of a veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, navel, 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 service. 38 U.S.C. § 1116(f). Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The record reflects that the Veteran served in the Republic of Vietnam from June 1967 to June 1968. Thus, he is presumed to have been exposed to herbicide agents, to include Agent Orange, in service. 38 U.S.C. § 1116(f) (2012). The Veteran died in November 1999, at the age of 58. His death certificate lists biliary cancer as the immediate cause of death and cirrhosis of the liver as a significant condition. No autopsy was conducted. Service connection had not been established for any disability at the time of his death. The Appellant asserts that the Veteran had some form of cancer, such as respiratory (lung) and prostate cancers which contributed to his death. In the alternative, she asserts that the Veteran's biliary cancer and liver cirrhosis are a result of his military service, to include Agent Orange exposure in Vietnam. December 1968 service treatment records document complaints of a fever, malaise, and chest pain. Chest x-rays showed few rhonchi in the right mid-lung field. During a January 1965 examination for re-enlistment, clinical evaluations of the lungs, chest, abdomen and viscera were normal. On February 1971 separation, clinical evaluations of the lungs, chest, abdomen and viscera were again normal. July 1999 VA treatment records document the Veteran's report of prostate swelling. He attributed swelling to a hemorrhoid problem; no diagnosis was provided. VA treatment records also reveal that the Veteran had carcinoma, wide-spread dissemination of cancer throughout the body. A September 1999 chest computed tomography (CT) scan revealed abnormalities with respect to the Veteran's right lower lobe. A biopsy was not conducted. September 1999 VA treatment records document complaints of low abdominal pain. An assessment of multiple problems with his gastrointestinal system was provided. In October 1999, to treat symptoms of weight loss and diarrhea, he underwent a procedure to replace a stent in the common bile duct. That same month, in October 1999, the Veteran was admitted to a hospital to treat complaints of abdominal pain and distention. Admission notes mentioned a CT scan showing questionable stones in the distal common bile duct. Hospital course consisted of intensive care for possible intraabdominal infection and ductal dilation. A CT scan failed to demonstrate an abscess or other intraabdominal infection. During admission, an exploratory laparotomy was conducted that revealed diffuse carcinomatosis. Biopsy of an omentum mass revealed adenocarcinoma. Diagnoses of adenocarcinoma omentum and carcinomatosis were provided. The Veteran stayed in the hospital until his death on November 28, 1999. A relevant VA medical opinion was obtained in August 2016. Review of the claims file was noted. The physician acknowledged the October 1999 hospitalization and course of treatment, to include diagnosis of metastatic adenocarcinoma involving omentum with massive ascites. He emphasized that the primary tumor was never found, thus, it is unclear where the cancer originated from. The physician referenced CT scans of the abdomen that did not identify a tumor. As for liver cirrhosis, the physician explained that etiology is unclear because there is no evidence of alcohol abuse just a history of recurrent or chronic pancreatitis. Pertinent to lung and prostate cancers, the physician acknowledged that the VA has recognized certain cancers and other health problems as presumptive diseases associated with exposure to Agent Orange or other herbicides during military service, but he was unable to find conclusive evidence of either condition. Although a small nodule was found in the lung, the lesion was never biopsied due to the Veteran becoming extremely ill. Definitive diagnoses of lung or prostate cancer were not provided. The physician concluded that an autopsy would have provided answers; however, one was not performed. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the preponderance of the evidence is against the claim. As for lung and prostate cancers, although they are listed disabilities subject to presumptive service connection based on Agent Orange exposure, the Veteran did not have a diagnosis upon which service connection could be granted. See 38 C.F.R. §§ 3.307, 3.309. Aside from the Appellant's statements, there is no competent evidence that the Veteran had lung or prostate cancer at the time of his death. Notably, the nodule found in his lung was never biopsied. As for prostate cancer, the claims file does not contain a diagnosis of such disease. Thus, service connection for neither disability is warranted. See Degmetich v. Brown, 104 F.3d 1328 (1997) (the existence of a current disability is the cornerstone of a claim for VA disability compensation). With respect to whether the Veteran's biliary tract cancer and cirrhosis of the liver manifested in service, or are related to his in-service herbicide exposure, service treatment records are absent for any complaints of, or diagnoses related to, biliary tract cancer or cirrhosis of the liver. On separation, clinical evaluations were normal. The evidence of record is devoid of a date of onset of disability, but shows that the Veteran filed an initial claim for benefits in April 1990, at which time he did not claim entitlement to service connection biliary tract cancer or cirrhosis of the liver. As detailed by the August 2016 VA opinion, the etiology of both conditions is unknown as the primary tumor was never found and an autopsy was not conducted upon the Veteran's death. Thus, there is no evidence to support a finding that biliary tract cancer or cirrhosis of the liver manifested in service or within the first post-service year. In addition, biliary tract cancer and cirrhosis of the liver have not been recognized by VA as diseases associated with exposure to herbicides. For these reasons, presumptive regulatory provisions regarding exposure to Agent Orange are not applicable with regard to these disabilities. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Therefore, presumptive service connection for the cause of the veteran's death as a result of exposure to herbicides must be denied. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Nevertheless, even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the Board finds the August 2016 VA medical opinion the most persuasive and probative evidence of record relating to the Veteran's biliary tract cancer and cirrhosis of the liver to his herbicide exposure. The opinion acknowledged pertinent VA regulations, a complete review of the claims file, and included extensive rationales in support of the opinions reached that took into consideration the Veteran's medical history, and included references to pertinent clinical studies. The physician emphasized that the Veteran's primary tumor was never found, thus, it is unclear where his cancer originated from. CT scans of the abdomen did not identify a tumor. As for liver cirrhosis, the etiology is unclear because there is no evidence of alcohol abuse, just a history of recurrent or chronic pancreatitis. Notably, the physician indicated that an autopsy, which was not conducted, would have assisted in answering these questions. The Board finds the opinion adequate and sufficient to resolve the issue on appeal and affords it high probative value. The Board has considered the Appellant's contention that a relationship exists between the Veteran's cause of death and his service, to include that he had lung and prostate cancer, or that his biliary tract cancer and cirrhosis of the liver were caused by Agent Orange exposure. However, this case at hand is not the type of situation discussed in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) and a number of other related cases holding that lay evidence may be sufficient to establish this required nexus (i.e., link) between the Veteran's military service and his disability and/or death. See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2). Although the Appellant is competent to report her observations on the Veteran's medical symptoms and discomfort during his lifetime, she is not competent to render a medical opinion addressing the etiology of his conditions, without evidence showing that she has medical training or expertise. See 38 C.F.R. § 3.159(a)(1), (2); See also Jandreau at 1377 (Fed. Cir. 2007). She does not meet any of the three exceptions for competent lay evidence as listed under Jandreau. As the conditions which caused or contributed to the Veteran's death were not shown in service, and the record contains no indication of a possible link between his death and active military service, the Board finds that the preponderance of the evidence is against the Appellant's claim for service connection for the cause of the Veteran's death. The Board recognizes the Veteran's honorable service, and sympathizes with the Appellant's contentions; however, the Board finds that the Veteran's death was unrelated to service to include a service-connected disability or herbicide (Agent Orange) exposure. In light of the above, the Board finds that the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt doctrine does not apply and the claim is denied. 38 U.S.C. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs