Citation Nr: 18153160 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-15 215 DATE: November 27, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. The record reflects that the Veteran died in October 2008, and that the immediate cause of death was end stage liver disease. Sepsis was listed as the underlying cause of death. 2. At the time of the Veteran’s death, service connection was in effect for diabetes mellitus, rated as 20 percent disabling, right lower extremity peripheral neuropathy, rated as 10 percent disabling, and left lower extremity peripheral neuropathy, rated as 10 percent disabling. 3. The probative evidence does not show that the Veteran’s death was caused by an illness or disease incurred in or aggravated by active duty service, including exposure to herbicides. CONCLUSION OF LAW Service connection for the cause of the Veteran’s death is not warranted. 38 U.S.C. §§ 1110, 1310 (2012); 38 C.F.R. §§ 3.303, 3.312 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1964 to August 1966. He died in October 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s case was remanded for additional development in August 2018. Entitlement to service connection for the cause of the Veteran's death The appellant contends that the Veteran was exposed to herbicides during service and that the claimed exposure caused his hepatitis C which ultimately caused his death by end stage liver disease and sepsis. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2018). 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. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2018). The presumptive diseases for exposure to herbicides include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin’s lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson’s disease, and ischemic heart disease. Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis, such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e) (2018). A surviving spouse of a qualifying veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2018). In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2018). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran’s death. 38 C.F.R. § 3.312(c) (2018). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death. A causal relationship must be shown. 38 C.F.R. § 3.312 (2018). Service-connected disabilities affecting vital organs should receive careful consideration as a contributory cause of death. That requires a determination as to whether there were debilitating effects and a general impairment of health caused by the service-connected disability which rendered the veteran less capable of resisting the effects of an unrelated disability. 38 C.F.R. § 3.312(c)(3) (2018). In cases where the primary cause of death is by its very nature so overwhelming that eventual death is anticipated irrespective of coexisting disabilities, there must be a determination as to whether there is a reasonable basis that a service-connected disability had a material effect in causing death. In that situation, it would not generally be reasonable to hold that a service-connected condition accelerated death unless the condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (2018). In this case, the Veteran is presumed to have been exposed to herbicides during his time in service. A review of the Veteran’s service treatment reports reflects that the clinical evaluation of all systems was normal at the Veteran’s entrance examination in July 1964 and separation examination in July 1966. The Veteran denied jaundice on a report of medical history form prepared in conjunction with his separation examination. The records do not reflect any reference to complaints, findings, or treatment for hepatitis C or liver disease. The Veteran’s VA outpatient treatment reports reflects that he had a diagnosis of chronic liver disease and cirrhosis as of March 2006. In February 2008, he was noted to have chronic liver disease secondary to alcoholism/hepatitis C virus. An October 2008 entry noted that the Veteran had a history of chronic liver disease secondary to alcoholism and hepatitis C status post treatment as well as other diseases. The Veteran was admitted two days prior for end stage liver disease for palliative care and was found unresponsive. No heroic measures were taken as part of the hospice philosophy. End stage liver disease, hepatic encephalopathy, and sepsis were listed as possible causes of death. The Veteran died in October 2008. The Veteran’s certificate of death listed the immediate cause of death as end stage liver disease. Sepsis was listed as the underlying cause of death. The appellant submitted a statement from C. M. Quesada, M.D., dated in April 2014. Dr. Quesada indicated that the Veteran suffered from severe liver disease during service in Vietnam which was later diagnosticated as viral hepatitis type C and he received medical therapy unsuccessfully. Dr. Quesada concluded that the Veteran’s severe infectious liver disease during active duty in Vietnam was more probable than not secondary to military service performance and Agent Orange contact. A medical opinion was obtained from a Board-Certified gastroenterologist at VA in August 2018. The physician reviewed the claims file and opined that the Veteran’s cause of death due to end stage liver disease and sepsis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that there is no known nexus between hepatitis C and Agent Orange. The examiner noted that hepatitis C is a virus and routes of transmission are primarily through blood born activities such as contaminated needles, blood transfusions, and healthcare workers whose risk of needle puncture is high. She concluded that viruses are not transmitted via an herbicide. As an initial matter, the Board notes that while the Veteran had service in the Republic of Vietnam during the period during which exposure to herbicides is presumed, hepatitis C is not a disease for which presumptive service connection is warranted. Consequently, service connection for the cause of the Veteran’s death is not warranted on a presumptive basis. With regard to service connection for the cause of the Veteran’s death on a direct basis, while the appellant submitted an opinion from Dr. Quesada who linked the Veteran’s hepatitis C to his service including exposure to Agent Orange, the medical evidence of record does not reflect that the Veteran was treated for liver disease or hepatitis C during his active duty service. Moreover, Dr. Quesada provided no rationale to support his conclusion. In contrast, the VA examiner, a Board-Certified gastroenterologist, provided a rationale to support her conclusion that hepatitis C, which caused the Veteran’s liver disease, was less likely than not incurred in service. Moreover, the Board finds that the appellant’s opinion is insufficient to provide the requisite etiology of the cause of the Veteran’s death because such matters require medical expertise. 38 C.F.R. § 3.159 (a)(1); Duenas v. Principi, 18 Vet. App. 512 (2004); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the appellant’s statements maintaining that the Veteran’s cause of death was related to his active service, including exposure to herbicides, are merely speculation as she is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to etiology. In sum, the most probative evidence of record does not establish a relationship between end stage liver disease which caused the Veteran’s death and the Veteran’s period of active service. (Continued on the next page)   The Board is very sympathetic to the appellant for the loss of her husband. Unfortunately, however, the Board must conclude that the preponderance of the evidence is against the appellant’s claim, and service connection for the cause of the Veteran’s death must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2018). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel