Citation Nr: 18154059 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 13-15 330 DATE: November 29, 2018 ORDER Service connection for cancer is denied. Service connection for hepatitis C is denied. Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran served on active duty from June 1971 to May 1972, including service in the Republic of Vietnam; he is presumed to have been exposed to herbicides coincident with his service. 2. The Veteran died in January 2011 at the age of 58. According to a copy of the Certificate of Death, the immediate cause of death was listed as end stage liver disease due to or a consequence of hepatic cirrhosis due to or a consequence of hepatitis C. 3. At the time of the Veteran’s death, service connection was in effect for coronary artery disease rated as 10 percent disabling. 4. Cancer was not shown in service, or to a compensable degree within one year of service; symptoms of cancer were not continuous since service. Cancer is not causally or etiologically related to service. 5. Hepatitis C was not shown in service, is not presumed to be related to service, and is not etiologically related to service. 6. Service-connected coronary artery disease did not have a material role in causing the Veteran’s death; the cause of his death – end stage liver disease due to or a consequence of hepatic cirrhosis due to or a consequence of hepatitis C – was not etiologically related to service. CONCLUSIONS OF LAW 1. Cancer was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.309 (2017). 2. Hepatitis C was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.309 (2017). 3. A service-connected disability did not cause, or contribute substantially or materially, to the cause of the Veteran’s death. 38 U.S.C. §§ 1310, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2017). 4. The causes of the Veteran’s death (end stage liver disease due to or a consequence of hepatic cirrhosis due to or a consequence of hepatitis C) were not incurred in or aggravated by active service, cannot be presumed to have been incurred therein, and are not related to a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1310, 5103A, 5103(a) (2012); 38 C.F.R. §§ 3.102, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, at the time of the Veteran’s death, he had claims pending for cancer and hepatitis C. Within a year of his death, his surviving spouse filed a request with the RO to be substituted as the appellant. The RO granted her request to be substituted (under 38 U.S.C. § 5121A) in his appeal and informed her of the decision by a letter dated in November 2011. Service Connection for Cancer and Hepatitic C Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Malignant tumors are among these diseases. Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and 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). The enumerated diseases which are associated with herbicide exposure include prostate cancer, certain respiratory cancers, and soft tissue sarcomas. 38 C.F.R. § 3.309(e). The Veteran’s DD Form 214 reflects that he served in the Republic of Vietnam, but hepatitis C infection and liver disease are not among the presumptive disorders. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran’s death certificate states that the cause of death was end-stage liver disease due to or as a consequence of hepatic cirrhosis due to or as a consequence of hepatitis C. Treatment notes also confirm that he had a diagnosis of hepatitis C. However, the competent evidence does not reflect that hepatitis C was a result of service. The appellant argues that the Veteran was infected with hepatitis C through jet air gun inoculations in service or, in the alternative, that hepatitis C was related to herbicide exposure. In a May 2017 medical opinion, the clinician reflected that to date, no single case or case series of hepatitis C transmission caused by jet air gun inoculations had been described in the medical literature. Further, the clinician noted that a study describing mass inoculations with jet air guns did not find a single case of hepatitis C transmission out of 22,714 subjects. Moreover, the examiner indicated that the conclusion that hepatitis C was transferred via jet injection because research has shown that hepatitis B can be is premature. Finally, the examiner opined that it was less likely than not that the Veteran’s hepatitis C began during service as there was no known connection between Agent Orange and hepatitis C. In support of the opinions, the examiner cited several references from the medical literature. As to the claim for cancer, service treatment records (STRs) are silent for a diagnosis of cancer and as noted only certain types of cancer are presumed related to herbicide exposure. A December 2010 VA treatment note shows that the Veteran reported that he had a cancer diagnosis, and a January 2011 VA treatment note documents “cancer with mets.” However, the type of cancer is not documented in the record. The death certificate states that the Veteran had liver disease, but does not identify cancer as the disease or refer to any other type of cancer the Veteran may have had. The appellant has also not provided any details as to his specific type of cancer including in lay statements. A May 2017 VA opinion indicated that without more information, any judgment about the existence or role of cancer in the Veteran’s disease process would be speculative. Considering the above, the Board is unable to find that the Veteran’s cancer is service-connected. In her May 2012 notice of disagreement, the appellant asserts that a VA physician, Dr. TK advised the Veteran that he could have contracted hepatitis C if he had been given air shots. However, there is no full opinion or rationale from Dr. TK in the record. Therefore, the Board assigns this opinion less probative weight. The only remaining evidence in support of these claims are the appellant’s own assertions but she has not offered any particular evidence in support of the claim. Lay persons are competent to report symptoms because this requires only personal knowledge as it comes through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, they are not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the record and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to the lay statements. As such, the medical records are more probative than the appellant’s lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable and the appeal is denied. Service Connection for Cause of Death In addition to substituting into the Veteran’s claim, the appellant filed a claim for service connection for the cause of the Veteran’s death in her own right. To establish service connection for the cause of a veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but, rather, a causal connection must be shown. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). In such a situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. The basic facts are not in dispute. The Veteran died in January 2011 and his immediate cause of death was listed as end stage liver disease due to or a consequence of hepatic cirrhosis due to or a consequence of hepatitis C. There were no other significant conditions contributing to death noted on the death certificate. As discussed above, the Veteran’s hepatitis C is not a service-connected disability, and the evidence does not otherwise show that his liver disease was incurred in service. The only service-connected disability at the time of death was coronary artery disease. The appellant’s primary contention is that the Veteran experienced a cardiac arrest prior to death that was associated with his service-connected coronary artery disease. VA treatment notes indicate that he was admitted in January 2011 with a diagnosis of cardiac arrest due to cardiac dysrhythmia secondary to advanced liver failure. He was admitted at 21:11 and pronounced dead at 23:22 with his condition immediately prior to death noted to be status post cardiac arrest, liver failure, and respiratory failure. Nevertheless, there is no indication in the medical evidence that the Veteran’s coronary artery disease played a role in the cardiac arrest that occurred prior to death. For definitional purposes only, coronary heart disease is a narrowing of the small blood vessels that supply blood and oxygen to the heart. https://medlineplus.gov/ency/article/007115.htm. Dysrhythmia is a disorder of the heart rate (pulse) or heart rhythm caused by problems with the heart’s electrical conduction system. https://medlineplus.gov/ency/article/001101.htm. While the cardiac dysrhythmia was specifically identified by medical staff treating the Veteran at the time of death, his coronary artery disease was not noted by either the medical staff or by the physician who completed the death certificate. While the appellant, as a lay person, is competent to report what comes to her through her sense, she is not competent to provide a complex medical opinion, such as what caused the Veteran’s death. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, her opinion alone is insufficient to establish a relationship between the Veteran’s coronary artery disease and his death. As noted above, to establish service connection for the cause of a veteran's death, the evidence must show that a service-connected disability either caused or contributed substantially or materially to cause death. In this case, other than the appellant’s lay statements, the evidence does not show that service-connected coronary artery disease was the immediate or underlying cause of his death or that coronary artery disease was etiologically related to his death. In addition, a preponderance of evidence shows that coronary artery disease was not a contributory cause of his death. Therefore, the appeal is denied. Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel