Citation Nr: 19150983 Decision Date: 07/01/19 Archive Date: 07/01/19 DOCKET NO. 15-23 527 DATE: July 1, 2019 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in December 2005; cardiorespiratory failure was listed as the immediate cause of death and hepatocellular cancer was listed as the underlying cause. 2. The Veteran had not established service connection for any disability at the time of his death. 3. The Veteran served in Vietnam during the Vietnam era; and is presumed to have been exposed to herbicides during that service. 4. The probative evidence of record indicates that the Veteran’s hepatocellular cancer first manifested many years after service, and is not causally or etiologically related to service, including exposure to herbicides. 5. A disability of service origin is not shown to have been causally or etiologically related to, or to have played any role in producing or hastening the Veteran’s death. 6. The Veteran did not have a pending claim for Department of Veterans Affairs (VA) benefits at the time of his death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1110, 1112, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. 2. The criteria for entitlement to accrued benefits are not met. 38 U.S.C. §§ 5107, 5110, 5121(a); 38 C.F.R. §§ 3.400, 3.1000(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from September 1963 to September 1966 and the United States Navy from March 1967 to March 1969. The Veteran received multiple awards and medals including the Vietnam Service Medal and the Vietnam Campaign Medal. The Veteran died in December 2005. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a VA Agency of Original Jurisdiction (AOJ). Service Connection Determinations as to whether service connection may be granted for a disability that caused or contributed to a Veteran’s death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred or aggravated during service if such diseases become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause of death or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. In this 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 itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). 1. Entitlement to service connection for the cause of the Veteran’s death The Appellant seeks service connection for the primary cause of the Veteran’s death, which she asserts was related to the Veteran’s service. In July 2015, the Appellant stated that the Veteran died in December 2005 of cardiorespiratory failure as a consequence of his hepatocellular cancer. The Appellant stated that the Veteran had told her that he had served in Vietnam, and she believed that the Veteran had been exposed to Agent Orange when he was in Vietnam. She stated that the Veteran did not drink alcoholic beverages, did not do drugs, and was not exposed to any other chemicals during his post-military career. The Veteran also had normal dietary habits, always stayed active and was not obese. In this case, the Veteran died in December 2005. The death certificate reflects that the immediate cause of death was cardiorespiratory failure and the underlying cause of death was hepatocellular cancer. The Veteran had not established service connection for any disability at the time of his death. The Appellant contends that service connection for the cause of the Veteran’s death is warranted on the basis that the Veteran, during service in the Republic of Vietnam, was exposed to Agent Orange and that he developed hepatocellular cancer, which led to his death. On this issue, the Veteran had active service in the Republic of Vietnam and is thus presumed to have been exposed to herbicide agents. As noted, the Veteran served in the United States Army from September 1963 to September 1966 and the United States Navy from March 1967 to March 1969. Military personnel records reflect that the Veteran served in the Republic of Vietnam from September 1965 to September 1966. Therefore, exposure to herbicide agents including Agent Orange in service is conceded. 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d). A Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6). The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam Era. 38 C.F.R. § 3.307(a)(6)(i). Regulations provide that if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne; type II diabetes mellitus, Hodgkin’s disease; multiple myeloma; Non-Hodgkin’s lymphoma; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (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. 38 C.F.R. § 3.309(e). The regulations do not include hepatocellular cancer. Through studies of the National Academy of Sciences, VA has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003). Thus, although the Veteran is presumed to have been exposed to herbicides, his hepatocellular cancer is not any of the enumerated disabilities, and service connection for such may not be presumed. Notwithstanding the provisions relating to presumptive service connection, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). The Veteran’s December 2005 death certificate, which notes that the immediate cause of the Veteran’s death was cardiorespiratory failure and the underlying cause of death was hepatocellular cancer, also notes that he died at a residence, and an autopsy was not performed. Post-service treatment records reflect a diagnosis of alcoholic cirrhosis of the liver from at least 1995, and a diagnosis of hepatocellular cancer from at least September 2005. A July 2000 VA treatment record reflect that the Veteran reported that he had cirrhosis from drinking, and he stated that he decreased his intake of alcohol to “every now and then.” A January 2003 VA treatment record reflects that the Veteran had been diagnosed with cirrhosis in approximately 1997 secondary to heavy alcohol use. In June 2003 a VA treatment provider noted that the Veteran had the aroma of stale alcohol on his breath. He initially denied drinking alcohol, but when told of the aroma, he admitted to drinking beer daily. June 2003 and December 2003 VA treatment records reflect that the Veteran had been advised of the risks of alcohol to his liver. August 2005 VA treatment records reflect that the Veteran had been diagnosed with alcoholic cirrhosis ten years earlier and had been negative for hepatitis B virus (HBV) and hepatitis C virus (HCV) in 2003. A VA treatment provider noted that the Veteran had a history of smoking more than forty packs of cigarettes per year and consumed more than fourteen alcoholic beverages per week. The Veteran reported that he was still drinking four to five beers per day and had smoked 30 packs per year. Prior to his death, VA treatment records show that in August 2005, the Veteran was seen for complaints of recently developing pain in the right upper quadrant (RUQ) of the abdomen for the past two weeks, which had been getting worse. The treatment provider noted that the Veteran was said to have alcoholic liver disease, although a liver biopsy had never been performed. The Veteran seemed to have had an episode of ascites some time ago. The Veteran continued to drink several beers a day. Physical examination revealed a visible and palpable mass in the RUQ of the abdomen, which was tender to palpation and had a loud bruit over it and was part of the Veteran’s liver. The assessment included alcoholic liver disease probably complicated by hepatocellular carcinoma. September 2005 VA treatment records reflect a diagnosis of hepatocellular cancer. The treatment provider noted that the Veteran had a large liver mass, in the setting of alcoholic cirrhosis, which was not operable, and the Veteran was not a transarterial chemoembolization (TACE) or transplant candidate. In February 2015, a private examiner opined that it was at least as likely as not that the Veteran’s hepatocellular cancer with subsequent cardiorespiratory failure was related to Agent Orange exposure while serving in the Navy in Vietnam. The examiner noted that the major risk factors for hepatocellular carcinoma include alcohol use, drug use, hepatitis, genetics, cirrhosis, smoking and obesity-related fatty liver disease. The examiner further noted that the Veteran did not drink alcohol, he did not smoke, he did not do drugs, he was not obese, and he was not exposed to other chemicals during his post military career, which his post-military treatment record corroborated. In January 2019, a VA Veteran Health Administration (VHA) expert opinion was obtained from a VA oncologist. The VHA examiner opined that the Veteran’s hepatocellular cancer was more likely from cirrhosis from alcoholic liver disease. The VHA examiner noted that the Veteran’s treatment records indicated that the Veteran had a history of alcoholic liver disease and cirrhosis for ten years prior to his diagnosis of hepatocellular cancer. The VHA examiner noted that alcohol related liver disease is the most prevalent type of chronic liver disease worldwide, accounting for 30 percent of hepatocellular carcinoma cases and hepatocellular cancer specific deaths. However, there was very little data concerning hepatocellular cancer and Agent Orange exposure. The examiner noted that a study done in U.S. veterans with chronic hepatitis C showed that Agent Orange exposure was less likely to be the cause of hepatocellular cancer and alcoholic liver disease appeared to be an independent risk factor. The VHA examiner noted that larger studies needed to be done in veterans with Agent Orange exposure and hepatocellular cancer. Based on the evidence as outlined above, the Board finds that the criteria for service connection for the cause of the Veteran’s death have not been met. As discussed, the Veteran had active service in the Republic of Vietnam and is thus presumed to have been exposed to herbicides. Therefore, exposure to Agent Orange in service is conceded. 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d). Post-service treatment records reflect a diagnosis of alcoholic cirrhosis of the liver from at least 1995, and a diagnosis of hepatocellular cancer from at least September 2005. The January 2019 VHA expert opinion establishes that the cause of the Veteran’s death was not related to service. The January 2019 VHA expert opinion is competent, credible and probative, and coupled with the other medical evidence of record including the VA treatment records and lay evidence, supports a conclusion that service connection for the cause of the Veteran’s death is not warranted. Further, the Board finds that the February 2015 private opinion lacks probative value in determining whether entitlement to service connection for the Veteran’s death is warranted. The private examiner did not discuss VA treatment records, which reflect that the Veteran was diagnosed with cirrhosis from approximately 1997 secondary to heavy alcohol use. Instead, the private examiner relied on the Appellant’s statements that the Veteran did not drink alcoholic beverages, which is contradicted by a review of the Veteran’s post-service treatment records. Notably, the post-service treatment records reflect that the Veteran reported a history of drinking more than fourteen alcoholic beverages per week and several months prior to his death had been drinking four to five beers per day. The medical records also reflect a long history of cigarette smoking by the Veteran which the private examiner also noted was a major risk factor for the development of hepatocellular carcinoma and which the examiner also erroneously reported a lack of history for the Veteran in that regard. In determining the weight assigned to the evidence, the Board looks at factors such as the health care provider’s knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, supra. In contrast, the January 2019 VHA expert opinion indicating that the Veteran’s hepatocellular cancer was more likely from cirrhosis due to alcoholic liver disease, was supported by a thorough analysis of the Veteran’s medical treatment records. Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding of entitlement to service connection for the cause of the Veteran’s death on any basis. Thus, the claim for service connection for the cause of the Veteran’s death is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accrued Benefits Claims for VA benefits do not survive a claimant’s death. However, a qualified survivor (including a spouse) may carry on the deceased veteran’s claim for benefits by submitting an application for accrued benefits within one year after the veteran’s death. 38 U.S.C. § 5121(a), (c); 38 C.F.R. § 3.1000. Accrued benefits are “periodic monetary benefits... to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death.” Id. An accrued-benefits claim incorporates any prior final adjudication on claims brought by a veteran, because it derives from the veteran’s claims. For a claimant to prevail in her accrued benefits claim, the record must show the following: (1) the Appellant has standing to file a claim for accrued benefits; (2) the Veteran had a claim pending at the time of his death; (3) the Veteran would have prevailed on his claim if he had not died; and (4) the claim for accrued benefits was filed within one year of the Veteran’s death. 2. Entitlement to accrued benefits The Appellant has standing as the Veteran’s surviving spouse to file a claim for accrued benefits. However, at the time of his death, the Veteran did not have any pending claims. The record shows that during his lifetime, the Veteran was not service-connected for any disabilities and had not filed any claims of entitlement to service connection for any disability. Based upon the evidence of record, the Board finds there was no pending claims or pending appeals from a VA decision of record at the time of the Veteran’s death. As there were no pending claims at the time of the Veteran’s death, the Appellant’s claim for accrued benefits is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.