Citation Nr: 20004843 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 18-37 755 DATE: January 22, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in February 2018; his death certificate lists the immediate cause of death as hepatocellular carcinoma. Other significant conditions contributing to death but not resulting in the underlying cause were listed as hepatitis B, liver cirrhosis, hypertension, diabetes mellitus, chronic kidney disease, and portal hypertension. 2. At the time of death, the Veteran was not service connected for any disabilities. 3. The Veteran’s death is not related to his military service. CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1968 to January 1971, to include service in Thailand from July 21, 1968, to July 13, 1969. He died in February 2018. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. This case was previously before the Board in June 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for cause of the Veteran’s death The appellant contends that the Veteran was exposed to Agent Orange during service, ultimately resulting in the Veteran’s death. See July 2018 Form-9. The Veteran’s death certificate lists the immediate cause of his February 2018 death as hepatocellular carcinoma. Other significant conditions contributing to death but not resulting in the underlying cause were listed as hepatitis B, liver cirrhosis, hypertension, diabetes mellitus, chronic kidney disease, and portal hypertension. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the 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, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). For the reasons set forth below, the Board finds that service-connection for cause of the death is not warranted. At the time of the Veteran’s death he was not service-connected any disabilities. See August 2017 Rating Code Sheet. Service treatment records show no complaints of, treatment for, or diagnosis of hepatocellular carcinoma, hepatitis B, liver cirrhosis, hypertension, diabetes mellitus, chronic kidney disease, or portal hypertension. In June 2014, the Veteran’s VA treating physician opined that it is reasonably likely that the Veteran’s hepatitis B was in some way related to his military service. As noted in the June 2019 Board remand, the Board has found this opinion to be speculative. As such, the Board assigns this opinion no probative value. In October 2019 a VA examiner opined that it was less likely than not that the Veteran’s claimed hepatitis B was incurred in or caused by his military service. The examiner reviewed the Veteran’s medical records and noted that there was no competent medical evidence to support exposure to events or activities while in the military to cause hepatitis B. The examiner explained that Hepatitis B can be acquired sexually, from sharing needles, or accidental needle sticks. The Veteran’s history did not indicate that any of the above took place while he was in the military. The examiner considered the June 2014 by the Veteran’s treating physician, and opined that it was speculative. The October 2019 VA examiner further reasoned that the Veteran’s service treatment records showed no signs or symptoms related to hepatitis. With respect to the Veteran’s cause of death is related to in-service exposure to herbicide agents, in a September 2019 memorandum, VA determined that a data match with the National Personnel Records Center did not show the Veteran was exposed to herbicide agents. U.S. Army personnel records and service treatment records reflected no evidence of exposure to herbicides. It was noted that the Veteran was in Thailand from July 21, 1968 to July 13, 1969; however, his military occupational specialty of a clerk typist did not put him at or near the perimeter. VA considered a March 2015 VA hearing loss examination in which the Veteran reported noise exposure on the flight line; however, personnel records did not confirm he was on or near the perimeter. The appellant has not otherwise provided evidence that the Veteran may have been exposed to herbicide agents during service. Based on the foregoing, 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. While the evidence of record shows that the Veteran died from hepatocellular carcinoma, with other significant conditions contributing to death but not resulting in the underlying cause of death, including hepatitis B, liver cirrhosis, hypertension, diabetes mellitus, chronic kidney disease, and portal hypertension, the probative evidence of record demonstrates that none of the above-referenced disorders was incurred in service or is otherwise related to service. Moreover, the record does not show that the Veteran had any service-connected disabilities that caused or materially contributed to the Veteran’s death. The Board finds that the October 2019 VA opinion is highly probative with respect to service connection for the cause of death and is adequately based on objective findings as shown by the record. Accordingly, the Board concludes that the medical opinion rendered was based upon a full and accurate factual premise, including the Veteran’s history, and provided a thorough and adequate rationale for the opinion given. Barr v. Nicholson, 21 Vet. App. 311 (2007); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that the October 2019 VA opinion provides competent, credible, and probative evidence which shows that the Veteran’s cause of death, to include hepatitis B is not related to service. Furthermore, no contrary probative medical opinion is of record. The Board notes that the appellant asserts that the Veteran was exposed to Agent Orange during service, which caused hepatocellular carcinoma, ultimately resulting in the Veteran’s death. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to” and a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran’s service and the cause of the Veteran’s death to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Here, while the appellant is competent to describe symptoms of the Veteran’s disabilities she may have observed, the Board accords her statements regarding the cause of the Veteran’s death no probative value as the appellant is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v, Brown, 7 Vet. App. 134, 137 (1994). In this regard, the cause of the Veteran’s death requires specialized medical knowledge, education, and training, which the appellant is not shown to have. Therefore, the Board accords greater probative weight to the VA examiner’s opinion than the appellant’s lay assertions as to cause of the Veteran’s death. Accordingly, upon a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. The weight of the lay and medical evidence of record is against a finding of a a causal connection between the Veteran’s military service and his death. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim for service connection for the cause of the Veteran’s death must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.