Citation Nr: 20041968 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 16-18 176 DATE: June 19, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDING OF FACT 1. The Veteran died in November 2001, and his death certificate lists the immediate cause of death as cardiopulmonary arrest due to metastatic carcinoid tumor. 2. At the time of his death, the Veteran was service connected for posttraumatic stress disorder (PTSD) and a shell fragment wound of the back. 3. The preponderance of the evidence of record fails to demonstrate that a service-connected disability caused or substantially contributed to the Veteran’s death, or that the Veteran’s death was otherwise related to service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to December 1970, and was the recipient of the Combat Infantryman Badge. He regrettably passed away in November 2001, and the Appellant is his surviving spouse. The Appellant seeks entitlement to service connection for the cause of the Veteran’s death, and she has advanced several contentions which the Board will address in this decision. Specifically, the Appellant contends that the Veteran’s immediate cause of death, cardiopulmonary arrest, was due to a myocardial infarction which is now recognized as presumptively associated with herbicide agent exposure as a result of his service in the Republic of Vietnam. See 38 C.F.R. § 3.309(e). In the alternative, she contends that the Veteran’s metastatic neuroendocrine cancer was metastasized from an insulin-secreting B-cell tumor. In this regard, chronic B-cell leukemias are presumptively associated with exposure to herbicide agents. Id. Furthermore, the Appellant contends that, even if the Veteran’s cause of death was not presumptively related to his exposure to herbicide agents, it was nevertheless directly related to such exposure. Finally, in a February 2020 filing, she noted that the Veteran had a history of hepatitis B dating back to his service in the Republic of Vietnam, and she indicated that his cancer stemmed from his hepatitis B. Service connection for the cause of a Veteran’s death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability is considered the principal cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or 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. Determinations as to whether service connection may be granted for a disability that caused or contributed to the Veteran’s death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. 38 U.S.C. § 1310. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, a veteran who, during active 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. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran’s service personnel records confirm that he served in the Republic of Vietnam during the requisite time period; therefore, he is presumed to have been exposed to herbicide agents. Certain diseases, including ischemic heart disease, soft-tissue sarcomas (such as leiomyosarcoma), and chronic B-cell leukemias, shall be service-connected if the veteran was exposed to an herbicide agent during active service even though there is no record of such disease during service, provided that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e). Even if a disease is not listed as one of the diseases presumptively associated with exposure to herbicide agents, the United States Court of Appeals for the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As noted above, the Veteran died in November 2001. His death certificate lists the immediate cause of death as cardiopulmonary arrest due to metastatic carcinoid tumor. At the time of his death, the Veteran was service connected for PTSD and a shell fragment wound of the back. His private treatment records show that he was diagnosed with metastatic neuroendocrine cancer of the abdomen in 1999. A December 1999 private treatment record noted the Veteran’s report of hepatitis B dating back to 1968. In March 2000, the Veteran filed a claim for service connection for his cancer, alleging that such was due to his presumed exposure to herbicide agent while serving in the Republic of Vietnam. A July 2000 private treatment record noted that the Veteran suffered from a metastatic endocrine tumor to the liver and abdomen. His private treatment provider noted that, after discussions with another doctor, there was no test to prove or disprove that the Veteran’s cancer was due to chemical exposure. A September 2000 VA examination noted that the Veteran’s metastatic neuroendocrine cancer was found in his liver, pelvis, mesentery, and left iliac lymphatic chain. No opinion was offered as to whether such was related to his military service, to include his presumed exposure to herbicide agents. In her April 2002 notice of disagreement, the Appellant contended that the Veteran had contracted hepatitis B as a result of his exposure to herbicide agents and an in-service blood transfusion, and that his cancer stemmed from his hepatitis B. In her July 2002 substantive appeal, the Appellant argued that the Veteran contracted hepatitis B in 1968 while serving in the Republic of Vietnam, and that is hepatitis B led to his cancer of the liver. An April 2003 VA examiner noted the Appellant’s contention that the Veteran’s hepatitis B had a role in his cause of death. After reviewing the pertinent evidence of record, including his post-service treatment records, the examiner concluded that, while the Veteran had carcinoma in the abdominal cavity involving several organs, including the liver, there was nothing to indicate that the tumor originated in the liver and was possibly related to hepatitis B. Furthermore, the examiner noted that, although the Veteran had been seen by several specialists, none mentioned that he experienced primary carcinoma of the liver. Pursuant to a June 2004 remand, the agency of original jurisdiction (AOJ) obtained another opinion in November 2004. The opinion provider acknowledged the Veteran’s pertinent medical history, including his diagnosis of a neuroendocrine tumor, metastatic carcinoid, and a gastrointestinal stomal tumor, as well as the fact that he learned that he had hepatitis B between September 1991 and August 1993. At the time, it was speculated that the Veteran contracted hepatitis B after an in-service shrapnel wound. The opinion provider first noted that, while gastrointestinal stomal tumors were sometimes misdiagnosed as leiomyosarcoma, such were not sarcomas and they were not known to be related to herbicide agent exposure. The opinion provider also noted that the Veteran’s tumor likely started in his stomach, as opposed to his liver, and that it was unlikely that his hepatitis B either caused or aggravated his fatal cancer. As to whether his fatal cancer was related to his presumed exposure to herbicide exposure, the opinion provider opined that such was less likely than not related to herbicide agent exposure because neither carcinoid tumors nor gastrointestinal stomal tumors were known to be related to herbicide agent exposure. As for the Veteran’s hepatitis B, the opinion provider concluded that such did not cause or contribute substantially or materially to his death; that it did not combine with the principal cause of death to cause death; that it did not aid or lend assistance to the production of death; that it did not result in debilitating effects and general impairment of health to an extent that it rendered him materially less capable of resisting the effects of his primary cause of death; and that it was not of such a severity that it had a material influence in accelerating his death. The opinion provider reasoned that the Veteran has normal liver function tests indicating that his infection had resolved with no activity when he was diagnosed with cancer, and there was no evidence of previous damage from the infection. In a May 2005 decision, the Board denied the Appellant’s claim for service connection for the cause of the Veteran’s death, finding that the Veteran’s metastatic carcinoma was not due to his active duty service, to include his presumed exposure to herbicide agents; and that a service-connected disability did not cause or contributed substantially or materially to the Veteran’s cause of death. In her July 2014 petition to reopen, the Appellant argued that the Veteran’s cause of death was due to ischemic heart disease, a disability presumptively associated with herbicide exposure under 38 C.F.R. § 3.309(e). Along with her October 2014 notice of disagreement, the Appellant has submitted a medical article that discusses islet cell tumors of the pancreas, and the fact that 40 percent originate from B-cells, secrete insulin, and are associated with fasting hypoglycemia. Another article submitted discusses the etiology of cardiopulmonary arrest. In November 2018, the Appellant testified before the undersigned Veterans Law Judge and argued that the Veteran’s cancer developed as a result of his exposure to herbicide agents while serving in the Republic of Vietnam. In April 2019, she submitted a May 2016 Internet article which noted that VA had recognized that herbicide agent exposure was responsible for the health ailments of over 2100 Air Force servicemembers that worked on or around C-123 aircraft. In September 2019, the Veteran submitted an article which noted that multiple endocrine neoplasia were rare disorders of the endocrine system, and that they made patients more likely to develop benign or malignant tumors in the endocrine glands and other parts of the body. In connection with the Board’s June 2019 remand, a VA medical opinion was obtained in September 2019. After noting that he had reviewed the Veteran’s claims file, the opinion provider stated that no hepatic symptoms or conditions were noted in the Veteran’s service treatment records. The opinion provider then provided an extensive and thorough summary of the Veteran’s post-service treatment records, beginning in April 1985, as well as the Appellant’s arguments and the evidence she had submitted in support of her claim for service connection for the cause of the Veteran’s death. Ultimately, the opinion provider opined that it was less likely than not that the Veteran’s immediate cause of death, listed as cardiopulmonary arrest on his death certificate, represented a manifestation of ischemic heart disease, to include a myocardial infarction or coronary artery disease, as contemplated under 38 C.F.R. § 3.309(e). The opinion provider noted that there was no competent medical evidence indicating that the Veteran had a myocardial infarction or coronary artery disease, and that prior stress tests were perfectly normal. Further, the examiner noted that coronary artery disease had not been demonstrated via angiography or heart catheterization. Furthermore, the examiner opined that the Veteran’s fatal metastatic carcinoma was less likely than not a chronic B-cell leukemia as contemplated under 38 C.F.R. § 3.309(e). The opinion provider noted that the Veteran did not have a blood cancer such as leukemia, but rather a neuroendocrine cancer which was completely different from B-cell leukemia. Finally, the opinion provider opined that the Veteran’s fatal metastatic carcinomas, identified as a neuroendocrine tumor and gastric stromal tumor with metastatic disease to the liver, were not related to his exposure to herbicide agents because they had not been identified by VA as being related to herbicide agent exposure. In connection with the Board’s January 2020 remand, a new VA medical opinion was obtained in February 2020 to address whether the Veteran’s fatal metastatic carcinomas could be directly related to his exposure to herbicide agents, notwithstanding the application of any presumptions. Ultimately, the opinion provider concluded that the Veteran’s metastatic carcinoid tumors were less likely than not related to his herbicide exposure. The opinion provider indicated that it was not clear what caused carcinoid tumors, and that they generally occurred when a cell developed a mutation in its DNA. The mutations allowed the cell to continue to grow and divide when healthy cells would normally die. The examiner noted that neuroendocrine cells were found in various organs throughout the body, and the factors that increased the risk of carcinoid tumors included older age, sex, and family. However, the opinion provider noted that there was no evidence in the claims file indicating that the Veteran’s carcinoid tumors developed as a result of his exposure to herbicides, and that herbicide exposure had not been recognized as a risk factor in the development of carcinoid tumors. Based on the evidence of record, the Board concludes that the preponderance of the evidence weighs against a finding that a service-connected disability caused or substantially contributed to the Veteran’s death. Significantly, there is little probative evidence of record favoring a finding that such a relationship exists. To the contrary, the most probative evidence of record includes the April 2003, November 2004, September 2019, and February 2020 VA medical opinions. When taken together, these opinions adequately address the issues raised in this appeal, including the issues raised by the Appellant. For example, both the April 2003 and November 2004 VA medical opinions adequately address the theory that the Veteran’s cancer may have stemmed from his contraction of hepatitis B during his military service. The November 2004 opinion provider provides a clear explanation as to why the Veteran’s hepatitis B did not cause or contribute substantially or materially to his death. The November 2004 and September 2019 VA medical opinions provide clear conclusions as to whether the Veteran’s immediate and underlying causes of death constituted leiomyosarcoma, ischemic heart disease, and/or chronic B-cell leukemia under 38 C.F.R. § 3.309(e), and both the November 2004 and February 2020 VA medical opinion provide clear conclusions and discussions surrounding the Appellant’s claim that the Veteran’s cancer was otherwise related to his in-service exposure to herbicide agents. These opinions are probative because they are based on a complete review of the claims file, including the medical articles submitted by the Appellant, and they provide explanations that contains clear conclusions and a supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). These opinions also reflect consideration of the pertinent evidence of record, as well as the various theories of entitlement; nevertheless, they provide detailed and reasoned opinions against her claims. As for the Appellant’s contentions, although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matter of whether the Veteran’s cause of death is related to his military service, to include his presumed exposure to herbicide agents, is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Specifically, the questions raised involve medical subjects concerning internal physical processes extending beyond an immediately observable cause-and-effect relationship. The Appellant is not shown to have the necessary training and expertise to provide a competent opinion on the issues raised in this appeal. With regard to the articles submitted by the Appellant, the Board finds that they are less probative than the VA medical opinions of record as the treatise evidence does not contain information specific to this Veteran and his own medical history, whereas the VA medical opinions are informed by the Veteran’s personal history and disability picture. The Board recognizes the Veteran’s honorable service to this county, to include combat service in Vietnam, and is sympathetic to the Appellant’s claim. Absent probative evidence demonstrating that the Veteran’s cause of death was at least as likely as not related to his military service, to include his exposure to herbicide agents, the evidence of record is against the claim. As such, reasonable doubt does not arise, and the Appellant’s claim for service connection for the cause of the Veteran’s death must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.