Citation Nr: 21004251 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-22 215A DATE: January 26, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran’s certificate of death shows that he died in October 2009 due to liver cancer with no contributory causes of death listed. 2. The Veteran was not rated as totally disabled since his release from active duty, or for a period of at least 10 years immediately preceding his death. 3. The Veteran’s cause of death, due to liver cancer, also diagnosed as hepatocellular cancer, is not etiologically related to service and his service-connected disabilities did not contribute substantially or materially to cause death, and did not aid or lend assistance to the production of death. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2018). 2. The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1131, 1310 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from active duty from June 1969 to March 1972. He died in October 2009. Pursuant to a December 2016 Board decision, the appellant has been recognized as his surviving spouse. The appellant testified at an August 2020 Board videoconference hearing. The hearing transcript is of record. 1. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 Under 38 U.S.C. § 1318, DIC benefits are payable to the surviving spouse of a veteran where it is shown that the veteran's death was not the result of willful misconduct, and at the time of death the veteran was receiving or was entitled to receive compensation for service-connected disability that was: (1) rated by VA as totally disabling for a period of at least 10 years immediately preceding death; (2) rated by VA as totally disabling continuously since the Veteran's release from active duty and for at least five years immediately preceding death; or (3) rated by VA as totally disabling for a period of not less than one year immediately preceding death if the veteran was a former prisoner of war. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22. The record shows that the Veteran was discharged from active duty service in 1972 and was not in receipt of a total disability rating immediately following that discharge. The Veteran was in receipt of a combined 70 percent rating from October 1999. Therefore, the Board finds that he was not rated as totally disabled for a period of at least 10 years immediately preceding his death. The record does not establish that the Veteran was a prisoner of war. Accordingly, entitlement to DIC under 38 U.S.C. § 1318 is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to service connection for the cause of the Veteran's death DIC benefits are also payable to the surviving spouse of a veteran if the veteran died from a service-connected disability 38 U.S.C. §§ 1310. 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 death, or aided or lent assistance to the production of death. See 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). The appellant contends in August 2020 hearing testimony that the Veteran’s death was due to hepatocellular cancer which was caused by diabetes mellitus, hepatitis C, and Agent Orange exposure in service. Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309 (e). Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. Id at Note 3. The National Defense Authorization Act for Fiscal Year 2021 has added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include parkinsonism, bladder cancer, and hypothyroidism. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). VA regulations specify that the last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307 (a) (6)(iii). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). During the Veteran's lifetime, he was service connected for sinus tachycardia, diabetes mellitus with erectile dysfunction, peripheral neuropathy, and hypertension. Diabetes mellitus and the Veteran’s secondary service-connected disabilities were based on presumptive exposure to an herbicide agent in service. Thus, he was presumed to have been exposed to an herbicide agent in service. The Veteran was not service connected for hepatitis C during his lifetime. Service connection for hepatitis C was denied in an unappealed June 2003 rating decision. The Veteran's certificate of death shows that he died in January 2014 due to liver cancer with no contributory causes of death listed. VA treatment records identified a diagnosis of hepatocellular cancer preceding his death. As the cause of death due to liver cancer or hepatocellular cancer is not included in the indicated diseases associated with exposure to an herbicide agent, presumptive service connection is not warranted. See 38 C.F.R. § 3.309 (e). Even though presumptive service connection is not warranted, the appellant is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). The Board finds that the weight of the evidence shows that the Veteran's cause of death was not incurred in service, and is not related to herbicide agent exposure in service. Service treatment records do not identify any symptoms related to cancer in service. The Veteran was first diagnosed with hepatocellular cancer and liver cancer decades after service separation. Thus, the Board finds that symptoms of hepatocellular cancer were not chronic in service and continuous since service separation and cancer did not manifest to a compensable degree within one year of service separation. Insomuch as the appellant contends that hepatocellular cancer is related to hepatitis C, the Board finds that the Veteran was not service connected for hepatitis C, and hepatitis C was not incurred in service. He was not diagnosed with hepatitis C in service and VA treatment records show that he was first diagnosed with hepatitis C in 2000, decades post service. Liver cancer is not shown to be related to service, or any herbicide exposure in service. While the appellant submitted a medical journal article in September 2020 which implicated Agent Orange exposure as a “possible” risk factor for development of hepatocellular cancer, the same article stated that no studies that have evaluated Agent Orange exposure as a risk factor for hepatocellular cancer. The appellant also submitted an article in March 2020, which indicated that a diagnosis of diabetes correlated to a three-fold risk of the development of hepatocellular cancer. However, the Board finds that the referenced texts, which refers only to an "increased risk" or statistical correlation between diabetes and hepatocellular cancer does not tend to establish a causal relationship. The Board finds that the statistical correlations referenced by the appellant are too speculative to establish a causal relationship between the Veteran’s cause of death to either Agent Orange or diabetes mellitus. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The referenced studies, which do not address the facts of this particular Veteran's case with a sufficient degree of medical certainty, would not amount to competent medical evidence of causality. See Sacks v. West, 11 Vet. App. 314 (1998); Beausoleil v. Brown, 8 Vet. App. 459 (1996). The appellant has not otherwise submitted evidence outside of her lay assertions, which the Board finds she is not competent to offer, which tend to link the Veteran's cause of death due to hepatocellular liver cancer to Agent Orange exposure or diabetes mellitus. (Continued on the next page)   A service-connected disability did not contribute substantially or materially to cause death, or aid or lend assistance to the production of death. See 38 C.F.R. §§ 3.303(d), 3.312(c). At the time of the Veteran's death, he was service connected for sinus tachycardia, diabetes mellitus with erectile dysfunction, peripheral neuropathy, and hypertension. The evidence of record shows that the Veteran's primary cause of death was due to liver cancer and there is no evidence of record which shows that a service-connected disability, to include diabetes mellitus, contributed substantially or materially to cause death, or aided or lent assistance to the production of death. Accordingly, the Board finds that the weight of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christine C. Kung 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.