Citation Nr: 21067644 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 14-34 677A DATE: November 4, 2021 ORDER Entitlement to service connection for the cause of the veteran's death is denied. FINDING OF FACT The weight of the evidence is against a finding that the veteran's death was proximately due to or the result of his period of service, to include his exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1959 to October 1959, and April 1962 to October 1981, with service in Vietnam. He died in August 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals(Board) on appeal from a May 2012 rating decision. The appellant testified at a Board hearing in November 2017. In a September 2018 decision the Board reopened and remanded the previously denied claim for further development. The Board remanded this matter again in June 2021 for additional development. Such has been completed and this matter is returned to the Board for further consideration. Entitlement to service connection for cause of the Veteran's death Dependency and indemnity compensation may be awarded to a veteran's surviving spouse, children, or parents for death resulting from a service-connected disability. 38 U.S.C. § 1310 (West 2014); see also Hanna v. Brown, 6 Vet. App. 507, 510 (1994). Dependency and indemnity compensation benefits are thus predicated upon an adjudicatory finding that service connection for the cause of the veteran's death is warranted. Before an award of dependency and indemnity compensation may be made, therefore, service connection for the cause of the veteran's death must be established. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (West 2014); 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). Where a veteran served 90 days or more during a period of war and certain chronic diseases, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, a disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Secondary service connection may be established by a showing that a nonservice-connected disability is caused or aggravated (chronically worsened) by a service-connected disability beyond the normal progression of the disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection may be also granted on a presumptive basis for certain diseases, associated with exposure to herbicide agents. 38 U.S.C. § 1116 ; 38 C.F.R. § 3.307 (a)(6). If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops certain diseases to a compensable degree any time after such service, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). These diseases are AL amyloidosis; chloracne; type II diabetes; Hodgkin's disease; ischemic heart disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). Effective January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 added bladder cancer, hypothyroidism, and Parkinsonism to 38 U.S.C. § 1116 (a)(2) as a condition presumed to be caused by in-service herbicide exposure. Notwithstanding the foregoing, a Veteran may establish service connection with proof of direct causation. 38 U.S.C. § 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In claims for benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant asserts that the Veteran's hepatitis C is related to his service in Vietnam and contributed to his death. At her November 2017 hearing she testified that the Veteran was sent to Vietnam with an open wound from a knee surgery. She also indicated that he had heart problems beginning in the 1980s but at the time they didn't think to associate it with Agent Orange exposure. She testified that shortly before he died, had a hernia, and needed surgery, but heart specialist did not approve the procedure. She confirmed that the Veteran was diagnosed with Hepatitis C. She indicated that the Veteran was an alcoholic, but quit drinking for over 10 years. Transcript pg., 4-6. The Veteran's death certificate indicates that his immediate cause of death in August 2010 was cirrhosis of the liver. Private treatment records from shortly before the Veteran's death show a diagnosis of cirrhosis with portal hypertension secondary to hepatitis C and alcohol. Service treatment records (STRs) are negative for any issues with the Veteran's liver or heart. Repeatedly, examinations and reports of medical histories were negative for liver such as jaundice or hepatitis or heart issues including on entrance in April 1962, April 1965, July 1969, January 1973, and February 1974. He did endorse stomach, liver, or intestinal trouble in a September 1975 report of medical history without further elaboration on the nature of the trouble, but again denied jaundice or hepatitis. In May 1973 he was seen for chest pain with an impression of musculoskeletal pain, and no cardiovascular diagnosis made. In his October 1981 retirement examination and report of medical history he denied heart and liver trouble including hepatitis and his examination was normal including liver and his hear was regular rate and rhythm. However an ECG of October 1981 showed poor precordial right wave progression, otherwise unremarkable. Private treatment records from February 2003, July 2004, February 2005, and August 2006 showed that the Veteran was treated for pulmonary diseases including chronic obstructive pulmonary disease (COPD), emphysema, and bronchial asthma. Acute bronchitis was also treated in August 2005. He was also noted to have a diagnosis of glaucoma. However, he was not noted to have any liver disease or heart diseases diagnosed in any of these records. Evidence of liver or heart problems were not shown until 2010. In June 2010 he was admitted to the hospital progressively worsening edema of the lower extremities. He also was noted to have increasing dyspnea without chest pain. He had been recently diagnosed with a right inguinal hernia, but had not received cardiac clearance, and had not followed up with cardiovascular testing prior to planned surgery. His medical history was noted to include atrial fibrillation, COPD, hypertension, and glaucoma. He also gave a history of drinking several beers a day, from 6 to 8 per day, and he also had a decreased appetite. Labs showed hyponatremia and his assessment included differential diagnoses of hyponatremia includes secretion of inappropriate antidiuretic hormone versus low salt intake concomitantly with large amounts of water and alcohol intake, specifically beer versus edema related to cirrhosis and hypalbuminemia. Upon discharge later the same month his diagnosis was confirmed to be cirrhosis with portal hypertension secondary to hepatitis C and alcohol. He was also diagnosed with hyponatremia, COPD exacerbation, and hypertension. The hospital records noted CT scan findings of abnormal liver consistent with cirrhotic liver and portal venous hypertension. Also, echocardiogram showed nonconcentric LVE with an ejection fraction of 55 to 60 percent. On discharge he was given congestive heart failure instructions. Other treatment records from July 2010 through August 2010 addressed his disease progression prior to his death. In July 2010 he continued to show treatment for cirrhosis with portal hypertension, moderate to severe ascites, history of chronic alcohol and hepatitis C, COPD, chronic atrial fibrillation (A-fib), hypertension and hyponatremia. The records from July 2010 addressing abdominal distention and pain noted that he had alcoholism causing his cirrhosis. His history included COPD, hypertension, chronic atrial fibrillation, and hyponatremia. He was assessed with cirrhosis with portal hypertension, moderate to severe ascites, history of chronic alcohol and hepatitis C, COPD, chronic atrial fibrillation, hypertension, and hyponatremia. He underwent paracentesis at the end of July 2010 for ascites and his abdomen distension was noted to be causing a restrictive lung disease, resulting in shortness of breath. He was also seen by cardiology who recommended continuing medication for portal hypertension and A-fib. The records from August 2010 indicated that he was not a candidate for hemodialysis and was to be discharged for hospice care with a DNR. His prognosis was poor given his end stage liver disease. On August 12, 2010 he was described as being in end stage liver failure with hepatitis C and alcoholism with a medical history which continued to include A-fib, congestive heart failure, COPD, cirrhosis secondary to hepatitis C and alcoholism, and hypertension. He was noted to have last drank eight weeks earlier in these records addressing his end stage liver failure. Among the medical evidence there are private medical opinions from a private family doctor, Dr. T.D.B. The first opinion dated January 9, 2012 stated, "I feel this patient's condition is related to his military service and Agent Orange exposure." The second opinion dated January 12, 2013 stated, "I feel the Veteran's liver disease is most likely due to Agent Orange exposure in Vietnam and was a major contributing factor on his cause of death." No rationale was given for these opinions. In June 2019, a VA medical opinion was obtained, which included review of the record. The examiner determined that it was less likely than not that hepatitis was incurred in service, noting that hepatitis C was not diagnosed until 2002 which is over 20 years following separation from service (1981). The examiner further opined that there is no objective evidence from service or immediately after service demonstrating hepatitis. The examiner further opined that there was no objective evidence to suggest that hepatitis went unnoticed for decades. While the examiner provided adequate rationale to support a finding that hepatitis was not incurred in service, the examiner did not provide adequate rationale regarding whether the Veteran's hepatitis C was related to herbicide exposure in Vietnam. The examiner stated that herbicide exposure is not an established etiology of hepatitic disease in medical literature. However, the examiner failed to cite to the source of the medical literature to support this opinion, making this rationale inadequate. Additionally, the opinion regarding whether the Veteran had any heart disorder attributable to herbicide exposure was not supported by adequate rationale. The examiner stated that there was no evidence of ischemic heart disease (IHD) and further stated that there is insufficient evidence to establish a diagnosis of congestive heart failure (CHF). However the examiner did not address the etiology of other heart issues including a diagnosed atrial fibrillation (AFIB) or the fact that his surgeon did not want to perform hernia surgery unless he had cardiac clearance, which his heart specialist declined to do. Furthermore, the examiner did not address the findings of an abnormal heart rhythm noted in an October 1981 EKG showing poor precordial right wave progression, but otherwise unremarkable findings. This finding should be considered in addressing whether any diagnosed heart disorder may have been of in-service onset, not just due to herbicide exposure. An addendum opinion was obtained in July 2021 to further clarify these matters. The examiner stated that it is less likely than not that the Veteran's hepatitis C is due to herbicide exposure in Vietnam. The examiner explained that hepatitis C is spread through contact with blood from an infected person. Hepatitis C is not spread through herbicide exposure in Vietnam. The examiner included a citation to a CDC source to support this opinion. https://www.cdc.gov/hepatitis/hcv/index.htm. The examiner further discussed that there is no evidence of ischemic heart disease that is the primary cardiac disorder linked with herbicide exposure, noting that there is no evidence of ischemic heart disease in the Veteran's C-file; consequently, the Veteran does not have any heart conditions due to likely herbicide exposure. His heart history included an atrial fibrillation (A. fib/flutter), this is not considered IHD. The examiner further clarified it is less likely than not that there is any other identified disorder besides cirrhosis which contributed substantially to or materially to the Veteran's death, or combined to cause his death or aided or lent assistance to the production of his death. In the medical rationale the examiner noted that the Veteran's death was August 20, 2010 and the cause of death was listed as cirrhosis. There was no contributory factor of death listed. Private treatment records from shortly before the Veteran's death showed a diagnosis of cirrhosis with portal hypertension secondary to hepatitis C and alcohol. Upon review of the record, the Board finds that service connection for cause of the Veteran's death is not warranted. In making this finding, the Board lends the greatest probative value to the VA examiner opinions of June 2019 and the July 2021 addendum which addressed the deficiencies in the June 2019 opinion. These opinions determined that the Veteran's hepatitis C and cirrhosis was not incurred in service, nor was it caused by his herbicide exposure. These opinions were accompanied by adequate rationale, with the July 2021 addendum citing to CDC medical treatise evidence to support a finding that Agent Orange exposure did not cause his hepatitis C or cirrhosis. Regarding the heart disease to include congestive heart failure, the July 2019 VA examiner and July 2021 addendum confirmed that the Veteran did not have ischemic heart disease or congestive heart failure. The July 2021 addendum did confirm that the Veteran had a history of A-fib. However the July 2021 addendum clarified that it is less likely than not that there is any other identified disorder besides cirrhosis which contributed substantially to or materially to the Veteran's death, or combined to cause his death or aided or lent assistance to the production of his death. Thus to the extent that any discussion of the etiology of any heart disorder may have been inadequate it is immaterial as there was not found to be any contributing disorder besides the liver disease which contributed to the Veteran's death. The Veteran's records from June through August 2010 further support a finding that the Veteran's liver disease was the primary contributor to his death. The Board notes that the favorable opinions by the private medical provider Dr. T.D.B dated in January 2012 and January 2013 are without probative weight as they were not accompanied by rationale. In light of the foregoing, although the appellant may sincerely believe that the Veteran's death was caused by or contributed to by service, including herbicide exposure, for all the reasons noted above, the evidence of record demonstrates otherwise. Moreover, as a layperson, she is not competent to offer an opinion as to the cause of the terminal liver disease. Rather, this question requires application of medical training or expertise to all pertinent evidence due to the complex nature of the question of causation between the liver disease and the Veteran's service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, her lay assertions of medical etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). For all the foregoing reasons, the Board must conclude that the preponderance of the evidence is against the claim of service connection for the cause of the veteran's death. The benefit of the doubt doctrine is not for application where the clear weight of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. at 55 ; 38 U.S.C. § 5107 (b). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.