Citation Nr: 21072923 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-22 581 DATE: December 6, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to herbicide agents. 2. The Veteran's death certificate reflects that he died in June 2015 as a result of pulmonary fibrosis with pneumothorax as a significant contributing condition. 3. During his lifetime, the Veteran was service connected for ischemic heart disease, type II diabetes mellitus, bilateral hearing loss, and tinnitus. 4. The preponderance of the evidence is against a finding that the Veteran's cause of death was related to any injury or disease incurred during service, or that any service-connected disabilities caused or contributed to his death. CONCLUSION OF LAW The criteria for an award of service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 1967 to February 1970, to include service in Vietnam. His decorations included the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Bronze Star Medal. Unfortunately, he died in June 2015. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. In July 2021, the appellant testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Entitlement to service connection for the cause of the Veteran's death. The appellant seeks to establish service connection for the cause of the Veteran's death. She believes that the Veteran's service-connected heart disability and/or type II diabetes mellitus were of such severity as to have been a contributory cause of death. Alternatively, she contends that the Veteran's pulmonary fibrosis was the result of his presumed in-service exposure to herbicide agents in Vietnam. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide agent exposure. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumptions, service connection for a disability claimed as due to exposure to herbicide agents may be established on a direct basis by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection for the cause of a veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability 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). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases or injuries primarily causing death. 38 C.F.R. § 3.312(c)(3). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For the reasons set forth below, the Board finds that the preponderance of the evidence is against the appellant's claim. The record reflects that the Veteran's cause of death was pulmonary fibrosis with pneumothorax listed as a significant contributing condition. See June 2015 Death Certificate. At the time of his death, he was service connected for ischemic heart disease, type II diabetes mellitus, bilateral hearing loss, and tinnitus. The Veteran's service treatment records are entirely devoid of any reference to respiratory problems. His lungs were found to be normal both at the time of his service enlistment examination in July 1967 and at the time of his examination for separation from service in February 1970. A March 2018 VA examiner opined that it was less likely than not that a service-connected disability caused or contributed substantially or materially to the Veteran's death. The examiner noted that the Veteran was service connected for ischemic heart disease, type II diabetes mellitus, bilateral hearing loss, and tinnitus. The examiner further noted that the death certificate showed that the Veteran's cause of death was listed as pulmonary fibrosis, and that shortly before his death, the Veteran had been diagnosed with (severe oxygen dependent) chronic obstructive pulmonary disease (COPD), diffuse idiopathic pulmonary fibrosis, chronic back pain, steroid induced hyperglycemia, hypospadias, bronchial obstruction, exposure to Agent Orange, acute pneumothorax (requiring chest tube placement), and acute chronic respiratory failure (requiring intubation and mechanical ventilation). The examiner stated that a review of the human medical research literature did not support ischemic heart disease or type II diabetes mellitus as causes or aggravators of pulmonary fibrosis. The examiner noted that the precise factors that initiate the histopathologic process observed in idiopathic pulmonary fibrosis are unknown, but that certain risk factors are associated with pulmonary fibrosis, including cigarette smoking, viral infection, chronic aspiration, genetic predisposition, certain drugs (though none that the Veteran was taking), and environmental pollutants, not including Agent Orange. The March 2018 VA examiner also opined that it was less likely than not that the Veteran's exposure to herbicide agents, including Agent Orange, during his active military service contributed to his pulmonary fibrosis. Although conceding the Veteran's exposure to herbicide agents during service in Vietnam, the examiner found, following a review of the mainstream human medical research literature, that Agent Orange exposure was not a cause or aggravator of COPD or pulmonary fibrosis. The examiner noted that acute non-cancerous respiratory disorders, such as pulmonary fibrosis, can be increased in frequency and severity when the normal defense mechanisms of the lower respiratory tract are compromised, and that exposure to chemicals that affect those mechanisms could exacerbate respiratory disorders, but found that there was no evidence that herbicide agents used in Vietnam altered such defense mechanisms. The Board affords great probative weight to the March 2018 VA examiner's opinion as he considered the pertinent evidence of record and provided a rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has considered the lay evidence of record, including the appellant's statements suggesting a relationship between the Veteran's exposure to herbicide agents and his service-connected disabilities and pulmonary fibrosis. While the appellant is competent to report what she observed about the Veteran's health or what his doctors conveyed to her, she is not shown to have the specialized training necessary to offer a competent opinion on such a complex matter as the cause of the Veteran's death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board accords more probative weight to the March 2018 VA examiner's opinion. In this regard, the Board acknowledges that the appellant testified at the July 2021 Board hearing that a doctor who treated the Veteran at the hospital "could not definitely say, but felt like [the Veteran's death] may have been Agent Orange related." The doctor in this case has apparently (according to the appellant) disputed that she made that statement. That fact notwithstanding, even assuming the accuracy of the appellant's report, the statement she has described, framed in terms of what "may have been," is too speculative to support an award of service connection. The Board also acknowledges that the appellant testified at the hearing that "two of the doctors had stated that more than likely with the heart problems that is what had caused the lung problems . . . and . . . they thought it was connected with Agent Orange, more than likely." Because no such medical statement appeared in the record, and because a statement such as that, without any supporting rationale, is insufficient to support an award of service connection, the record was held open for a period of 30 days to afford the appellant an opportunity to submit a written medical opinion in support of her appeal. Unfortunately, no new evidence has since been received. While the Board is sympathetic to the appellant's loss, it must rely on the competent, credible, and probative evidence in making its determination. In the present case, the competent and most probative evidence fails to reach the level of equipoise in showing a link between the Veteran's active duty service and/or his service-connected disabilities and the pulmonary fibrosis that caused his death, either directly or contributorily. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.