Citation Nr: 21007737 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-05 779 DATE: February 10, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in May 2005. The cause of the Veteran’s death was cardiopulmonary arrest and metastatic poorly differentiated squamous cell carcinoma. 2. At the time of the Veteran’s death he was not service connected for any disabilities. 3. The Veteran’s cardiopulmonary arrest and metastatic poorly differentiated squamous cell carcinoma did not manifest within service, or within an applicable presumptive period. The Veteran’s cause of death was unrelated to service, to include his conceded herbicide exposure. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1948 to June 1970. He died May 2005. The Appellant is his surviving spouse. This matter comes before the Board of Veterans Appeals (Board) on appeal from a August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in March 2020, it was remanded for additional development. Specifically, the RO was instructed to obtain an addendum to the September 2019 VA medical opinion. A March 2020 addendum was obtained which addressed the required evidence. As such, the Board finds that the AOJ substantially complied with the directives in the August 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Cause of Death The Appellant has filed a claim for service connection for the Veteran’s cause of death. She has contended that the Veteran’s cardiopulmonary arrest and metastatic poorly differentiated squamous cell carcinoma were etiologically related to his in-service exposure to Agent Orange. To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran’s death. 38 C.F.R. § 3.312(c). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death. A causal relationship must be shown. 38 C.F.R. § 3.312. The Veteran died in May 2005. The death certificate documented the cause of the Veteran’s death as cardiopulmonary arrest and metastatic poorly differentiated squamous cell carcinoma. These are the only causes of death listed on the death certificate. At the time of his death, the Veteran was not service connected for any disabilities and he did not have any pending service connection claims. The Board finds the cause of death is accurately reflected on the death certificate, as there is no evidence that it is inaccurate. Notwithstanding this, service connection for the cause of death requires the presence of a service-connected disability or a disability which would have been service connected during the Veteran’s lifetime if he had filed a claim for service connection. Further, it must be shown by medical evidence that such service-connected or service-connectable disability was the immediate or underlying cause of death or was etiologically related thereto; or, that such service-connected or service-connectable disability contributed substantially or materially to the Veteran’s death; combined to cause death; or aided or lent assistance to the production of death. The Veteran’s treatment records confirm his diagnosis of, and treatment for, squamous cell carcinoma. Additionally, treatment records note a finding of a “moderately sclerotic aorta.” However, none of his records relate his cause of death to military service. Additionally, while the Veteran’s private treatment records mention his exposure to Agent Orange, they do not provide a nexus opinion relating his in-service herbicide exposure to his disabilities. Further, the Veteran’s service treatment records (STRs) contained no problems, complaints, or treatment for the Veteran’s heart or any type of carcinoma. The record shows that these conditions were first diagnosed many years after Veteran separated from service, and well outside any applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The disabilities may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s disabilities and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Here, squamous cell carcinoma was first diagnosed multiple years after the Veteran left service. The Board notes that this passage of time weighs significantly against a finding of direct service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board further notes that cardiopulmonary arrest and metastatic poorly differentiated squamous cell carcinoma are not conditions that are considered presumptively related to Agent Orange exposure. See 38 C.F.R. § 3.309(e). However, if these conditions were etiologically related to his Agent Orange exposure, then the Veteran may still be granted on a direct basis. In response to an October 2018 Board remand, a September 2019 medical opinion was provided to assess whether the Veteran’s cause of death was etiologically related to his service. Specifically, the examiner was to opine on whether the Veteran’s causes of death were related to his conceded Agent Orange exposure. Further, the examiner was to opine whether the Veteran’s moderately sclerotic aorta was indicative of ischemic heart disease. The examiner opined that the Veteran’s cause of death was less likely than not (less than a 50 percent probability) etiologically related to his active service, to include his conceded Agent Orange exposure. However, the examiner only provided a rationale regarding the Veteran’s cardiopulmonary arrest. Specifically, the examiner noted that the findings of calcium deposits on the Veteran’s aorta during a radiological study was a common occurrence and is not correlated with the presence of ischemic heart disease. The examiner further noted that the discharge summary to hospice care specifically noted there was an absence of a cardiac diagnosis. As the physician has medical expertise and training to provide this opinion the Board affords the determination significant probative value. In response to the Board’s March 2020 Remand, a March 2020 Addendum to the September 2019 opinion was obtained. In this addendum, the examiner noted that the Veteran’s squamous cell carcinoma of the scalp was less likely than not (less than a 50 percent probability) due to the Veteran’s presumed herbicide exposure. The rationale provided was that squamous cell carcinoma not a cancer considered to be related to herbicide exposure by the Institute of Medicine of the National Academies (IOM). The examiner cited to an IOM report which documented cancers that were related to Agent Orange exposure, and cancers where there was suggestive evidence of association. However, squamous cell carcinoma of the skin did not fall into any of the relevant categories. As such, the examiner opined that the Veteran’s squamous cell carcinoma cannot be considered caused by exposure to Agent Orange. The Board notes that the Appellant has provided lay statements wherein she indicated that she believed the cause of the Veteran’s death was related to his in-service Agent Orange exposure. However, the Appellant is not competent to render a medical opinion in this case. The issue of cause of death presents a complex medical question requiring the opinion of a medical professional. Additionally, the Board finds that linking cause of death to service is an inherently complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Accordingly, the Appellant’s beliefs that service connection is warranted for cause of death are not competent or probative evidence supporting the claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board gives greater weight to the VA examiner’s opinions. The Board emphasizes that it is sympathetic to the Appellant and is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination.”). Accordingly, the Board finds that service connection for the cause of the Veteran’s death is not warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.