Citation Nr: 21010998 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-25 489 DATE: February 26, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran had active service in Vietnam and was presumed to have been exposed to herbicides during service. 2. The Veteran died in February 2012, and his death certificate listed the immediate cause of death as renal carcinoma with metastasis, due to or as a consequence of cancer of the liver and lungs. 3. The preponderance of the evidence is against finding that the Veteran's renal carcinoma with metastasis to the liver and lungs is attributable to his service or any incident of his service, including exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death are not satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran completed an honorable career in the United States Army, serving on active duty from July 1966 to October 1970 and June 1971 to July 1979. He died in February 2012. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified before the undersigned Veterans Law Judge (VLJ) of the VA Board of Veteran’s Appeals (Board) at a December 2019 video-conference hearing. A hearing transcript is in the claims file. The Board remanded this case in February 2020. 1. Entitlement to service connection for the cause of the Veteran's death is denied. The Appellant seeks service connection for the cause of the Veteran's death on the basis that the renal carcinoma with metastasis to the liver and lungs was linked to his exposure to herbicides from his time in Vietnam. See January 2021 Appellant's Brief. She asserts that his renal cancer was caused by in-service exposure to herbicides. In the alternative, she asserts that the Veteran’s lung cancer was the primary site of his cancer. For the following reasons, the Board finds that service connection is not established. When a veteran dies of a service-connected disability, the Secretary of the VA (Secretary) shall pay disability and indemnity compensation (DIC) benefits for the cause of death to the Veteran's surviving spouse, children, and parents. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of death, the evidence must show that a service-connected disability was either the principal cause of death or a contributory cause. 38 C.F.R. § 3.312(a). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c). In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially to the cause of death. Id. Entitlement to DIC benefits for the cause of a veteran's death may be established by showing that a disability for which service connection has already been granted was the principal or a contributory cause of death. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Otherwise, the claimant must first establish service connection for a disability shown to have caused or contributed to the veteran's death. Id. Here, the Veteran was service connected for posttraumatic stress disorder (PTSD) with an evaluation of 70 percent effective August 23, 2011. The Appellant does not assert, nor does the evidence show, that the Veteran’s PTSD was a principal or contributory cause of his death. As noted above, the Veteran died in February 2012. His death certificate listed the immediate cause of death as renal carcinoma with metastasis, due to or as a consequence of cancer of the liver and lungs. Service connection will generally be established for 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(a). 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). To establish service connection, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). Where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for most chronic diseases, including malignant tumors, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). In addition, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence establishing that he was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain specified diseases shall be presumptively service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). These diseases must have become manifest to a degree of 10 percent or more at any time after service. See 38 C.F.R. § 3.307(a)(6)(ii). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Appellant does not assert, nor does the evidence show, that the Veteran’s renal cancer, lung cancer and/or liver cancer had their clinical onset during service or within one year following the Veteran’s separation from service. The service treatment records are negative for any indication of renal, lung and/or liver cancer. A review of the post-service VA treatment records shows that the Veteran was initially found to have a large renal mass on July 13, 2011 with metastases to the lungs and liver, and biopsy-proven renal cell cancer on July 27, 2011. Thus, service connection may not be established based on a presumptive basis for a malignant tumor that manifests to a compensable degree within a year of separation. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). As the Veteran served in Vietnam during the Vietnam era, he is presumed to have been exposed to an herbicide agent (to include Agent Orange). 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307. The specified diseases presumptively service connected based on herbicide exposure include: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). See 38 C.F.R. § 3.309 (e) (2016). The Board is cognizant that lung cancer is among those diseases listed in 38 C.F.R. § 3.309(e) for which service connection may be presumed in the case of certain herbicide-exposed veterans. In this case, however, the March 2020 VA examiner concluded that the Veteran’s lung cancer was not a primary cancer. The examiner explained that initial hospital CT scans showed tumor involvement of the kidney, liver and lung, and that a large renal mass was biopsied which showed a primary renal cell carcinoma which had secondarily metastasized to liver and lungs. Presumptive service connection refers to the primary cancer site and not a site where the cancer has metastasized. Ramey v. Brown, 9 Vet. App. 40, 44 (1996), Ramey v. Gober, 120 F. 3d. 1239 (Fed. Cir. 1997). A presumptive cancer, such as lung cancer, that develops as a result of a metastasizing, non-presumptive cancer, such as renal cancer, may not be service connected under 38 U.S.C. § 1116(a). See 38 U.S.C. § 1113(a); Darby v. Brown, 10 Vet. App. 243 (1997). Accordingly, presumptive service connection for the cause of the Veteran's death is not warranted. Renal cancer and liver cancer are not conditions that qualify for the presumption of service connection based on herbicide exposure. The record does not otherwise show or suggest that there may be an actual direct link to such exposure, even if a presumption is not available. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (the "availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange"); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (when presumptive service connection for a disease is not available, the claim may still be established with proof of direct causation). To the contrary, the March 2020 VA examiner found that the Veteran’s liver cancer had metastasized from his renal cell carcinoma. Further, the examiner concluded that the Veteran’s renal and liver cancer were not related to his in-service exposure to herbicides. The examiner discussed the case with the VA Chief of Hematology Oncology in reaching this conclusion, explaining that literature does not currently support a relationship between these cancers and herbicide exposure, citing primarily to Principles and Practice of Oncology, Ninth, North American Edition, DeVita et al. The Board acknowledges that the Veteran’s death certificate lists renal carcinoma with metastasis, due to or as a consequence of cancer of the liver and lungs, which suggests that the lung cancer metastasized from the kidney cancer. However, the coroner that signed the certificate did not provide any further explanation or rationale. As such, this information is provided little, if any, probative value. The Appellant has asserted that the Veteran’s renal cancer was caused by in-service exposure to herbicides, or in the alternative that his lung cancer was the primary site of his cancer. She testified in December 2019 that the Veteran went to VA to be treated for his lungs and it was found that he also had kidney cancer. However, the Appellant has not been shown to have the requisite knowledge or training to render a medical opinion or identify the primary site of the Veteran’s cancer and/or the etiology of his cancer(s). While lay persons are competent to provide opinions on some medical issues, determining the cause and nature of a complex condition such as cancer falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board affords her lay statements no probative weight, as the Appellant is not competent to offer an opinion on a matter clearly requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board finds that the March 2020 VA medical examiner’s opinion is significantly more probative than the lay statements of the Appellant. The VA medical examiner’s opinion that the Veteran’s lung cancer was not the primary site of his cancer and that his renal and liver cancer was not caused by in-service exposure to herbicide agents is probative, as it represents the conclusion of a medical professional based on review of the Veteran's medical records, and is supported by an explanation. The Appellant’s representative stated in the January 2021 Brief that, “38 C.F.R. § 3.309 now has bladder cancer as a herbicide presumptive condition” and that ‘we believe this fact may change the medical opinion since the examiner relied heavily on the literature.” However, the Veteran was not diagnosed as having bladder cancer during his lifetime. Thus, the addition of bladder cancer as a herbicide presumptive condition is not relevant in this case. Accordingly, the Board finds that the conditions causing or contributing to the Veteran's death, including renal cancer with metastasis to the liver and lungs, are not linked to disease or injury incurred or aggravated in active service, including herbicide exposure. Because the preponderance of the evidence weighs against the claim, service connection for the cause of the Veteran's death must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55; 38 C.F.R. § 3.312. The Board wishes to convey its deepest sympathy for the Appellant's loss. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gonzalez, Damian 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.