Citation Nr: 21020753 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-30 981 DATE: April 8, 2021 ORDER Service connection for the cause of the Veteran’s death denied. FINDINGS OF FACT 1. The Veteran’s certificate of death shows that he died in November 2015, and the immediate cause of death was lung cancer with metastatic disease to the brain. 2. At the time of the Veteran’s death, service connection was in effect for residuals of a left knee sprain, tinnitus, ganglion cyst of the left wrist, residuals of fracture of the left ring finger, residuals of a right knee sprain, residuals of recurrent left ankle sprains, bilateral hearing loss, recurrent upper respiratory infections with allergic rhinitis, and periodontal disease. 3. A disability of service origin did not cause or contribute to the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1310, 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 from July 1970 to December 1991. He died in November 2015 and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the appellant and her daughter testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2019, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for the cause of the Veteran’s death. Service connection for the cause of a veteran’s death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of the veteran’s death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially; combined to cause death; aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as malignant tumors, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, “herbicide agents” are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). As relevant, veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean demilitarized zone (DMZ) between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). For those veterans who have been exposed to herbicide agents, certain diseases, to include lung cancer, are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). In this regard, such disease shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 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). The Veteran’s death certificate lists the immediate cause of death as lung cancer with metastatic disease to the brain. No contributory causes were listed; however, tobacco use was noted to contribute to death. During his lifetime, the Veteran was service-connected, effective January 1, 1992, for residuals of a left knee sprain, tinnitus, ganglion cyst of the left wrist, residuals of fracture of the left ring finger, residuals of a right knee sprain, residuals of recurrent left ankle sprains, bilateral hearing loss, recurrent upper respiratory infections with allergic rhinitis, and periodontal disease. The appellant asserts the Veteran’s cause of death is the result of in-service exposure to herbicide agents in the Republic of Vietnam. In this regard, she contends that, while he was stationed in Korea, he flew on humanitarian trips to Vietnam to deliver supplies to soldiers. Alternatively, the appellant believes that the Veteran’s service-connected recurrent upper respiratory infections with allergic rhinitis contributed to the cause of his death. The Veteran’s military personnel records reflect foreign service in Korea and Germany, but not Vietnam. As noted previously, VA recognizes exposure to herbicide agents for veterans who served in the DMZ in Korea from April 1, 1968, to August 31, 1971. However, the Veteran served at Camp Casey, Korea, from September 26, 1971, to October 16, 1972. Additionally, there is no evidence of the Veteran’s service or presence in, to include helicopter trips to, Vietnam. Consequently, VA issued a formal finding that it lacked the information the U.S. Army and Joint Services Records Research Center required to verify herbicide exposure in Korea or Vietnam and, thus, VA may not concede exposure to herbicide agents in this case. Nevertheless, the appellant may still prevail under an alternative theory of entitlement. In this regard, she has not alleged, and the evidence does not show, that the Veteran’s fatal lung cancer is presumptively related to his military service as a chronic disease, or his service-connected disabilities, other than recurrent upper respiratory infections with allergic rhinitis, caused or contributed to his death. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered “all possible” substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). As pertinent to the remaining theories advanced by the appellant, the evidence must show that the Veteran’s immediate cause of death, lung cancer with metastatic disease to the brain, is directly related to service despite the absence of exposure to herbicide agents, or his recurrent upper respiratory infections with allergic rhinitis was the immediate or underlying cause of death or etiologically related thereto; contributed substantially or materially; combined to cause death; or aided or lent assistance to the production of death. In this regard, the Veteran’s service treatment records (STRs) reflect treatment for bronchitis, rhinitis, pharyngitis, upper respiratory infection, pneumonia, tonsillitis, strep throat, and sinusitis. See November 1973, October 1976, October 1979, November 1980, May 1983, May 1984, June 1984, September 1984, September 1986, March 1987, January 1988, April 1988, and January 1989 STRs. Based on such treatment, the Veteran was service-connected for recurrent upper respiratory infections with allergic rhinitis. Such STRs also reflect that the Veteran smoked one pack of cigarettes a day. See October 1976 STR; November 1991 Report of Medical Examination. At the time of his November 1991 separation examination, the Veteran denied experiencing hay fever, shortness of breath, and chronic cough, and his lungs and chest were normal upon contemporaneous clinical examination. Post-service treatment records likewise reflect that the Veteran was a long-time smoker. Specifically, in a November 2004 VA Mental Health Consult, he reported that he started smoking at age 14 and, while he quit smoking for one month in 1987, he was currently smoking 20 cigarettes per day. Such records reflect that he again quit smoking for one month in January 2005; however, a September 2009 VA Nursing Note states that the Veteran currently smoked 10 cigarettes a day and an August 2011 private treatment record reflects that he had a 20-pack year history of smoking. Ultimately, he was diagnosed with malignant tumor of the lung, which he was noted that he had for one year prior to his death in November 2015. In May 2019, a VA examiner reviewed the record and opined that the Veteran’s fatal lung cancer with metastatic disease to the brain was less likely than not incurred in or caused by the claimed in-service injury, event or illness, proximately due to, the result of, or aggravated by his service-connected recurrent upper respiratory infections with allergic rhinitis. In this regard, he determined that the Veteran’s fatal lung cancer with metastatic disease to the brain was caused by his history of tobacco use. Specifically, the examiner explained that the Veteran’s recurrent upper respiratory infections with allergic rhinitis is not the same as lung cancer, nor does such condition progress to such fatal disease. He also noted that there was no diagnosis of lung cancer in service, and there was no objective medical evidence to indicate that the Veteran’s recurrent upper respiratory infections with allergic rhinitis did not resolve as no residuals were found. In this regard, the examiner observed that the Veteran denied experiencing hay fever, shortness of breath, and chronic cough at the time of his November 1991 separation examination, and his lungs and chest were normal upon contemporaneous clinical examination. Thus, there was no evidence of recurrent upper respiratory infections with allergic rhinitis at the time of the Veteran’s retirement. Furthermore, the examiner observed that there were no immediate post-service medical records reflecting treatment for chronic/ongoing recurrent upper respiratory infections with allergic rhinitis. Additionally, while such disorder was not included in the Veteran’s chronic problem list at VA, chronic smoking and nicotine dependence were listed. The examiner further explained that there is no mechanism of action for recurrent upper respiratory infections with allergic rhinitis to cause or aggravate lung cancer, and the Veteran’s death certificate reflected that tobacco use contributed to his death. In this regard, he noted that the Veteran’s greatest risk factor by far for his lung cancer was his tobacco use, rather than his recurrent upper respiratory infections with allergic rhinitis. The Board affords great probative weight to the May 2019 VA examiner’s opinion as such considered all of the pertinent evidence of record, to include the appellant’s contentions and the Veteran’s relevant medical history, and provided a complete 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. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary. The Board also considered the appellant’s and her daughter’s assertions as to the cause of the Veteran’s death; however, as lay people, they do not have the requisite training and experience necessary to address such a complex medical matter. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of lung cancer with metastatic disease to the brain involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the causes of cancer and, thus, may not be competently addressed by lay statements. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the appellant’s and her daughter’s opinions as to the etiology of the Veteran’s fatal lung cancer is not competent evidence and, consequently, is afforded no probative weight. Based on the foregoing, the Board finds that a disability of service origin did not cause or contribute to the Veteran’s death. Consequently, service connection for the cause of his death is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant’s claim for service connection for the cause of the Veteran’s death. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.