Citation Nr: 21021952 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 13-06 488 DATE: April 14, 2021 ORDER Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran’s death pursuant to 38 U.S.C. § 1310 is denied. FINDINGS OF FACT 1. The Veteran’s Certificate of Death reflects that he died in September 2011 with the immediate cause of death listed as pancreatic cancer.. 2. During his lifetime, the Veteran was service-connected for posttraumatic stress disorder (PTSD), cervical strain with degenerative disc disease, and scars of the right thigh and hip, left forearm, and right side of the neck. 3. The Veteran is presumed to have been exposed to herbicide agents coincident with his service in the Republic of Vietnam. 4. A disability of service origin did not cause or contribute to the Veteran’s death. CONCLUSION OF LAW The criteria for DIC based on service connection for the cause of the Veteran’s death pursuant to 38 U.S.C. § 1310 have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1969 to October 1970. He was the recipient of numerous awards and decorations, to include the Combat Action Ribbon and two Purple Heart Medals. The Veteran died in September 2011, and the appellant is his surviving spouse. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In September 2015, November 2019, and July 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to DIC based on service connection for the cause of the Veteran’s death pursuant to 38 U.S.C. § 1310. The Veteran’s Certificate of Death reflects that he died in September 2011 with the immediate cause of death listed as pancreatic cancer. During his lifetime, he was service-connected for PTSD, cervical strain with degenerative disc disease, and scars of the right thigh and hip, left forearm, and right side of the neck, and is presumed to have been exposed to herbicide agents coincident with his service in the Republic of Vietnam. However, the appellant has only alleged that the Veteran’s fatal pancreatic cancer was a result of his in-service exposure to herbicide agents and/or as due to alcohol and tobacco use related to his service-connected PTSD. She does not allege that the Veteran’s cause of death is related to any other instance of his military service or service-connected disability. 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). 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; 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)]. The law also provides a presumption of service connection for certain diseases associated with exposure to herbicide agents that become manifest to a specified degree within a specific time period, even if there is no record or evidence of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. As previously determined, the Veteran served in the Republic of Vietnam and, as such, he is presumed to have been exposed to herbicide agents coincident with such service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). However, pancreatic cancer is not a disease acknowledged to be presumptively related to such in-service exposure. Nevertheless, the appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 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). In regard to the appellant’s contention that the Veteran’s fatal pancreatic caner is related to his acknowledged in-service exposure to herbicide agents, a January 2016 VA examiner opined that it was less likely than not that such disease was etiologically related to his presumed exposure to herbicides in Vietnam; however, the entire rationale was based on the fact that pancreatic cancer is not on the list of diseases subject to presumptive service connection based on such exposure. Accordingly, in February 2020, a different VA examiner reviewed the record and opined that it is less likely than not that the Veteran’s fatal pancreatic cancer was etiologically related to his presumed exposure to herbicide agents. In this regard, he provided a thorough review of the facts of the case, known risk factors for the development of pancreatic cancer, and relevant medical literature, and found that the existing evidence did not support a conclusion that exposure to herbicides are associated with the occurrence of pancreatic cancer. As pertinent to the appellant’s contention that the Veteran’s fatal pancreatic cancer was due to alcohol and tobacco use related to his service-connected PTSD, a January 2016 VA examiner opined that it was less likely than not that the Veteran’s alcohol abuse and smoking were caused or aggravated by his PTSD. However, as he did not consider all the evidence of record in rendering such opinion, addendum opinions were obtained in April 2020, May 2020, and July 2020. Concerning the Veteran’s alcohol use, a May 2020 VA psychologist reviewed the record and opined that such is at least as likely as not aggravated by his service-connected PTSD as such was utilized as a coping mechanism; however, a May 2020 physician found that it was less likely than not that the Veteran’s alcohol abuse contributed substantially or materially to cause his death from pancreatic cancer. In this regard, she explained that the medical literature reflected that there was limited evidence that alcohol beverages were a carcinogenic agent for pancreatic cancer. Rather, such demonstrated that there was sufficient evidence that tobacco smoking was a carcinogenic agent for pancreatic cancer and, thus, is a cause of such disease. However, in April 2020, the VA psychologist found that it was less likely than not that the Veteran’s smoking was caused or aggravated by his PTSD as there was no documented association between the two conditions in his medical records. Further, she noted that such showed decreased tobacco use over time despite ongoing treatment for PTSD. However, as the VA psychologist did not address the Veteran’s extensive smoking history, the fact that he began smoking after he reported quitting, and the appellant’s allegation that he smoked for decades as a means for managing stress and symptoms of his PTSD, another addendum opinion was obtained in July 2020. Specifically, at such time, the VA psychologist again reviewed the record, to include all relevant treatment records addressing the Veteran’s tobacco use and the appellant’s contentions, and again opined that it was less likely as not that the Veteran’s smoking/tobacco use was caused or aggravated by his PTSD. In this regard, she noted that it was well-documented in the medical literature that tobacco is highly addictive and sustained tobacco cessation is a challenge for many individuals, requiring multiple attempts prior to persistent success. The VA psychologist explained that relapse is often associated with stress. In this regard, she stated that the correlation between tobacco use and stress and PTSD, or other mental health symptoms, does not constitute or prove a causal relationship, nor does the intermittent nature of smoking and severity of PTSD symptoms documented throughout the Veteran’s life indicate any evidence of aggravation beyond the natural progression. The VA psychologist also observed that the Veteran’s treatment records indicate largely stable tobacco use over time despite fluctuations in his PTSD symptoms. The Board affords great probative weight to the February 2020, April 2020, May 2020, and July 2020 VA examiners’ opinions 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 examiners 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 assertions as to the cause of the Veteran’s death; however, as a lay person, she does 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 pancreatic cancer 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 opinion as to the etiology of the Veteran’s fatal pancreatic 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, the criteria for DIC based on service connection for the cause of the Veteran’s death pursuant to 38 U.S.C. § 1310 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 M. Breckenridge, 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.