Citation Nr: 21023543 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-17 475 DATE: April 20, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in October 2014. The Veteran’s death certificate indicates the immediate cause of death as acute renal failure as a consequence of chronic kidney disease; end-stage liver disease/cirrhosis; and chronic alcohol abuse/alcoholism, with contributing hepatic encephalopathy. 2. At the time of his death, the Veteran was service connected for tinnitus at 10 percent (effective from February 22, 2007) and bilateral hearing loss at a non-compensable rating (effective from February 22, 2007). 3. The Veteran did not serve in the Republic of Vietnam during active duty service; he was not exposed to the designated herbicide agents; presumptive service connection based on herbicide exposure is not for application in this appeal. 4. The cause of the Veteran’s has not been shown to be related etiologically to any disease or injury in service including his report of contact with battery acid as a part of his duties as a central office telephone system repairman. 5. The Veteran was not continuously rated totally disabled for the 10 years immediately preceding death, nor was the Veteran a former prisoner of war. CONCLUSIONS OF LAW 1. A disability incurred in, or aggravated by, service did not cause or contribute substantially or materially to the Veteran’s death. 38 U.S.C. §§ 1101, 1103, 1110, 1112, 1113, 1137, 1318, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.300, 3.303, 3.307, 3.309, 3.312 (2019). 2. The criteria for DIC under the provisions of 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1969 to October 1971. He died in October 2014. The appellant seeks benefits as the Veteran’s surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Pension Center in Milwaukee, Wisconsin. As a preliminary matter, the Board notes that the appellant has requested higher level review for the service connection claims for which she was granted substitution. As such, the Board does not address entitlement to these claims here. See January 16, 2020 VA Form 20-0996. The Board has reviewed the record of evidence comprehensively. Although the Board has an obligation to provide reasons and bases to support a decision, there is no requirement to discuss, in detail, all the evidence submitted by or on behalf of a Veteran or an appellant. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000. The analysis below focuses on the most salient and the most relevant evidence about what this evidence shows, or fails to show, about the issue on appeal. The appellant must not assume that the Board has overlooked pieces of evidence that are not discussed explicitly. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Service Connection for Cause of Death The appellant contends that the Veteran’s exposure to herbicides in Okinawa, Japan resulted in the Veteran’s ultimately fatal diseases and disorders. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To establish entitlement to 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 or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered 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 the 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. It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312(c)(1). Evidence and Analysis Service personnel records show that the Veteran’s Army occupation was as a central office telephone system repairman. He served in Okinawa from October 1970 to October 1971. A review of the Veteran’s service treatment records (STRs) discloses no complaints of, treatment for, or diagnosis of, acute renal failure, end-stage live disease, cirrhosis, chronic alcohol abuse, alcoholism, or hepatic encephalopathy. In February 1969, the Veteran was treated on one occasion for a rash on one hand. In October 1971, the Veteran was treated on one occasion for heat rash on one arm that was present for the past two weeks. In September 1998, VA received 4 pages of downloaded text describing the transshipment and purported storage and disposal of defoliant agents in Okinawa, Japan. The author or editor of these pages remains unclear; however, the associated internet address accesses The Asia-Pacific Journal: Japan Focus “Subscription & Fundraising Drive July 2020” See http://www.japanfocus.org (last accessed on July 2, 2020). The authors based their report of the presence of the designated herbicide agents (Agent Orange) on reports by veterans, contentions that commercial and designated herbicides were interchangeable, and cites a unspecified statement from a Department of Defense official that denied the presence of the designated herbicide agents in Okinawa. This same month, the Veteran was afforded a VA examination. A VA clinician reported that the Veteran stated that his hands and arms broke out in boils during basic training at Fort Lewis (Washington) in 1969. Further, the Veteran had a second bout of boils while stationed in Okinawa in 1971; this bout lasted for approximately 6 months. Treatment consisted of a topical ointment. At the time of the examination, the Veteran endorsed wintertime finger coldness, numbness, and intermittent weakness—worse in the left fingers than the right fingers. Upon examination, the clinician found that the Veteran had full range of motion of the fingers of both hands. The Veteran was also able to touch fingertips with thumbs bilaterally. The clinician did find “slight weakness” in the left-hand grip and left forearm extension. As a diagnosis, the clinician provided “history of numbness of fingertips, especially during the winter season since onset in 1971.” And, lastly, the clinician recommended that the Veteran have a consultation with a neurologist. A February 1999 examination report from Dr. W., a private physician, shows that the Veteran reported his hand complaints. The physician noted the Veteran’s reports of treatment for a rash on his arms and hands on multiple occasions in service, although the records show only two widely spaced occasions. The Veteran did not know what “set it off.” He reported that he worked in a telephone office and had exposure to battery acid but not to other chemicals or plant life. However, Dr. W. wrote that the Veteran stated that during active duty service he had to do push-ups in snow, noting that these pushups might have caused frostbite to his hands. In his assessment, Dr. W. noted that the Veteran’s numbness in his fingertips could relate to a peripheral neuropathy, even though the Veteran did not have any “major signs.” The Veteran reported that he was self-employed as a general contractor. In an August 2007 VA treatment record, a clinician indicated that the Veteran consumed alcohol two-to-three times a day. This clinician also indicated that the Veteran had a history of alcohol abuse. Other VA treatment records discloses that the Veteran sought VA healthcare services from 2007 to 2014. On-going problems as of 2014 included hepatic encephalopathy; alcoholic cirrhosis; elevated renal functions; anemia; and history of alcohol abuse. Both community health nurses and VA social workers provided lifestyle counseling, focused on the Veteran’s adaptability skills to his chronic diseases. There was no mention of exposure to chemicals in service as possible causes for the disorders. Clinicians regularly monitored the Veteran’s prescribed pharmaceuticals. These records also show laboratory analyses to assess the Veteran’s renal function. The Veteran’s diet and mental status was closely followed. These records reflect a downward spiral in the Veteran’s overall status, particularly concerning kidney and liver function. A clinician opined that the Veteran had normal kidney function as late as June 2010. In July 2014, the Veteran was admitted into the Omaha, Nebraska Veterans Affairs Medical Center (VAMC). A clinician diagnosed hypokalemia. The Veteran spent three days in the VAMC. In a July 2014 emergency room (ER) report, Dr. I., an attending physician at St. F., noted that the Veteran had a chronic history of renal insufficiency, which might have been exacerbated by ibuprofen—taken for a few weeks to alleviate chronic back pain. This physician diagnosed hypokalemia and chronic renal failure. In August 2014, the Veteran was admitted to the Omaha VAMC. A clinician provided an admitting diagnosis of hepatic encephalopathy. The record discloses that the Veteran spent four days in the VAMC. In an August 2014 operative report Dr. B, a private surgeon at St. F., indicated a preoperative diagnosis of ascites and liver failure, ruling out spontaneous bacterial peritonitis. After performing a diagnostic and therapeutic paracentesis, Dr. B. provided a duplicative post-operative diagnosis. These private records make no mention of exposure to chemicals in service. In March 2015, VA received a lay statement from the appellant. In pertinent part, she noted that the Veteran told her that he had witnessed “local nationals” spraying the bush while he was stationed at Okinawa. The appellant also stated that the Veteran reported seeing dying vegetation when he walked through the jungle to get to his work area. And, the appellant noted that the Veteran indicated that he developed cysts and blisters on his arms, calves, shoulders, and face which popped out white cores. Lastly, the appellant noted that the Veteran complained of hand cramping and weakened grip, noting cold exposure, for years. The same month, the appellant submitted another statement. The appellant contended that the Veteran’s exposure to Agent Orange in service contributed to the Veteran’s death. She noted that the Veteran received treatment for liver dysfunction and thinning/blistering of the skin. She also noted that the Veteran suffered from a skin disorder throughout their lives together. Lastly, the appellant stated that the Veteran suffered from peripheral neuropathy, which began in service. In May 2015, the appellant submitted another letter. In pertinent part, the appellant contended that exposure to Agent Orange caused the Veteran’s death even though “the final cause of [the Veteran’s] passing was hepatic encephalopathy.” The appellant also expressed dissatisfaction at the way that VA was handling her claim. In a March 2016 memorandum, VA made a formal finding that VA lacked the information that the United States Army and Joint Services Records Research Center (JSRRC) requires to verify herbicide exposure in Okinawa. In the body of the memorandum, VA delineated the comprehensive steps taken to obtain the information. See March 22, 2016 Memo. In November 2018, the appellant submitted a collection of downloaded internet materials. These materials from disparate websites, provide commentary of hot spots, fish kills, and toxic dumps of an Okinawa military base; diagrams and maps; an article entitled; “Agent Orange and the Politics of Poisons”; and web addresses, and reproduced photographs, involving the use of defoliant agents in Vietnam, Japan, and other locales. The Board acknowledges this collection; however, the Board assigns nominal probative weight to these generic materials. Nothing in this collection points to specific facts in the Veteran’s medical history or his duties in Japan which did not include storage, spraying or handling herbicide. The last pages of this collection, styled as “diagnosis,” includes a list of medical disorders, medical definitions, symptoms, and pharmaceutical agents. At the end of this “diagnosis,” the appellant restated the Veteran’s cause of death (and contributory diseases). The appellant, as a lay person, lacks the expertise and training to render diagnoses, pharmaceutical protocols, or opinions concerning severity of symptoms. See Jandreau, supra. The Board finds that the Veteran was not exposed to the designated or commercial herbicide agents during his service including while on Okinawa. The information submitted by the Veteran and the appellant is based on reporting by service members and in news articles not confirmed by any official sources. Even if these substances were present and interchanged with commercial herbicides for which there is no conclusive evidence, the Veteran’s occupation as an office telephone systems repairman is not consistent with work in defoliated areas. He denied working with any chemicals or plant matter other than battery acid in his report to his private physician in 1999. Moreover, one episode of heat rash occurred prior to his deployment to Okinawa and the other in the last month of his service. Neither was reported or attributed to exposure to chemicals. The Veteran did not report this history and exposure to his physicians who diagnosed and treated him for the diseases that caused his death. While the appellant insists the Veteran’s cause of death was caused by exposure to Agent Orange in Okinawa. As already noted, as a lay person, the appellant is not competent to establish proximate cause and has offered absolutely no competent medical evidence, again applicable to the facts and the Veteran’s specific medical history, to support her contentions. See Jandreau, supra. At the time of his death, the Veteran was not service connected for chronic kidney disease; end-stage liver disease/cirrhosis; chronic alcohol abuse/alcoholism; and/or hepatic encephalopathy. Moreover, the Veteran’s STRs disclose no complaints of, treatment for, or diagnosis of, acute renal failure, end-stage live disease, cirrhosis, chronic alcohol abuse, alcoholism, or hepatic encephalopathy. Without a service-connected disability, such as one of the diseases entities above or a disease entity analogous to such, establishing entitlement to service connection for the cause of a Veteran’s death is not possible. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 38 U.S.C. § 5103A(a) requires VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is “necessary to substantiate the claimant’s claim” and only excuses VA from making reasonable efforts to provide such assistance, if requested, when “no reasonable possibility exists that such assistance would aid in substantiating the claim.” Wood v. Peake, 520 F.3d 1345, 1348-49 (Fed. Cir. 2008); see also DeLaRosa v. Peake, 515 F. 3d 1319, 1322 (Fed. Cir. 2008). Here, the Board finds that the Veteran was not exposed to the designated or commercial herbicide agents in Okinawa or anywhere else. And, the September 1998 VA diagnosis of “history of numbness of fingertips, especially during the winter season since onset in 1971” does not suggest or even nuance an etiology of Agent Orange exposure—17 years after the Veteran’s active duty service. Thus, there is no question or issue that requires resolution by a medical authority. Additionally, conclusory generalized lay statements that a service event or illness (herein Agent Orange exposure in Okinawa) caused the Veteran’s death are insufficient to require the Secretary to provide an opinion. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (2010). Here, the appellant sincerely believes that the “genesis” of the Veteran’s fatal acute renal failure as a consequence of chronic kidney disease; end-stage liver disease/cirrhosis; and chronic alcohol abuse/alcoholism, with contributing hepatic encephalopathy, was caused by Agent Orange exposure. Nevertheless, there is no other competent supporting evidence to suggest that possibility or any other event, injury, or disease in service. Therefore, the Board finds that the weight of competent and credible evidence is against the appellant’s claim, and there is no reasonable doubt to resolve. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). DIC under 38 U.S.C. § 1318 The appellant contends that she meets the criteria for entitlement for DIC under 38 U.S.C. § 1318. DIC benefits are payable to the surviving spouse of a deceased Veteran in the same manner as if the death were service-connected if the Veteran died not as a result of his own willful misconduct, and who either was in receipt of, or entitled to receive, compensation at the time of death for service-connected disability rated as totally disabling, if the service-connected disability was rated as totally disabling for 10 or more years immediately preceding death, or if continuously rated as totally disabling for at least 5 years after the Veteran’s separation from active service. See 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22. In this case, the Veteran was not continuously rated totally disabled for the 10 years immediately preceding death and was never a prisoner of war. Hence, entitlement to DIC under 38 U.S.C. § 1318 is not warranted. Hence, the appellant’s claim for DIC under 38 U.S.C. § 1318 must be denied because of the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.