Citation Nr: 21030053 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 13-03 570A DATE: May 17, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicides during service 2. The Veteran died in August 1999 as a result of sepsis as the immediate cause of death, and aspergillus pneumonia due to acute myelogenous leukemia as the underlying causes of death. 3. The evidence does not demonstrate that the Veteran's death was caused as a result of service nor that a service-connected disability caused or materially contributed to his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the surviving spouse of the Veteran who served on active duty from September 1967 to September 1987. The Veteran died in August 1999. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in August 2019, which granted a joint motion for remand (JMR) vacating a July 2018 Board decision and remanding the issue on appeal for additional development. The matter initially arose from an October 2011 rating decision on behalf of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was also remanded for additional development in November 2019 and May 2020. 1. Entitlement to service connection for the cause of the Veteran's death. A veteran's surviving spouse is eligible for Disability Indemnity Compensation (DIC) benefits when a qualifying veteran dies from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). The service-connected disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). It is the principal cause if it was the immediate or underlying cause of death or was etiologically related to the death. 38 C.F.R. § 3.312(b). It is a contributory cause if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). In order to be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995). VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate DIC claims and to provide a medical opinion where a reasonable possibility exists that such assistance would in fact aid in substantiating the claim. See Wood v. Peake, 520 F.3d. 1345, 1348 (Fed. Cir. 2008). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including leukemia, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Veterans diagnosed with an enumerated disease who served in the Republic of Vietnam on active service during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Certain disorders, including all B-cell leukemias, if manifest to a degree of 10 percent or more for an herbicide exposed veteran may be presumed service connected. Chronic B-cell leukemias include, but are not limited to, hairy-cell leukemia and chronic lymphocytic leukemia. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The National Academy of Sciences (NAS) report titled: Veterans and Agent Orange: Update 2012, however, found inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and other leukemias (including acute myeloid leukemia). 79 Fed. Reg. 20308, 20312 (Apr. 11, 2014). Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The appellant contends, in essence, that the Veteran's death was due to or a result of active service or that a service-connected or service-related disability caused or materially contributed to his death. She asserts that his acute myelogenous leukemia (AML) developed as a result of herbicide exposure in service and that his service-connected hypertension and type II diabetes mellitus contributed substantially to his cause of death. In an April 2021 brief, the appellant's service representative asserted that smoking was not the Veteran's only risk factor for AML and that exposure to Agent Orange and other herbicides can "alter one's genetic code." A reference to an internet source (wikipedia.org) document in support of the statement was provided. Service treatment records are negative for complaint, treatment, diagnosis, or symptoms related to leukemia. The Veteran's June 1987 separation examination revealed normal pertinent clinical evaluations, including to the endocrine system and lymphatics. Records show he served in the Republic of Vietnam from May 1968 to May 1969. He is presumed to have been exposed to herbicide agents, to include Agent Orange, in service. VA records show service connection has been established for hypertension, diabetes mellitus, arthritis of knees and ankles, lumbosacral strain, and right ear hearing loss. The evidence shows the Veteran died in August 1999. His death certificate listed sepsis as the immediate cause of death and aspergillus pneumonia due to AML as the underlying causes of death. No autopsy was conducted. Private treatment records show the Veteran was first diagnosed with AML in May 1999 and that he subsequently underwent unsuccessful induction chemotherapy treatment. In July 1999, he was admitted to a private hospital to treat abdominal pain and fevers and underwent reinduction chemotherapy. It was noted that during the course of treatment he had complications, including chest pain, invasive aspergillus, tachypnea, and oxygen desaturation. A hospital death summary noted his death in August 1999 with a principal diagnosis of cardiopulmonary arrest and secondary diagnoses of AML, invasive aspergillus infection, hypertension, diabetes, hyperlipidemia, and degenerative joint disease. A March 2014 VA medical opinion found it was less likely the Veteran's service-connected disabilities contributed substantially or materially to his death. The examiner acknowledged that service connection was established for musculoskeletal problems, hearing loss, hypertension, and diabetes and that these disabilities did not affect directly or indirectly the course of the disease that caused his death. It was noted that diabetes and hypertension were comorbidities, but that they did not contribute substantially to his death nor play a role in the process or course of his AML disease. A June 2017 VA medical opinion found that the Veteran's diabetes did not cause or contribute to the development of aspergillosis pneumonia (less than 1 percent likely). The examiner, an endocrinologist, noted a review of the available records and stated that his pneumonia was a complication of AML. A February 2020 VA medical opinion found the Veteran's diabetes did not cause nor contribute to the aspergillosis that led to his death nor otherwise contribute to his demise. As rationale, it was noted the Veteran was immunocompromised, with pancytopenia and febrile neutropenia due to his AML and chemotherapy (treatment), which was the cause of his death and was completely unrelated to his diabetes mellitus. The examiner stated aspergillosis was seen very occasionally in immunocompetent patients, and in those cases diabetes had been taken as the risk factor in the development of the condition. It was noted, however, that in those cases the patient has been insulin-dependent, which was not the case for the Veteran. He was not insulin dependent and was using oral treatment, no insulin. The examiner stated he was immunocompromised and that was the main factor for the development of his opportunistic infection. A June 2020 VA medical opinion found it was less likely than not that Veteran's AML was etiologically related to service, to include his conceded herbicide exposure. The examiner found that medical treatment records showed the Veteran died from complications AML, that the annual incidence of AML in the United States was approximately 19,000 and was more common in men and smokers, that records showed the Veteran smoked greater than 30 years, and that the medical literature had not found a causal link between herbicide exposure and AML. Based upon the evidence of record, the Board finds the Veteran's death was not caused as a result of service nor that a service-connected disability caused or materially contributed to his death. The Veteran is shown to have served in the Republic of Vietnam during the Vietnam Era and he is presumed to have been exposed to herbicides during that service. Records show he died in August 1999 as a result of sepsis and aspergillus pneumonia due to AML. Taken together, the March 2014, June 2017, February 2020, and June 2020 VA medical opinions are found to be persuasive that the Veteran's AML was not incurred as a result of service, including herbicide exposure during service, and that service-connected disabilities neither caused nor materially contributed to his death. The opinions are shown to have been based upon adequate rationale. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). There are no competent medical opinions to the contrary. The Board notes that presumptive service connection under the provisions of 38 C.F.R. § 3.309 is not warranted because the Veteran's AML was not manifest within one year of his discharge from active service and because AML is not included as a specific disease associated with herbicide exposure. The appellant has provided no medical, scientific, or other competent evidence indicating that a disease under 38 C.F.R. § 3.309(e) was the principal or a contributory cause of the Veteran's death. With regard to the internet source reference provided by the appellant in April 2021, VA has "an obligation to consider and discuss potentially favorable medical text evidence that was unaccompanied by a medical opinion." McCray v. Wilkie, 31 Vet. App. 243, 255 (2019). In the present case, the Board notes that the information provided was identified as based upon an internet source known to be available for editing without requirement for medical or scientific expertise. As such, the evidence in support of the proposed theory that AML may have developed due to herbicide exposure that altered the Veteran's genetic code is found to be of no probative weight. Although the reference provided in April 2021 is undated, there is no indication that the pertinent matter quoted represented scientific or medical discoveries that were not available to the June 2020 VA physician who found that a review of the medical literature did not reveal a causal link between herbicide exposure and AML. The Board acknowledges that the appellant is competent to report observable symptoms, but that there is no indication she is competent to etiologically link any such symptoms to a current diagnosis. She is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that she received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. Consideration has also been given to the appellant's personal assertions as to matters causing or materially contributing to the Veteran's cause of death. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The diseases at issue are not matters that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In conclusion, the Board finds service connection for the cause of the Veteran's death is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.