Citation Nr: 21030727 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-61 088 DATE: May 19, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in July 2015, and the preponderance of the evidence is against a finding that his in-service exposure to Agent Orange was a contributing factor to his cause of death. 2. The Veteran was not in receipt of a total rating for 10 continuous years prior to his death, was not rated as totally disabled continuously since his release from active duty and for at least 5 years preceding death, and was not a prisoner of war. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. 2. The criteria for entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1968 to September 1970. The Appellant is the Veteran's surviving spouse. This appeal arises before the Board of Veterans' Appeals (Board) from an October 2015 rating decision in which the Department of Veteran Affairs (VA) Regional Office (RO). In January 2020, the Appellant testified at a Board hearing. A copy of the transcript is of record. The Appellant's claims were previously before the Board in March 2020. At that time, the Board determined that the Appellant's claims required further development, including a VA opinion regarding the cause of the Veteran's death. That development having been completed, the claims are once again before the Board and will be adjudicated below. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is one which contributed substantially or materially to cause of death or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for the cause of the Veteran's death The Appellant contends that the Veteran's death was due to his military service. The Veteran's death certificate indicates that the Veteran died of natural causes. However, a June 2019 letter from a VA treating physician indicated that the Veteran's cause of death was adenocarcinoma that had spread to his liver and his bones. The Appellant has asserted that the Veteran's cause of death was due to or related to the Veteran's exposure to Agent Orange during service. Specifically, the Appellant contends that the Veteran's death was caused by undercooked fish the Veteran consumed while in Southeast Asia. The Veteran's service personnel records confirm that he served in the Republic of Vietnam, and therefore he was presumed to have been exposed to Agent Orange. See 38 C.F.R. §§ 3.307, 3.309. For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service-connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Board notes that while some cancers are presumptive herbicide-related diseases under 38 C.F.R. § 3.309(e), adenocarcinoma in the liver and bones is not. However, Veterans exposed to herbicide agents are not precluded from establishing service connection with proof that an herbicide agent such as Agent Orange actually caused a disability that is not included on the presumptive list of associated diseases at 38 C.F.R. § 3.309(e). See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In the June 2019 letter, the VA physician opined that the Veteran's cause of death was very likely caused by his exposure to liver flukes in Southeast Asia. Nonetheless, the examiner did not provide an adequate basis for her opinion. As such, another examination was necessary in order to consider this additional theory of entitlement based on exposure to herbicides. In a May 2020 VA opinion, an examiner opined that the Veteran's death was less likely than not incurred in or caused by his exposure to herbicides. The examiner reasoned that the Veteran's records indicated that his death was the result of cholangiocarcinoma. The Veteran was noted to have had Hepatitis C and was followed in a Hepatitis C clinic at the VA. The examiner explained that Hepatitis C is a known risk factor for cholangiocarcinoma. The examiner noted that the Veteran had a prior claim for his cancer having been due to liver fluke exposure. While no exposure was verified in his medical records, the examiner also noted that the Veteran had a nexus letter from a Dr. N. indicating that liver fluke exposure caused his cancer. However, the examiner reasoned, this assertion was not supported by treatment records. The examiner opined that the Veteran's cancer was less likely than not due to service or Agent Orange exposure. The Veteran's medical records did not support that any currently diagnosed cholangiocarcinoma related to the Veteran's claimed adenocarcinoma was at least as likely as not incurred in or caused by his period of service, to include presumed exposure to Agent Orange. The Board finds that the weight of the evidence does not show that the Veteran's cause of death was incurred in service, or that his death was caused by his exposure to Agent Orange while in service. As noted above, to establish service connection for the cause of a veteran's death, the evidence must show that a service-connected disability either caused or contributed substantially or materially to cause death. However, the most competent and credible evidence does not show that the Veteran's in-service exposure to Agent Orange was the immediate or underlying cause of his death or that this Agent Orange exposure was etiologically related to his death. The Board acknowledges that there is a June 2019 positive nexus opinion in the Veteran's record; however, the physician did not provide a rationale for her opinion that the cause of the Veteran's death was adenocarcinoma that spread to his liver and his bones. The physician provided a conclusory statement without an explanation. Moreover, there is a probative May 2020 VA opinion of record which provides that the Veteran's cause of death was less likely than not incurred in or caused by his period of service, to include exposure to Agent Orange. The May 2020 VA examiner reviewed the entirety of the Veteran's record, addressed the June 2019 positive nexus opinion, and provided an adequate rationale for his opinion that the Veteran's cause of death was less likely than not the result of his exposure to Agent Orange. As such, the Board assigns higher probative weight to the May 2020 VA examiner's opinion and lower probative weight to the June 2019 opinion from a separate VA physician. The Board also acknowledges the Appellant's lay statements throughout the appeal period. While the Appellant has expressed her earnest belief that the Veteran's cause of death was related to his exposure to Agent Orange, she is not competent to provide such an opinion. The issue is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to the medical findings from the May 2020 VA opinion, which is supported by detailed rationale that is consistent with the other facts in the record and is unrebutted by any other probative medical opinions. Accordingly, the Board finds that the Appellant is not entitled to service connection for the Veteran's cause of death and to that extent, the appeal is denied. 2. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 Dependency and indemnity compensation (DIC) may be awarded to a surviving spouse or helpless child upon the service-connected death of a Veteran, with service-connection determined according to the standards applicable to disability compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.5 (a). Under 38 U.S.C. § 1318 , VA death benefits may be paid to a deceased Veteran's surviving spouse or children in the same manner as if the Veteran's death is service-connected, even though the Veteran died of non-service-connected causes, if the Veteran's death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was "entitled to receive," compensation for service-connected disability that (1) was continuously rated as totally disabling for the 10 years immediately preceding death, (2) was continuously rated as totally disabling for a period of not less than 5 years from the date of his discharge or release from active duty or (3) was continuously rated as totally disabling for a period of not less than one year immediately preceding death, and the Veteran was a former prisoner of war who died after September 30, 1999. 38 U.S.C. § 1318; 38 C.F.R. § 3.22 (a). At the time of the Veteran's death in July 2015, he had properly established service connection for the following: posttraumatic stress disorder (PTSD) with an evaluation of 70 percent, effective July 1, 2011; hydradenitis suppurativa with an evaluation of 0 percent from October 23, 2002 and an evaluation of 10 percent from November 12, 2004; residual right leg scar with an evaluation of 0 percent from April 17, 2009; erectile dysfunction with an evaluation of 0 percent from July 1, 2011; and for individual unemployability granted from July 1, 2011. The provisions of 38 C.F.R. § 3.22, the implementing regulation for 38 U.S.C. § 1318 , formerly provided that benefits could be paid where the veteran was entitled or "for any reason...was not in receipt of but would have been entitled to receive compensation" at the 100 percent rate for 10 or more years immediately preceding death. 38 C.F.R. § 3.22 (1999). This language was interpreted as permitting "hypothetical entitlement" to benefits under 38 U.S.C. § 1318; Marso v. West, 13 Vet. App. 260 (1999). On January 21, 2000, VA amended 38 C.F.R. § 3.22 to clarify that the award of DIC benefits was limited to cases where the veteran, during his or her lifetime, had established the right to receive total service connected disability compensation for the period of time required by 38 U.S.C. § 1318, or would have established such right but for CUE in the adjudication of a claim or claims. 65 Fed. Reg. 3,388 (Jan. 21, 2000) (codified at 38 C.F.R. § 3.22 (2000)). The regulation, as amended, specifically prohibits "hypothetical entitlement" as an additional basis for establishing eligibility. In National Organization of Veteran's Advocates, Inc. v. Secretary of Veterans Affairs, 314 F. 3d 1373, 1377 (Fed. Cir. 2003) (NOVA II), the Federal Circuit observed that VA had determined that the "entitled to receive" language under 38 U.S.C. § 1318 should be interpreted in accordance with the revised 38 C.F.R. § 3.22 . The Federal Circuit also held that VA provided a permissible basis and sufficient explanation for its interpretation of the statutes as a bar to the filing of new claims posthumously by the veteran's survivor, i.e., claims where no claim had been filed during the veteran's life or the claim had been denied and was not subject to reopening-"hypothetical entitlement" claims. Id. at 1379-1380. In this instance, the Veteran was never a prisoner of war. The matter of entitlement to service connection for the cause of the Veteran's death has been decided above, concluding that the Veteran's exposure to Agent Orange was less likely than not the cause of his death. At the time of his death, the Veteran had not been receiving compensation for a totally disabling service-connected disability for at least 10 years, and had not been rated as totally disabled due to a service-connected disability for a period of at least five consecutive years at any point since service separation. As such, for the Appellant to qualify for DIC benefits under 38 U.S.C. § 1318, it must be established that the Veteran was "entitled to receive" compensation for service-connected disabilities which were totally disabling for at least 10 years at the time of his death. The phrase "entitled to receive" includes a situation in which a veteran, at the time of his death, would have received total disability compensation for service-connected disability for the required time period but for CUE committed by VA in a decision on a claim filed in the Veteran's lifetime. 38 C.F.R. § 3.22 (b)(1). However, a claim of CUE to any previous rating decision has not been raised. Importantly, a valid claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412 (1996). There are also other bases under 38 C.F.R. § 3.22 (b)(3) under which a Veteran may be considered to have been entitled to receive the required compensation, but those are not applicable in this case. The Veteran had admirable service and the Board is sympathetic to the Appellant's situation. The Board is bound, however, by the laws and regulations that govern the payment of benefits. Regrettably, there is no legal basis on which to grant DIC benefits under 38 U.S.C. § 1318 to the Appellant. To that extent, this appeal must be denied as a matter of law. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Vosburgh, 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.