Citation Nr: 21030755 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-36 584 DATE: May 19, 2021 ORDER Entitlement to service connection for cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran's death certificate shows that he died in December 2015. The cause of death was listed as metastatic breast cancer. 2. At the time of his death, the Veteran was service connected for a low back strain with degenerative joint disease and right ear hearing loss. 3. The Veteran served in Vietnam; thus, his exposure to Agent Orange (AO) is presumed. 4. The weight of the evidence is against finding the Veteran's metastatic breast cancer to be related to service, to include herbicide exposure, or to service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Army from July 1968 to May 1993. The Veteran retired as a lieutenant colonel and was highly decorated. The Veteran was the recipient of the National Defense Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Republic of Vietnam Cross of Gallantry with Palm, three overseas bars, along with several others. The Board of Veterans' Appeals (Board) is grateful for this Veteran's service. The Veteran passed away in December 2015; the appellant before the Board now is his surviving spouse. This matter comes before the Board from a June 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In December 2019, the appellant had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In a May 2020 decision, the Board remanded the issue for further development and a new VA medical opinion. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The matter returned to the Board in October 2020 and was remanded again to allow additional VA and private treatment records to be obtained and associated with the record. The Board is satisfied that there was substantial compliance with its remand orders and is prepared to fully adjudicate the issue at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for cause of the Veteran's death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 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. 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, certain chronic diseases, such as malignant tumors, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In this case, the presumption does not apply because there is no medical evidence that the Veteran manifested metastatic breast cancer to a compensable degree within one year of service discharge in May 1993. See 38 C.F.R. §§ 3.307, 3.309. Additionally, 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, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). Service personnel records confirm that the Veteran served in the Republic of Vietnam during this time frame. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or primary, cause of death when such disability, 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 inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it 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 it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The Veteran's death certificate listed his cause of death solely as metastatic breast cancer. The service treatment records (STRs) were silent as to any findings, complaints, or treatment of breast cancer. The Veteran's exams in service present him as having no issues that may be related to cancer. There was no evidence of the record showing that the Veteran incurred an injury in service, nor was there evidence showing a causal relationship between the Veteran's metastatic breast cancer and an injury, disease, or event that occurred in-service. The Veteran was formally diagnosed with metastatic breast cancer in June 2013. The Veteran's in-service examinations and records show no symptoms or diagnosis of metastatic breast cancer. The evidence is clear that the Veteran's fatal cancer did not manifest itself during service or within one year after his separation from military service. The Veteran's service in Vietnam establishes a presumption that he was exposed to an herbicide agent while in service. 38 C.F.R. § 3.307(a)(6)(iii). Because of the Veteran's exposure to herbicide agents in service, he may be found service connected for certain chronic diseases, even when there is no record of the disease occurring in service. The list of diseases associated with exposure to herbicide agents is listed in 38 C.F.R. § 3.309(e). Under the Agent Orange Act of 1991, VA has determined that presumption of service connection based on exposure to herbicide agents used in Vietnam is not warranted for any conditions other than those for which VA has found a positive association between the condition and such exposure. VA has determined that a positive association exists between exposure to herbicide agents and the subsequent development of the following: AL amyloidosis; chloracne or other acneform diseases consistent with chloracne; type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; Ischemic heart disease (including, but not limited to acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Available scientific and medical evidence does not support the conclusion that metastatic breast cancer is positively associated with herbicide agent exposure. In so finding, the Board has reviewed all the medical records available on file. The private treatment records show that the cancer began in the left breast and spread to the bones, liver, abdominal nodes, and lungs. The Veteran's private physician, Dr. A.S., stated that the Veteran's breast cancer was initially diagnosed in the summer of 2013 and was metastatic to the liver, bone, lungs, and abdominal lymph nodes. From 2014 through December 2015, when the Veteran passed, the private medical treatment records noted metastatic nodules on the lungs. In August 2020, VA obtained a medical opinion regarding the appellant's claim. The examiner opined that the Veteran's breast cancer was less likely than not related to his active duty service, or otherwise related to any in-service disease, event, or injury, to include his acknowledged exposure to Agent Orange. The examiner stated that the Veteran's death certificate only identified breast cancer as his cause of death. Breast cancer is not recognized as being related to in-service herbicide agent exposure. Additionally, the Veteran's private doctor, Dr. A.S. also stated that at the time of diagnosis, the Veteran's breast cancer had already metastasized in his lungs. However, there is no nexus opinion on the record claiming that the Veteran's metastatic breast cancer is due to any exposure to Agent Orange. The only opinion is the VA examiner's negative opinion finding that the breast cancer is not due to herbicide agent exposure. There is no evidence linking the Veteran's breast cancer to service, to include his in-service herbicide agent exposure, or to his service-connected low back strain or hearing loss. Finally, the Board fully considered all the appellant's lay statements in the record. Lay evidence that is submitted in the record must be competent and credible. Competent lay evidence is any evidence not requiring that the proponent have any specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). The lay statements may be competent to testify to symptoms. The Veteran's wife is, in this case, competent to provide an opinion regarding the specific issues of the Veteran's metastatic breast cancer and chemotherapy. However, as a layperson, the Veteran's wife does not have the education, training, and experience to offer a medical diagnosis or an opinion as to a link between metastatic breast cancer and Agent Orange exposure. Therefore, it is outside the competence of the appellant in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The appellant's representative, at the hearing, raised the argument that service connection should be granted due to the fact that the medical records show evidence of malignant nodules on the lungs. However, nowhere in the record is the Veteran diagnosed with lung cancer or another respiratory cancer to allow him to receive a presumption of service connection under 38 C.F.R. § 3.309. Similarly, Dr. A.S. specifically states that the Veteran's breast cancer metastasized in the lungs, not that the Veteran had separate lung cancer. The death certificate also clearly notes the only cause of death as breast cancer. Therefore, this theory of entitlement will not allow the appellant to prevail. The Board is grateful for the Veteran's honorable service and sorry for the appellant's loss. However, given the record before it, the Board finds that the evidence supporting this claim does not rise to the level of equipoise. See, Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009). Rather, the preponderance of the evidence is against finding that service connection is warranted for the cause of the Veteran's death. 38 C.F.R. § 3.312. For these reasons, the benefit-of-the doubt standard of proof does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.