Citation Nr: 21040941 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-48 865 DATE: July 7, 2021 ORDER Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in September 2008; his death certificate reflects that he died as a result of multifocal hepatocellular carcinoma due to, or as a consequence of, hepatitis C. 2. It is at least as likely as not that the Veteran's in-service exposure to herbicide agents and/or his service-connected posttraumatic stress disorder (PTSD) materially contributed to his death. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for an award of service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1964 to February 1971, to include service in Vietnam. He also had service in the Army National Guard, to include a period of active duty for training from February 1961 to August 1961. His decorations included the Vietnam Service Medal and the Combat Infantryman Badge. Unfortunately, he died in September 2008. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2018 decision issued by a Department of Veterans Affairs (VA) Regional Office. This case was most recently before the Board in November 2019. The Board, in pertinent part, reopened the appellant's claim for service connection for the cause of the Veteran's death and remanded the matter to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service connection for the cause of the Veteran's death The appellant seeks to establish service connection for the cause of the Veteran's death. She asserts that the Veteran's death was related to his military service, to include his in-service exposure to herbicide agents and/or his service-connected PTSD. 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 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 to his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service-connected disability will be considered as 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 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. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. A Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumptions, service connection for a disability claimed as due to exposure to herbicide agents may be established on a direct basis by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (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 the present case, the record reflects that the Veteran died in September 2008. His death certificate reflects that he died as a result of multifocal hepatocellular carcinoma due to, or as a consequence of, hepatitis C. At the time of his death, he was service connected for, among other things, PTSD. The Board has previously conceded that the Veteran was exposed to herbicide agents during service. See November 2019 Board decision. The question presently before the Board is whether his death was related to his conceded in-service exposure to herbicide agents and/or his service-connected PTSD. In an August 2011 VA treatment record, a VA care provider (a physician working in the area of geriatrics and palliative care) opined that the Veteran's cause of death was related to his PTSD. In December 2018, a private physician opined, in effect, that it was at least as likely as not that the Veteran's death was related to service, to include his service-connected PTSD. The physician observed that the Veteran had a considerable history of cocaine and alcohol abuse that was very likely the result of self-medicating his psychological complications. Citing to medical literature and considering the Veteran's independent risk factors, the physician concluded that it was at least as likely as not that the Veteran's in-service exposure to herbicides contributed to an increased likelihood of developing complications, including cancer, later in life, and that it was also at least as likely as not that chronic stress from PTSD led to increased tumor growth and production and that his history of cocaine and alcohol abuse further contributed materially and substantially to his hepatic decline. In November 2019, a VA physician reviewed the Veteran's claims file and opined that it was less likely than not that the Veteran's hepatocellular carcinoma was related to service. The examiner noted that the type of cancer the Veteran had was most commonly associated with chronic hepatitis C exposure and other risk factors and was not recognized as a cancer associated with Agent Orange exposure. The examiner further opined that the Veteran's PTSD was not the principal or contributory cause of the Veteran's death; that it was a mental disorder and not a terminal condition; and that PTSD had no pathological correlation to increased tumor growth and production. In March 2020, a second private physician opined that it was at least as likely as not that the Veteran's death was related to service, to include his service-connected PTSD. Considering the Veteran's independent risk factors and medical history, including PTSD, and his history of alcohol abuse and cirrhosis as secondary thereto, the physician concluded that it was more likely than not that the Veteran's hepatocellular carcinoma was a result of his Agent Orange exposure and that his self-medication for his severe PTSD symptoms also likely caused his hepatic decline. Multifocal hepatocellular carcinoma is not among the diseases recognized as presumptively due to exposure to herbicide agents under 38 C.F.R. § 3.309(e), and there is no competent evidence of record indicating that the Veteran's death resulted from a condition otherwise presumptively related to such exposure. Therefore, service connection is not warranted on a presumptive basis. Nevertheless, considering the totality of the record, the Board finds that the evidence is in relative equipoise as to whether the Veteran's death was related to service. The December 2018 and March 2020 opinions from the two private physicians are based on an accurate understanding of the facts, and articulate reasons for the conclusions reached. As such, the Board finds the opinions probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As noted, the November 2019 VA examiner offer an unfavorable opinion with respect to nexus. In so doing, however, the examiner did not discuss the medical literature that the other opinions referenced in considering the association between the Veteran's multifocal hepatocellular carcinoma and his in-service exposure to herbicides. Further, the examiner noted that there was no pathophysiological correlation between PTSD and multifocal hepatocellular carcinoma, but did not discuss whether the Veteran's PTSD, including increased substance use/abuse, affected his hepatic function. For these reasons, the Board finds the opinion to be of limited probative value. The August 2011 VA provider's opinion is also of limited probative value as the opinion did not provide a rationale to support the conclusion that the Veteran's death was related to his PTSD. That said, the opinion is consistent with the private providers' opinions in that regard. At a minimum, the conflicting evidence raises a reasonable doubt as to whether the Veteran's cause of death was related to his in-service exposure to herbicide agents and/or his service-connected PTSD. The law mandates resolving reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) noted that in light of the benefit of the doubt provisions of 38 U.S.C. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Moreover, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. Resolving reasonable doubt in the appellant's favor, the Board finds that the criteria for an award of service connection for the cause of the Veteran's death have been satisfied. The appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.