Citation Nr: 22008045 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 19-25 153 DATE: February 11, 2022 ORDER Service connection for cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in July 2018. The death certificate lists the cause of death as metastatic pancreatic cancer. 2. At the time of his death, the Veteran was service connected for posttraumatic stress disorder (PTSD) with major depressive disorder, a right knee disability, and a left knee disability. 3. There is no competent evidence linking any disability associated with the Veteran's death to his active service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.07, 3.09, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1974 to July 1976. The Veteran passed away in July 2018, and the Appellant is the Veteran's surviving spouse. In February 2021, the Appellant testified before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. In July 2021, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to obtain a VA opinion concerning a possible nexus between the Veteran's service connected PTSD and his cause of death. A VA opinion was provided in October 2021. The VA examiner considered all the evidence of record before coming to an opinion and provided an adequate rationale for his opinion. He provided opinions regarding herbicide exposure as well as whether the Veteran's pancreatic cancer was caused or aggravated by his PTSD. The Board also directed the AOJ to ask the Appellant whether the Veteran served in the Republic of Vietnam. In July 2021, the AOJ sent the Appellant a letter asking her to provide evidence about possible service in the Republic of Vietnam. In August 2021, she contacted the AOJ and informed it that she did not have information about Vietnam service. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Appellant nor her representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran's death certificate notes that he passed away at a non-VA hospice home. In response to her claim, the AOJ sent the Appellant a letter in August 2018 asking her to provide release forms so that the Veteran's private medical records could be obtained. She was provided with a VA Form 21-4142 (Authorization and Consent to Release Information) and asked to return the requested information or provide the records herself. She did not return the VA Form 21-4142. As a result, the AOJ was unable to request the records from the hospice home because it was not authorized to do so. 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. 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 a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal (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 must be shown to have contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). In determining whether the disorder that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran's cause of death was metastatic pancreatic cancer, as noted on his death certificate. There were no additional conditions listed as causes or contributions to his death. At her February 2021 hearing, the Appellant and her representative stated that the Veteran was exposed to "Agent Orange," but did not explain how. The nexus requirement may alternatively be satisfied if the Veteran was exposed to an herbicide agent in service and has a disease that is presumed to be associated with herbicide exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). If presumptive service connection is not available, direct service connection based on exposure to herbicide agents may be considered. However, the Board finds that the Veteran was not exposed to herbicide agents, as discussed below. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. At the February 2021 Board hearing, the Appellant asserted that the Veteran's service connected PTSD and depressive disorder were contributing factors in his death. The Appellant testified that the Veteran had multiple stays in mental hospitals prior to his health and stated that she believed his mental health conditions expedited his passing. In October 2021, the VA examiner, who is a physician, reviewed the Veteran's claims file. He stated that PTSD and major depressive disorder did not cause the Veteran's pancreatic cancer. He explained that PTSD and major depressive disorder are both mental health conditions and "they do not directly cause or contribute to the development of pancreatic cancer." The examiner concluded that PTSD and major depressive disorder did not aggravate the Veteran's pancreatic cancer because there was "...no evidence of aggravation beyond normal progression particularly as the veteran declined customary surgical and radiation/chemotherapy options and instead opted for holistic measures." This opinion is persuasive evidence against secondary service connection. Regarding direct service connection, the examiner explained that pancreatic cancer was due to genetic and environmental factors, including smoking. The Veteran had a 25 year history of smoking. He also had a history of excessive alcohol usage at times, and alcohol is a potentially moderate risk factor for pancreatic cancer. This explanation is persuasive evidence against direct service connection. The Appellant's contentions are that the Veteran's service-connected PTSD and major depression caused or aggravated his pancreatic cancer, or that his pancreatic cancer was the result of exposure to herbicide agents. She did not advance any theory regarding direct service connection other than exposure to herbicide agents. Therefore there is no lay evidence in favor of direct service connection other than as due to exposure to herbicide agents, which the Board finds did not occur. The VA opinion is based on a review of the file as well as the training and expertise of the VA examiner. While the Appellant's lay statements are considered, determining the connection between the Veteran's service connected disabilities and his cause of death falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Such a determination requires medical inquiry into biological processes, pathology, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Appellant in this case, who has not been shown by the evidence of record to have medical training or skills. Her assertion is not competent evidence. The Appellant and her representative argue that the Veteran's pancreatic cancer was caused by herbicide agent exposure. At the hearing, the Appellant did not describe the location or circumstances of the asserted exposure. She was asked in July 2021 to provide information regarding whether the Veteran served in the Republic of Vietnam and in August 2021 she stated that she did not have any information regarding Vietnam service. The evidence does not show that the Veteran was exposed to herbicide agents while in service. His military personnel records do not show that he served in an area where herbicides were used. His personnel records show that all of his foreign service was in Germany. The Appellant and her representative are not competent to state that the Veteran was exposed to an herbicide agent as defined by VA regulations. Aside from simply stating that he was exposed to "Agent Orange," they did not provide any additional information regarding the location or circumstances of the claimed exposure. The Board finds the Appellant's assertion that the Veteran was exposed to herbicide agents to be unpersuasive. The most persuasive evidence is the opinion of the October 2021 VA examiner, and it is against the Appellant's claim. Service connection for the cause of the Veteran's death is denied. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.