Citation Nr: 1749067	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  11-25 411	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death, to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Taylor, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 1968 to December 1969. The Veteran served in the Republic of Vietnam from June 1968 to August 1968. The Veteran died in October 2009, the Appellant is her surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. A Notice of Disagreement (NOD) was filed in October 2010. A Statement of the Case (SOC) was issued in August 2011. A substantive appeal (VA Form-9) was filed in September 2011. A Supplemental Statement of the Case (SSOC) was issued in October 2016.

In his substantive appeal, the Appellant requested a hearing before the Board in Washington, DC. However, in July 2012, the Appellant cancelled the hearing request, in writing. Accordingly, the Board will proceed to a decision on this appeal without such hearing. See 38 C.F.R. § 20.704(e). 

The Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development in June 2016. The appeal is now before the Board for further appellate action.  

The Board reviewed the Veteran's electronic claims file which includes records in Virtual VA and Veterans Benefits Management System (VBMS) databases prior to rendering its decision. 

FINDINGS OF FACT

1. At the time of her death, the Veteran was service-connected for sinusitis, rated as 10 percent disabling and noncompensable cholecystectomy.
2. The Veteran died in October 2009. The official death certificate listed malnutrition as due to malabsorption as the cause of death.

3. Pursuant to VA regulations, VA presumes that the Veteran was exposed to herbicides in service during her Vietnam tour.

4. The Veteran's cause of death was not related to her military service, to include herbicide exposure; nor did her service-connected disabilities cause or substantially contribute to her death. 


CONCLUSION OF LAW

The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

In a May 2010 letter, VA notified the Appellant of the evidence required to substantiate his claim. The Appellant was informed of the evidence VA would attempt to obtain and of the evidence that the Appellant was responsible for providing. See Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5103, 5103A; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Neither the Appellant nor his representative has raised any 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 duty to assist argument). The Board finds that the VCAA requirements to notify and assist have been satisfied in this appeal.

In June 2016, the Board remanded the case for additional development. The Board finds that the RO has substantially complied with the remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 

II. Service Connection for Cause of Death 

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a).

In general, service connection requires competent, credible evidence showing: (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.  See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). 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. Id. 

If a Veteran was exposed to herbicides during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C.A.         § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of that disease during service, provided that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R.                 § 3.309 (e). 

A Veteran 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 herbicides, unless there is affirmative evidence to establish that the Veteran was not exposed to herbicides during that service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116 (f); 
38 C.F.R. § 3.307 (a)(6)(iii). The list of presumptive diseases for exposure to herbicides does not include malabsorption. See 38 C.F.R. § 3.309 (e). 

A surviving spouse of a qualifying veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.


Factual Background and Analysis

The Appellant contends that the Veteran's death is related to her service, to include herbicide exposure. The Board finds that the record evidence preponderates against a finding in favor of the Appellant's claim that the Veteran's service-connected disabilities and/or herbicide exposure caused, or significantly or materially contributed to the Veteran's death.

The Veteran was diagnosed with malabsorption syndrome in January 2007 and with ileus, generalized gastrointestinal (GI) malabsorption, in January 2008, approximately 2 years prior to her death in October 2009. The official death certificate listed malnutrition, as due to malabsorption, as the cause of death.  

Service treatment records (STRs) indicated that the Veteran was diagnosed with acute cholecystitis; probably gastroduodenitis in December 1968. In December 1968, the Veteran underwent a cholecystectomy. STRs indicated that the Veteran complained of nausea, vomiting, abdominal distress, and an inability to eat. The Veteran reportedly lost 20 pounds. STRs indicated that the Veteran's GI symptoms were attributable to her diagnosed acute cholecystitis. STRs did not include treatment for, or a diagnosis of malabsorption and/or malnutrition. 

Treatment records ranging from 1973 through 1986 indicated that the Veteran complained of vomiting and "generally [feeling] sick since November 1972." Treatment records indicated an acute gastroenteritis diagnosis and treatment for various gynecological disorders, including a total abdominal hysterectomy, in August 1975.   

A December 1986 VA Agent Orange examination report indicated that the Veteran experienced weight loss attributed to her December 1968 cholecystectomy, episodes of weight loss, and weighed 92 pounds on the day of examination. 

In a November 2009 medical opinion, the Veteran's private physician opined that he treated the Veteran for 20 years for malabsorption and that he could not determine the etiology of the condition. The examiner opined that although there is no scientific proof that exposure to Agent Orange is etiologically related to malabsorption, there is a reasonable possibility that the Veteran's exposure contributed to her physical condition.

An August 2010 VA medical examiner opined that it is less likely as not that the Veteran's death was produced by exposure to Agent Orange. The examiner reasoned that the Veteran was normal on physical examination in 1982. The Veteran had multiple abdominal surgeries over the years. The Veteran developed malabsorption and weight loss in 2007-2008, in which initial investigations were negative and the Veteran refused further assessments. The Veteran was treated for pancreatic insufficiency, depression, and dementia. The Veteran was exposed to Agent Orange in 1968-1969. Currently, there is no scientific proof and/or studies connecting malabsorption to Agent Orange exposure. The examiner opined that the Veteran's cause of death, malabsorption, is less likely as not caused by exposure to Agent Orange.   

In October 2016, a VA examiner opined that it was less likely as not that the Veteran's malabsorption or malnutrition, which produced her death, was related to her military service. According to the examiner, medical literature, including Harrison's Principles of Internal Medicine, does not name Agent Orange as a cause of malabsorption or malnutrition. The examiner noted that the Veteran's recent medical history, prior to death, included dementia. According to the examiner, dementia is a known cause of malnutrition. The examiner noted that the Veteran did not develop malabsorption until 2007-2008, after having undergone vagotomy, over sewing of a duodenal ulcer, and antrectomy. The examiner opined that the procedures were more likely the cause of the Veteran's malabsorption and malnutrition. The examiner noted that the Veteran's diarrhea had stopped with pancrease (she had known pancreatic insufficiency). The examiner considered the Veteran's chest x-ray from January 2008, which showed "prominent findings of chronic obstructive pulmonary disease (COPD)" and pulmonary hyperinflation. The examiner noted that COPD can also cause decreased appetite. The examiner ultimately concluded that it is less likely as not that the Veteran's malabsorption or malnutrition are related to service, due to its onset many years after service, and that there are no known complications of her service-connected conditions during, or around the time of service.

With regard to the Veteran's service-connected cholecystectomy, the November 2016 VA examiner opined that the procedure occurred decades prior to the Veteran's death. The examiner noted that this type of surgery generally is free of long term complications, as was the case with the Veteran. The examiner expounded on the complications attributable to cholecystectomy. Specifically, that post-cholecystectomy syndrome can occur in about 10 percent of patients, which can include dyspepsia, nausea, vomiting, flatulence, bloating, diarrhea, and persistent right upper quadrant pain. The symptoms can be short term or chronic. The examiner emphasized the fact that none of the symptoms were noted in the Veteran's STRs or separation examination report. According to the examiner, the Veteran was therefore presumed to have no acute evidence of post- cholecystectomy syndrome. The examiner reasoned that therefore, the Veteran would not have long term symptoms after the December 1968 procedure. 

The October 2016 examiner noted that the Veteran's STRs were otherwise unremarkable, despite treatment for dysmenorrhea and few other complaints. The Veteran's December 1982 examination report did not include any GI complaints. The examiner concluded that there is no evidentiary basis that the Veteran's December 1968 cholecystectomy has led to, or been related to, the medical events leading up to the Veteran's death. According to the examiner, medical relation of the Veteran's death to any of her service-connected conditions, or their treatments, is not identified. See Harrison's Principles of Internal Medicine. The examiner ultimately concluded that it is less likely as not that the Veteran's service-connected conditions caused, or substantially or materially contributed to her death, combined to cause death, or aided or lent assistance to the production of death.

In support of his claim, the Appellant's representative cited medical treatise evidence, which associated pancreatic insufficiency and diabetes mellitus with exposure to Agent Orange.  

The Board has considered the record evidence, and finds that the most probative evidence is against a finding that the Veteran's service-connected conditions and/or her herbicide exposure caused or contributed substantially or materially to producing the Veteran's death. The Veteran's official cause of death was malnutrition, as due to malabsorption. STRs indicated that the Veteran was not treated for, or diagnosed with, malabsorption syndrome in service. December 1968 STRs indicated that the Veteran was diagnosed with acute cholecystitis and experienced weight loss in service. However, the Veteran's weight loss and related abdominal distress, including nausea and vomiting, were attributed to her diagnosed cholecystitis and the Veteran subsequently underwent a cholecystectomy shortly after her cholecystitis diagnosis. 

The Board observes the clinical evidence of the Veteran's extensive medical history of abdominal and GI complications. The Board notes the Veteran's private physician's opinion in which the physician revealed that the etiology of the Veteran's malabsorption is unknown. The October 2016 VA examiner opined that the Veteran's service-connected cholecystitis did not cause or significantly contribute to producing the Veteran's death. According to the examiner, short-term or chronic post-cholecystectomy syndrome occurs in 10 percent of the patients who have the procedure. The clinical evidence indicated that the Veteran did not report complications attributable to her December 1968 cholecystectomy on her December 1969 separation examination report. The examiner opined that the Veteran did not exhibit acute short-term symptoms and therefore would not exhibit long term post-cholecystectomy symptoms. Most critically, the examiner noted that there is no medical relation between the Veteran's service-connected cholecystectomy and malabsorption, which produced the Veteran's death. Most critically, the examiner noted that the Veteran was diagnosed with malabsorption in 2007-2008, after having undergone vagotomy, over sewing of a duodenal ulcer, and antrectomy. It is the examiner's opinion that these procedures more likely caused the Veteran's malabsorption and malnutrition. 

With regard to the Appellant's claim that the Veteran's herbicide exposure significantly or materially contributed to, or caused the Veteran's death, the Veteran's private physician opined that there is a reasonable possibility that the Veteran's herbicide exposure contributed to her death. Conversely, however, the physician opined that that "there is no scientific proof that exposure to Agent Orange is etiologically related to malabsorption."  

The August 2010 VA examiner opined that it is less likely as not that he Veteran's Agent Orange exposure produced her death. The examiner considered the Veteran's normal physical examination in December 1982 and multiple abdominal surgeries since separation. The examiner further opined that the Veteran developed malabsorption and weight loss in 2007-2008, in which initial investigations were negative. Most critically, the VA examiner noted that "there is no scientific proof and/or studies connecting malabsorption and Agent Orange exposure." 

The October 2016 examiner reiterated the private physician's and the August 2010 VA examiner's assessments. The examiner noted that medical literature does not link malabsorption or malnutrition to Agent Orange exposure. The examiner noted the Veteran's medical history of dementia, vagotomy, oversewing of duodenal ulcer, antrectomy, and COPD as potential causes of the Veteran's decreased appetite. Notably, the examiner opined that vagotomy, oversewing of duodenal ulcer, and antrectomy are more likely the cause of the malabsorption and malnutrition. The examiner concluded that it is less likely as not that the Veteran's malabsorption or malnutrition were related to service, to include Agent Orange exposure, and ultimately produced her death. 

It is well established that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  As such, when reviewing medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993). As such, the August 2010 and October 2016 VA medical opinions are afforded significant probative value as they speak to the question at hand, whether the Veteran's service-connected conditions and/or her herbicide exposure caused or contributed substantially or materially in producing the Veteran's death. The Board finds that the medical evidence is against a finding that the Veteran's death was caused or substantially caused by service. 

In so finding, the Board observes that the record evidence indicated that the Veteran was not diagnosed with malabsorption syndrome and ileus, generalized gastrointestinal malabsorption, until January 2007 and January 2008, respectively, approximately 38 years after service and 2 years before her death. Pursuant to 38 C.F.R. § 3.309(e), malabsorption is not a disease associated with herbicide exposure.    

In support of the Appellant's claim, his representative cited to medical treatise articles that associated pancreatic insufficiency and diabetes mellitus to Agent Orange exposure. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1). However, the Court held that "if such [medical treatise] evidence is presented, it must demonstrate a connection between service incurrence and a present injury or condition." Supra at 513 (citing Libertine v. Brown, 9 Vet. App. 521 (1996).   While the articles address the potential relationship between pancreatic insufficiency and diabetes mellitus, they do not contain any information or analysis specific to the Veteran's case with regard to the nexus/relationship between the Veteran's service-connected cholecystectomy, herbicide exposure, and the Veteran's official cause of death. The Board notes that the Veteran was not service-connected for pancreatic insufficiency or diabetes mellitus. Additionally, neither disorder was listed on the death certificate as the Veteran's official cause of death. As such, the article evidence cited by the Veteran's representative is of no  probative value. 

For the foregoing reasons, the Board finds that service connection for the cause of the Veteran's death, to include as due to herbicide exposure must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra.

ORDER

Service connection for the cause of the Veteran's death, to include as due to herbicide exposure is denied. 



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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