Citation Nr: 0000391 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-13 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from May 1966 to August 1967. He died in July 1997. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana (RO). FINDINGS OF FACT 1. The veteran died in July 1997. 2. The immediate cause of the veteran's death was hemorrhagic pancreatitis, with acute alcoholic pancreatitis as a significant condition contributing to death but not resulting in the underlying cause of death. 3. At the time of the veteran's death, service connection had been established for lumbosacral strain, evaluated as 40 percent disabling, left leg shell fragment wound residuals, assigned a 30 percent rating, and right leg shell fragment wound residuals, evaluated as 10 percent disabling. A total rating for compensation purposes based upon individual unemployability was also in effect at the time of his death. 4. There is no medical evidence showing a nexus between hemorrhagic pancreatitis nor acute alcoholic pancreatitis and service, or to any alleged incident therein, to include exposure to Agent Orange. 5. Service-connected disabilities, either singularly or collectively, were not related to the cause of the veteran's death, contributed to or accelerated his death, or rendered him materially less capable of resisting death. CONCLUSION OF LAW The claim of entitlement to service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION For a grant of service connection for the cause of death, pertinent regulations require a showing that either the fatal disease was incurred in or aggravated by service or, in some instances, was manifest to a compensable degree within one year of service discharge. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In the absence of such evidence, the regulations require a showing that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. §§ 3.310(a), 3.312 (1999). 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; 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). In making a claim for service connection for a disorder, including a disorder which caused the death of a veteran, the claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (Court) has defined the term "well-grounded claim" as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has further noted that "[a]lthough the claim need not be conclusive, the statute provides that it must be accompanied by evidence." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); 38 U.S.C.A. § 5107(a) (West 1991). Moreover, the Court has stated that "[t]he quality and quantity of the evidence required to meet this statutory burden . . . will depend upon the issue presented by the claim." Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Where the issue in a case is factual, competent lay evidence may suffice; however, "where the determination involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Id. at 93. The appellant believes that the veteran died as a result of a service-connected disability. She further asserts that the veteran's terminal hemorrhagic pancreatitis, or "cancer," resulted from exposure to Agent Orange while serving on active duty in Vietnam. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases set forth in 38 C.F.R. 3.309(e) (1999) shall be service connected if the requirements of 38 C.F.R. 3.307(a)(6) (1999) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 3.307(d) are also satisfied. These diseases include chloracne, Hodgkin's disease, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (including cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. 3.309(e). Further, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at 3.309(e) 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. 38 C.F.R. 3.307(a)(6)(iii). 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 Vietnam era. Id. The Court issued a precedential decision which held that this presumption of inservice herbicide exposure applied only in cases where a veteran both served in the Republic of Vietnam during the designated time period and subsequently developed one of the diseases listed in 38 C.F.R. 3.309(e), as described above. See McCartt v. West, 12 Vet. App. 164 (1999). A review of the diseases which may be presumptively service connected under 38 C.F.R. 3.309(e) reveals that hemorrhagic pancreatitis is not included among the listed disorders. Therefore, the appellant is unable to take advantage of the presumptive provisions of this regulation, and must provide evidence that the veteran: (1) was exposed to Agent Orange in service; and (2) that the veteran's hemorrhagic pancreatitis was related to such exposure. The veteran died in July 1997. The Certificate of Death, dated in September 1997, shows that the immediate cause of the veteran's death was hemorrhagic pancreatitis, with acute alcoholic pancreatitis as a significant condition contributing to death but not resulting in the underlying cause of death. The certificate also noted that an autopsy was performed and that the autopsy findings were available prior to completion of the cause of death determination. At the time of his death, service connection was in effect for lumbosacral strain, evaluated as 40 percent disabling; left leg shell fragment wound residuals, evaluated as 30 percent disabling; and right leg shell fragment wound residuals, evaluated as 10 percent disabling. A total rating for compensation purposes based upon individual unemployability was also in effect at the time of his death. A review of the private terminal hospital records, dated in July 1997, shows that on admission the veteran was suffering from overwhelming shock/systemic inflammatory response syndrome; metabolic acidosis, renal failure, and respiratory failure, all secondary to the shock; fixed and dilated pupils secondary to anoxic encephalopathy; status post cardiac arrest; and hyponatremia. It was noted that the veteran's prognosis was extremely poor and he was not anticipated to survive the night. The admission report also noted that the veteran had been transferred to that medical facility from the emergency room of another private hospital by helicopter the previous evening, where the veteran apparently had a cardiac arrest. The hospital death summary, dated the day following the veteran's hospital admission, shows the following diagnoses: overwhelming systemic inflammatory response syndrome; refractory hypotension, renal failure, respiratory failure, thrombocytopenia, anoxic encephalopathy, status post cardiac arrest, gastrointestinal bleeding, adult respiratory distress syndrome, history of ethanol use, and pancreatitis. A Medical Certificate dated in November 1989, shows that in the course of being treated for a skin rash it was noted that the veteran was an "Agent Orange victim." Review of this medical certificate shows that the reference to the veteran having been a "victim" of Agent Orange is contained in the history portion of the report, and that this was not reported as a diagnosis on the medical report. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional). Parenthetically, the Board notes that the RO in July 1994 denied a claim for service connection for a skin rash secondary to Agent Orange exposure, finding that the available scientific and medical evidence did not support the conclusion that the condition at issue was associated with herbicide exposure, and that there as no other basis for service connection. Although the appellant claims that the hemorrhagic pancreatitis was, in essence, a "cancer' which was caused by his exposure to Agent Orange while in the service, there is no medical evidence to support this contention. Additionally, the appellant has claimed that the autopsy report shows a history of Agent Orange exposure. However, a review of the death certificate shows that the autopsy report findings were available to the physician who supplied the cause of death portion of the death certificate, which made no mention of Agent Orange exposure. Most importantly, there is no evidence of record that relates any alleged Agent Orange exposure to the veteran's terminal disease, hemorrhagic pancreatitis. In effect, the only evidence contained in the claims file which would tend to establish that the veteran was exposed to Agent Orange in service, and further, that his terminal hemorrhagic pancreatitis was related to such exposure, is the appellant's own contentions. The Board does not doubt the sincerity of the appellant's belief in this claimed causal connection. However, as the appellant has not been shown to be a medical expert, she is not qualified to express an authoritative and probative opinion regarding any medical causation of the disease or condition which led to the veteran's death. As it is the province of trained health care professionals to enter conclusions which require medical expertise, such as opinions as to diagnosis and causation, the appellant's lay opinions cannot be accepted as competent evidence to the extent that they purport to establish such medical causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994); see also Grottveit, 5 Vet. App. at 92-93 (in which the Court held that an appellant does not meet his or her burden of presenting evidence of a well-grounded claim where the determinative issue involves medical causation and the appellant presents only lay testimony by persons not competent to offer medical opinions.) Additionally, the appellant has failed to provide any competent medical evidence relating the veteran's hemorrhagic pancreatitis to any of his service-connected disabilities. The Board finds that the evidence of record is devoid of medical evidence which goes to support the appellant's claim that the veteran's service-connected disabilities, either singularly or collectively, were related to the cause of the veteran's death, contributed to or accelerated his death, or rendered him materially less capable of resisting death. The record fails to show that a service-connected disability caused, hastened, or substantially and materially contributed to the veteran's death. In addition, there is no medical evidence of record which goes to indicate that the veteran's pancreatitis was caused by exposure to Agent Orange. Accordingly, because the appellant has failed to produce any competent medical evidence of any connection between the cause of the veteran's death to either his service-connected disabilities or to his alleged exposure to Agent Orange exposure, her claim for service connection for the cause of the veteran's death must be denied. ORDER Service connection for the cause of the veteran's death is denied. JOY A. MCDONALD Acting Member, Board of Veterans' Appeals