Citation Nr: 0201584 Decision Date: 02/15/02 Archive Date: 02/20/02 DOCKET NO. 95-07 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Joseph P. Moore, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The veteran served on active duty from June 1968 to January 1982. He passed away in October 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of August 1994, from the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant's claim for service connection for the cause of the veteran's death was denied in a Board decision, dated in March 2000. On appeal to the United States Court of Appeals for Veterans Claims, formerly the United States Court of Veterans Appeals, and hereinafter the Court, vacated the Board's decision and remanded the case to the Board for "compliance with the instructions" in Joint Motion for Remand. Specifically, the Board was instructed to comply with the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). A Board hearing was held in March 1997, before Nancy I. Phillips, who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991 & Supp. 1997). A transcript of the hearing was prepared and included in the claims folder for review. Since that hearing, Ms. Phillips left the Board, and the appellant was contacted and asked whether she desired another hearing before a different Board member. The appellant responded negatively and requested that her claim be processed. The appellant is the veteran's widow. At the time of the veteran's death, he was not in receipt of any VA compensation benefits. FINDINGS OF FACT 1. Sufficient evidence is of record for an equitable disposition of the veteran's claim. 2. The veteran served in the Republic of Vietnam. 3. Prior to his death, he was not in receipt of any VA compensation benefits. 4. The veteran died on October [redacted], 1987; the Certificate of Death reported that the veteran's immediate cause of death was cardio-respiratory arrest due to thoracic carcinoma. The veteran's thoracic carcinoma (bilateral lung metastases) was the result of anaplastic carcinoma of the thyroid. 5. The appellant has claimed that the veteran's thyroid cancer was the result of exposure to chemical dioxins (Agent Orange) while serving in the Republic of Vietnam. 6. Three opinions have been presented by the appellant linking the veteran's exposure to chemical dioxins while in Vietnam with the veteran's development of anaplastic carcinoma of the thyroid. Said condition contributed to and/or ultimately caused the veteran's death. CONCLUSIONS OF LAW 1. VA has satisfied its duty to assist the veteran in developing facts pertinent to the claim. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2096-2097 (2000) (to be codified at 38 U.S.C. § 5107); 38 C.F.R. § 3.103 (2001). 2. Service connection for anaplastic carcinoma of the thyroid with bilateral lung metastases secondary to exposure to Agent Orange (chemical dioxins) is warranted. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001); 38 C.F.R. § 3.303 (2001). 3. Resolving reasonable doubt in the appellant's favor, the veteran's death was the proximate result of his military service. 38 U.S.C.A. §§ 1310 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.306, 3.312, 20.1106 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's husband was stationed in the Republic of Vietnam while serving in the US Army. He was released from active duty in January 1982. Approximately five and one half years later, the veteran passed away as a result of anaplastic carcinoma of the thyroid with bilateral lung metastases. Shortly after the veteran's death, his widow, the appellant, applied for dependency and indemnity compensation (DIC) benefits. She originally claimed that the veteran's death was caused by or the result of his military service. Her claim was denied in February 1988. The appellant then modified her claim stating that the veteran's thyroid cancer was caused by or the result of his exposure to chemical dioxins. She stated that the veteran was exposed to these dioxins while he was serving in the Republic of Vietnam. The RO denied the appellant's request for benefits and she has appealed to the Board. Based on the information that has been presented, it is the conclusion of the Board that the evidence does support the appellant's claim for entitlement to service connection for the cause of the veteran's death secondary to exposure to chemical dioxins. The facts and reasoning behind this conclusion is offered below. Because of a sore throat, a loss of weight, and blackouts, the veteran sought treatment at his local VA medical center in October 1987. Upon examination, a huge mass on both sides of the neck was noted. A biopsy was accomplished and said biopsy revealed anaplastic carcinoma of the thyroid. It was further discovered that the carcinoma had metastasized to the lungs. Unfortunately, a prognosis of poor was given and the veteran shortly died thereafter. A Certificate of Death was issued showing that the veteran passed away on October [redacted], 1987. The immediate cause of death listed on the death certificate was sudden cardio- respiratory arrest due to or as a consequence of thoracic carcinoma. Four years later, in September 1991, and after the appellant had been denied dependency and indemnity compensation (cause of death) by the VA, she was awarded a financial sum via the Agent Orange Payment Program. Following the inclusion of her husband in this program, the appellant once again submitted a claim for benefits to the VA. To support her claim, the appellant submitted numerous medical treatises, newspaper articles, and technical bulletins. These materials pertained to the incidence, cause, and diagnosis of thyroid cancer. Further documents noted that the herbicide "Bromacil" was among the many herbicides used in Vietnam. These same reports noted that Bromacil was known to affect the thyroid gland and was considered a possible, probable carcinogen in humans. Also proffered by the claimant was a statement, dated January 1997, by Dr. T. Calhoun from the Tuskegee Institute, who wrote: . . . patient has a history of having been exposed to Agent Orange while in Vietnam. Patient subsequently developed anaplastic thyroid cancer. It is my opinion that his cancer could have been caused by his exposure to Agent Orange since it is known that this agent is carcinogenic. The appellant appeared before the Board in March 1997. She testified that while her husband was in Vietnam, he mixed the herbicide Bromacil for three months, that the "Ranch Hand" study disclosed that Bromacil was used in Vietnam, and that an Environmental Protection Agency fact sheet showed that thyroid cancers evolved over a period of thirty years. She averred that "but for" the veteran's exposure to chemical dioxins in Vietnam, he would not have developed thyroid cancer, which, in turn, lead to her husband's death. To fulfill the VA's duty to assist, the RO contacted the US Army & Joint Services Environmental Support Group (ESG). The RO asked whether ESG could verify the veteran's exposure to Bromacil during his tour of duty in Vietnam. In September 1997, ESG reported that it was unable to pinpoint the location of Bromacil use. Submitted by the appellant was a written document by Doctors Stephen M. Roberts and N. Christine Halmes. The document was dated December 1997. The wrote that they had reviewed various pieces of medical literature looking for a nexus between exposure to chemical dioxins used in Vietnam and thyroid cancer. They stated that they were unable to comment specifically on the cause of the veteran's cancer, but that they could discuss the epidemiological evidence found in the literature concerning herbicide orange exposure and thyroid carcinoma in general. Doctors Roberts and Halmes located two epidemiological studies that implicated exposure to tetrachloro-dibenso-p-dioxin (TCDD), a herbicide contaminant, with thyroid cancer. Two of the studies, per Roberts and Halmes, indicated that there was an association between TCDD, commonly referred to as dioxin, and thyroid cancer. TCDD was classified by IARC as a known carcinogen, and there had been increased deaths due to thyroid cancer in persons occupationally and accidentally exposed. While a causal relationship between TCDD and thyroid cancer had not been clearly established, the doctors stated that the evidence for such an association appeared to be at least as strong as for other cancers that VA accepted as attributable to TCDD, such as Hodgkin's disease, lung cancer, and multiple myeloma. They enclosed copies of the medical journals they cited including one concerning mortality in workers exposed to chlorophenoxy herbicides and chlorophenols, and an update of mortality among chemical workers exposed to the herbicide 2, 4-Dichlorophhenoxyacetic acid and its derivatives. In February 1998, a VA specialist in thyroid and parathyroid diseases reviewed the claims folder and much of the pertinent literature involving the causation of thyroid cancer by Agent Orange. He stated that it was impossible in any one patient to say whether a chemical was indeed the cause of their cancer. After his review of the literature, he opined that there was inconclusive evidence that thyroid cancer was caused by Agent Orange exposure. The Institute of Medicine [IOM] in its review of the literature concurred with the VA specialist's conclusion. That is, the IOM reported that there was no convincing evidence that thyroid cancer was caused by Agent Orange. The VA's Chief Public Health and Environmental Hazards Officers [CPHEHO] furnished a medical opinion, after requested, in December 1998. The CPHEHO noted that published reports of the IOM did not specifically address thyroid cancers. With respect to the studies cited by Doctors Roberts and Halmes, which implicated dioxins with thyroid cancer, the CPHEHO stated that neither study could be considered statistically significant since their 95 percent confidence intervals encompassed values indicating no increase. It was the CPHEHO's opinion that it was possible that the veteran's fatal thyroid cancer could be related to exposure to chemical dioxins. However, the CPHEHO could not state that it was likely or at least as likely, as not, that such exposure was responsible. An independent medical evaluation was obtained in November 2001. The review by Dr. C. N. Bash, a neuro-radiologist, and associate professor of radiology and nuclear medicine of the Uniformed Services University of the Health Services, stated: It is my opinion that it is likely that this patient's thyroid cancer and death was caused by his exposure to TCDD during service time. This opinion is consistent with the animal studies, human exposure studies and the opinions of Dr. Calhoun and PhD's Roberts/Halmes. This opinion is contrary to the opinions of Drs. Mather and Sutton and I have discounted their opinions for the following reasons: 1. They do not comment on the opinion of Dr. Calhoun in the record, which indicates that they may have not had access to the entire claims record. 2. They do not provide any literature to support their opinions and Dr. Sutton inaccurately quotes the IOM report (see above). 3. They do not discuss the animal studies, which support a causative relationship. 4. Dr. Mather does not fully evaluate the literature provided by Ph.D.'s Roberts/Halmes concerning the relative risk of TCDD to thyroid cancer as it relates to the as likely as not test used by the VA. 5. Dr. Mather inaccurately discounts the studies identified by Ph.D.'s Roberts/Halmes because the[ir] confidence intervals include values indicating no increase. To support the appellant's claim, she has also provided numerous written statements concerning her contentions. She has continued to claim that the veteran's exposure to chemical dioxins during his tour of duty in Vietnam precipitated the veteran's anaplastic carcinoma of the thyroid with bilateral lung metastases, which, in turn, contributed to the veteran's death. When an individual submits a claim before the VA, VA has the duty to assist him or her with that claim. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-47, 114 Stat. 2096 (2000). These responsibilities may include, as appropriate: furnishing appropriate claims forms and instructions, reviewing the application for benefits for completeness, and, if additional information is needed from the claimant, notifying the claimant of the information required to complete the application (Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096 (2000) (to be codified as amended at 38 U.S.C. § 5102)); on receipt of a substantially complete application, telling the claimant what further lay or medical evidence may be necessary to substantiate the claim, what evidence the claimant should provide, and what evidence the Department will attempt to obtain on behalf of the claimant (Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-97 (2000) (to be codified as amended at 38 U.S.C. § 5103)); if a reasonable possibility exists that assistance would aid in substantiating the claim, making reasonable efforts to obtain relevant records that the claimant adequately identifies and authorizes the Secretary to obtain, and telling the claimant if VA is unable to obtain the records (Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A(b))). Additionally, in cases of disability compensation, the VA is responsible for obtaining service medical records and other relevant records pertaining to active military service that are held by a governmental entity, obtaining VA medical treatment or examination reports if the claimant provides sufficient information to locate the records, and obtaining any other relevant Federal records that the claimant adequately identifies and authorizes the Secretary to obtain (Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A(c))); and providing a medical examination or obtaining a medical opinion if necessary to make a decision on the claim (Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A(d))). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. The evidence includes the veteran's service medical records, post-service medical treatment records, and service personnel records. The appellant and her representative have been given the opportunity to provide additional medical and written statements. The appellant has been offered the chance to provide testimony before the RO and the Board, and she did so in March 1997. The Board does not know of any additional relevant evidence that may be available. Therefore, no further assistance to the appellant with the development of evidence is required. Hence, the Board concludes that requirements regarding notice which must be provided to the veteran pursuant to the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096, 2097-98 (2000) have been satisfied by the letters and statements of the case which were provided to the appellant and her representative by the RO. The surviving spouse of a veteran who has died of a service- connected or compensable disability may be entitled to receive dependency and indemnity compensation [DIC]. 38 U.S.C.A. § 1310 (West 1991); Wray v. Brown, 7 Vet. App. 488 (1995). "The death of the 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) (2001). The appellant will be entitled to service connection for the cause of death if it is shown that the service-connected disabilities ". . . contributed substantially or materially" to cause death; "that [they] combined to cause death; that [they] aided or lent assistance to the production of death." See 38 C.F.R. § 3.312(c)(1) (2001). However, service-connected disabilities of a ". . . static nature involving muscular or skeletal functions and not materially affecting other vital body functions" will not be held to have contributed to death resulting primarily from some other cause. 38 C.F.R. § 3.312(c)(2) (2001). The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C.A. § 1310 (West 1991). Issues involved in a claim for DIC are decided without regard to any prior disposition of those issues during the veteran's lifetime. 38 C.F.R. § 20.1106 (2001). Additionally, in Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992), the United States Court of Appeals for Veterans Claims (the Court) stated the following: Further, in cases where the primary cause of death is so "overwhelming" that death would have resulted regardless of the existence of a service-connected disability, a service-connected condition may be found to be a contributory cause of death where that condition has had a "material influence in accelerating death" because it "affected a vital organ and was of itself progressive or debilitating [in] nature". Service connection may be established for a current disability in several ways including on a "direct" basis. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001); 38 C.F.R. §§ 3.303(a), 3.304 (2001). Direct service connection may be established for a current disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (2001). Establishing direct service connection for a disability which has not been clearly shown in service requires evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and, (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (2001); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) (2001) are met, even there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, porphyria cutanea tarda, respiratory cancers, prostate cancer, peripheral neuropathy (in limited situations) and soft-tissue sarcomas. 38 C.F.R. § 3.309(e) (2001). However, if the rebuttable presumptions of 38 C.F.R. § 3.307(d) (2001) are also not satisfied, then the veteran's, or in this case, the appellant's, claim shall fail. The veteran had service in the Republic of Vietnam during his military career. Per Section 201(c) of the "Veterans Education and Benefits Expansion Act of 2001", Pub. L. No. 107-_______ (H.R. 1291) (Dec. 27, 2001), all veterans who served in the Republic of Vietnam are presumed to have been exposed to chemical dioxins (herbicides/Agent Orange) during their service. Thus, the Board concedes that the veteran was exposed to chemical dioxins during his tenure in Vietnam. However, even though the veteran was in Vietnam and herbicide exposure is presumed, anaplastic carcinoma of the thyroid is not a disability for which presumptive service connection based upon exposure to Agent Orange may be granted. Moreover, the Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; nasal and/or nasopharyngeal cancer; bone cancer; breast cancer; female reproductive cancers; urinary bladder cancer; renal cancer; testicular cancer; leukemia; abnormal sperm parameters and infertility; motor/coordination dysfunction; chronic peripheral nervous system disorders; metabolic and digestive disorders (other than diabetes mellitus); immune system disorders; circulatory disorders; respiratory disorders (other than certain respiratory cancers); skin cancer; cognitive and neuropsychiatric effects; gastrointestinal tumors; brain tumors; and, any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 64 Fed. Reg. 59232 (1999). Service connection may not be established for any of these conditions if the claimed condition is due to the veteran's own willful misconduct or if there is affirmative evidence that establishes a nonservice-related condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316 (2001). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that specific VA regulations which provide for presumptive service connection for disabilities resulting from exposure to various toxins such as radiation or Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The court has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). In order to prevail on a direct basis the appellant would have to provide competent medical evidence which relates the veteran's cause of death to chemical dioxins during her husband's period of active service. The Board notes that the veteran's cancer was not shown to have begun while the veteran was still in the US Army. He developed the cancer nearly six years after his release from active duty, and medical evidence has been presented by the appellant linking the veteran's cancer with his exposure to Agent Orange while he was stationed in Vietnam. As reported above, numerous VA medical specialists have reviewed the veteran's medical records and a variety of articles on the subject, and the veteran's widow has proffered the opinions from three different sources that have either acknowledged the likelihood of a connection between the cancer and chemical dioxins or have etiological related the veteran's cancer and chemical dioxins. In view of the foregoing, the Board finds that the evidence is, at least, in equipoise. Because the evidence is in equipoise, and since the appellant is supposed to be afforded the benefit-of-the- doubt, the Board concludes that the veteran's anaplastic carcinoma of the thyroid with bilateral lung metastases was caused by his exposure to dioxins while in service. Moreover, since this condition was the primary cause of the veteran's death, in accordance with the above cited regulations, service connection for the cause of the veteran's death is granted. ORDER Entitlement to service connection for the cause of the veteran's death is granted. M. W. GREENSTREET Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.