Citation Nr: 0612922 Decision Date: 05/03/06 Archive Date: 05/15/06 DOCKET NO. 00-24 295A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependents' educational assistance benefits under 38 U.S.C.A. Chapter 35. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran served on active duty for more than twenty years and retired in September 1971. He died on May [redacted], 1995. The appellant is his widow. These matters come to the Board of Veterans' Appeals (Board) from a July 1997 RO rating decision that denied service connection for the cause of the veteran's death, and denied dependents' educational assistance benefits under 38 U.S.C.A. Chapter 35. The appellant filed a notice of disagreement in October 1997, and the RO issued a statement of the case in December 1997. The appellant filed a substantive appeal in January 1998. In July 1999, the Board denied service connection for the cause of the veteran's death on the basis that the claim was not well grounded. In November 1999, the appellant requested reconsideration of the Board's July 1999 decision and submitted new evidence in support of the request. In January 2000, the RO reopened the appellant's claims, but then denied service connection for the cause of the veteran's death on the basis that the claim was not well grounded. In July 2001, the appellant testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the appellant waived initial consideration by the RO of additional evidence submitted directly to the Board, permitting the Board to consider such evidence in the first instance. In October 2001, following enactment of the Veterans Claims Assistance Act of 2000 (VCAA) in November 2000, the Board found that de novo review of the question of service connection for the cause of the veteran's death was appropriate, and remanded these matters to the RO for additional development. In March 2003, the RO issued a supplemental SOC (SSOC), reflecting the continued denial of the claims for service connection for the cause of the veteran's death, and for dependents' educational assistance benefits under 38 U.S.C.A. Chapter 35. In a July 2003 decision, the Board denied service connection each of the claims on appeal. The appellant appealed the July 2003 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2004 joint motion to the Court, counsel for both parties requested that the July 2003 Board decision be vacated and remanded for the Board to address whether the duties to notify under the VCAA have been satisfied, and for the Board to consider "all ... applicable provisions of law" in this case. In an October 2004 order, the Court granted the parties' motion, returning the matters on appeal for service connection for the cause of the veteran's death, and for eligibility for Chapter 35 benefits to the Board for further proceedings consistent with the joint motion. In response to the Board's November 2004 correspondence, in February 2005, the appellant's attorney submitted additional evidence directly to the Board, waiving initial consideration of the evidence by the RO; the appellant's waiver and additional evidence are of record. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2005). In February 2005, the Board, in compliance with the Court Order, remanded these matters to the RO to afford the appellant due process. In July 2005, the RO issued a supplemental SOC (SSOC), reflecting the continued denial of the claims on appeal. In December 2005, the appellant's attorney notified the RO of the appellant's change in residence to Raleigh, North Carolina, and requested that the claims file be transferred to the RO in North Carolina. In March 2006, the RO notified the appellant and the appellant's attorney that the claims file would not be transferred to the Winston-Salem RO at this time as the claims file first had to be sent to the Board for further action. These matters are now before the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims for service connection for the cause of the veteran's death, and for dependents' educational assistance benefits under 38 U.S.C.A. Chapter 35, has been accomplished. 2. The veteran died in May 1995. The death certificate lists the cause of death as cancer of the pharynx; tobacco was noted to be another 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 was not in effect for any disabilities, and there was no claim for service connection pending before VA. 4. While the veteran had active service in the Republic of Vietnam during the Vietnam era, and is presumed exposed to herbicide agents, including Agent Orange, during service, cancer of the pharynx is not among the disabilities recognized by VA as etiologically related to herbicide (Agent Orange) exposure in Vietnam. 6. The weight of the competent evidence supports a finding that the veteran's cancer of the pharynx, causing his death, is more likely than not the result of Agent Orange exposure during the veteran's period of active service. CONCLUSION OF LAW 1. The criteria for service connection for the cause of the veteran's death are met. 38 U.S.C.A. §§ 1110, 1112, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2005). 2. Eligibility for dependent's educational assistance under Chapter 35, Title 38, United States Code, is established. 38 U.S.C.A. §§ 1310, 3501 (West 2002); 38 C.F.R. § 3.312 (2005) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In light of the Board's favorable disposition of the claim for service connection for the cause of the veteran's death and the claim for Chapter 35 benefits, the Board determines that all notification and development action needed to render a fair decision on the issues on appeal has been accomplished. II. Analysis A . Cause of Death The appellant contends that the veteran's fatal cancer of the pharynx was caused by his exposure to AO during his military service in Vietnam; therefore, service connection for the cause of the veteran's death is warranted. In general, service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty, or from aggravation of a pre- existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection requires findings of the existence of current disability and of a connection between the veteran's service and the disability. Watson v. Brown, 4 Vet. App. 309 (1993). To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred or aggravated in service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Pertinent legal authority provides that, if a veteran was exposed to a herbicide agent (to include Agent Orange) 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)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acne form diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). More recently, that regulation was amended to add Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) and chronic lymphocytic leukemia (CLL) to the list of diseases that are presumed to be associated with Agent Orange exposure. See 66 Fed. Reg. 21366 (May 8, 2001); 68 Fed. Reg. 59540 (October 16, 2003). Absent affirmative evidence to the contrary, there is now a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii)). Thus, a presumption of service connection arises for a Vietnam era veteran (presumed exposed to herbicides, including Agent Orange) who later develops one of the conditions listed above. Service connection for disability claimed as due to exposure to Agent Orange also may be established by showing that a disorder resulting in disability or death is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and 1116, and 38 C.F.R. § 3.303. Thus, the presumption is not the sole method for showing causation, and thereby establishing service connection. Initially, the Board notes that the death certificate indicates that the immediate cause of the veteran's death in May 1995 was cancer of the pharynx. No contributing conditions were noted and no autopsy was conducted. Treatment records include a diagnosis of squamous cell carcinoma of the hypopharynx with multiple lung nodules, metastatic disease to the lungs. At the time of the veteran's death, service connection was not in effect for any conditions and there was no claim for service connection pending before VA. According to the veteran's service personnel records, he had active service in the Republic of Vietnam during the Vietnam era. Service medical records reveal no findings or complaints with regard to cancer of the pharynx. The report of an April 1971 retirement examination noted an abnormal clinical evaluation of the mouth and throat; however, the abnormality noted was limited to enucleated tonsils. There were no pertinent defects or diagnoses noted. This matter turns on the question of whether there is a medical relationship between the veteran's cancer of the pharynx, which caused his death, and his exposure to Agent Orange in Vietnam. Three medical opinions address this point. However, cancer of the pharynx is not among the diseases presumed to be associated with Agent Orange exposure. Thus, notwithstanding the fact that he served in Vietnam during the Vietnam era and is presumed to have had Agent Orange exposure, service connection for the cause of the veteran's death, on a presumptive basis as due to Agent Orange exposure, is not warranted. As the record also reveals no evidence of complaints or diagnosis of, or treatment for, cancer of the pharynx during service or within the first post-service year, no other presumption applies. Private treatment records associated with the claims file include a November 1994 discharge summary noting a diagnosis of squamous cell carcinoma of the hypopharynx. A May 1995 Completion of Radiotherapy report noted a diagnosis of recurrent squamous cell carcinoma of the subglottic larynx regions. In a November 1999 statement, Leonard N. Glade, M.D., noted that the veteran had died of cancer of the pharynx. Dr. Glade referred to the July 1997 rating decision and the conclusion that "there is no connection for Agent Orange to cause cancer of the pharynx." Dr. Glade pointed out that the pharynx and larynx have similar and continuous epithelia and "[t]o assume that a causative agent for cancer on one area would not be causative in a similar and structurally related area is not logical. Given the evidence, Agent Orange is likely to have contributed to the development of cancer in [the veteran]." In a January 2003 VA opinion by Dr. William Merrill, a VA physician, he noted that Dr. Glade's suggestion that the epithelium of the hypopharynx and epithelium of the larynx are similar is biologically true, however, the relationship between Agent Orange and cancers of the respiratory tract is a legal definition and not a medical one. As to whether it is at least as likely as not that herbicide exposure contributed substantially or materially to cause the veteran's death, the VA physician noted that he reviewed medical literature collected from assessment of diseases acquired by Vietnam era veterans and compared their illnesses to those persons who did not serve in the Vietnam theater and the legal definition of diseases related to Agent Orange exposure. The physician indicated that a review of that information revealed no evidence of a medical association between exposure to herbicides and respiratory tract carcinomas and that the relationship between Agent Orange and cancer is "strictly a legal definition." The physician further noted that the applicable regulations specifically did not include cancers of the hypopharynx. The VA physician summarized his opinion as finding that there was no credible evidence in the veteran's record that would implicate his time in the military in the causation of his death from squamous cell carcinoma of the hypopharynx. However, in a contrary opinion, Craig N. Bush, M.D., opined that the veteran's cancer of the pharynx was likely caused by his Agent Orange exposure and that his opinion was consistent with the opinion of Dr. Glade. The Board notes that this opinion is supported by clinical findings, by the lack of other contributory conditions underlying the veteran's cancer, by Dr. Bash's medical expertise and scholarship in neuron-radiology (as provided in his eight page Curriculum Vitae), and his experience treating other patient's with disorders of the pharynx area. In essence, the Board finds that this opinion, along with Dr. Glade's November 1999 opinion, is the more probative on the question of medical nexus. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the responsibility of the BVA to assess the credibility and weight to be given the evidence") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The Board finds that Dr. Bash provided a very thorough rationale in support of his opinion that based on the medical record it was likely that the veteran's cancer originated somewhere in the oral/hypophayngeal/laryngeal(airway) regions and therefore the veteran's cancer was likely cause by his exposure to Agent Orange due to its Radiologically determined anatomic relationship to the larynx(airway) and pharynx. Dr. Bash discussed the Institute of Medicines (IOM's) literature, noting that the January 2003 VA examiner had not closely reviewed the IOM's extensive research on Veterans and Agent Orange. In Dr. Bash's opinion letter, he referenced several studies on Veterans and Agent Orange where the meta-analysis in 13 studies provided values that satisfied the 'as likely as not' requirement for causation, including a relatively large study of cases involving pharynx cancer. In addition, Dr. Bash pointed out that in this case, the exact location of the origin of the veteran's tumor was not well known such that it was more likely that the veteran's cancer was related to his exposure to Agent Orange. The Board points out that the additional evidence of record that supports Dr. Bash's opinion is a November 1994 discharge summary that diagnosed squamous cell carcinoma of the hypopharynx, a May 1995 radiotherapy discharge report reflects a diagnosis of recurrent squamous cell carcinoma of the subglottic larynx regions with radiotherapy treatment focused on the site of the larynx and subglottic regions and the veteran's death certificate showing that the veteran died from cancer of the pharynx. Collectively, the veteran's various diagnoses of cancer of the pharynx, hypopharynx and subglottic larynx regions, medical records and medical opinions support both Dr. Glade's and Dr. Bash's opinion that the veteran's cancer originated somewhere in the region of the larynx and pharynx and was thus, likely caused by the veteran's exposure to Agent Orange in service. The Board notes that the VA physician opined that since the relationship between Agent Orange and cancer was strictly a legal definition, and not a medical one, that there was essentially no relationship between the veteran's service and death from cancer of the hypopharynx. The Board finds that the VA physician's opinion simply provides support against a legal presumption of service connection. Rather, here, the Board finds that an allowance is legally warranted based upon medical evidence showing that a disorder resulting in disability or death is, in fact, causally linked to Agent Orange exposure. See Brock, 10 Vet. App. at 162-64; Combee, 34 F.3d at 1044. In essence, the evidence reflects that the veteran died of cancer of the pharynx, that he is presumed to have had in-service Agent Orange exposure, and that the weight of the competent evidence supports a finding of a medical relationship between in-service Agent Orange exposure and the cancer of the pharynx that caused the veteran's death. In view of the foregoing, the Board concludes that the criteria for service connection for the cause of the veteran's death are met. B. Chapter 35 Benefits Dependents' educational assistance benefits under Chapter 35, Title 38, United States Code, may be paid to a child or surviving spouse of a veteran who meets certain basic eligibility requirements. Basic eligibility exists if the veteran: (1) was discharged from service under conditions other than dishonorable or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability; or (if a serviceperson) (5) is on active duty as a member of the Armed Forces and now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power. 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. § 3.807. As noted above, service connection has been established for the cause of the veteran's death. Under these circumstances, the appellant meets the basic eligibility requirements for entitlement to Chapter 35 Dependents' Educational Assistance; hence, her claim for such benefits should be granted. ORDER Service connection for the cause of the veteran's death is granted. Dependent's educational assistance under Chapter 35, Title 38, United States Code, is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs