Citation Nr: 0730874 Decision Date: 10/01/07 Archive Date: 10/16/07 DOCKET NO. 05-22 512 ) 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. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, her father, daughter, and a physician/Congressman. ATTORNEY FOR THE BOARD S. B. Mays, Associate Counsel INTRODUCTION The veteran served on active duty from April 1966 to February 1968. The veteran died in August 2002. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision of the Milwaukee, Wisconsin Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefit sought on appeal. In April 2007, the appellant, her father, daughter, and a physician/Congressman testified before the undersigned Acting Veterans Law Judge sitting at the RO. A copy of the hearing transcript is of record and has been reviewed. During the hearing, the appellant submitted additional evidence, along with a waiver of initial RO consideration. FINDINGS OF FACT 1. The Certificate of Death reflects that the veteran died in August 2002 and lists the immediate cause of death as metastatic esophageal cancer. An amended death certificate shows that the immediate cause of death was "esophageal cancer caused by exposure to Agent Orange in Vietnam in 1966 and 1967." 2. During his lifetime, the veteran was service connected for: proctitis (30 percent); scars of the left shoulder and scapular region, post-operative cysts (noncompensable); and malaria (noncompensable). 3. The veteran served in the Republic of Vietnam. 4. The preponderance of the competent evidence relates the veteran's cause of death, esophageal cancer, to in-service Agent Orange exposure. CONCLUSION OF LAW Resolving any reasonable doubt in the appellant's favor, the veteran's death is directly related to in-service exposure to Agent Orange. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007) redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating this claim. This is so because the Board is taking action favorable by granting the appellant's service connection claim for the cause of the veteran's death. See Dingess/Hartman v. Nicholson, 9 Vet. App. 473 (2006); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183; Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2007) (harmless error). II. Factual Background Service medical records are negative for esophageal cancer. Service medical records reflect that the veteran was treated for abdominal cramps and diarrhea while in Vietnam in February 1968. He was admitted to a VA hospital from April 1968 to May 1968 due to bloody diarrhea. Diagnoses were acute nonspecific proctitis and malaria. VA examination report dated in July 1968 reflects the same diagnoses. Private treatment records beginning in 1973 show treatment for multiple colon polyps with a history of chronic ulcerative colitis. In December 2000, the veteran was diagnosed with esophageal cancer. The veteran died in August 2002. The immediate cause of death was metastatic esophageal cancer. An amended death certificate reflects that the immediate cause of death was esophageal cancer caused by exposure to Agent Orange in Vietnam in 1966 and 1967. In support of her claim, the appellant submitted buddy statements to the effect that the veteran's unit was exposed to Agent Orange while serving in Vietnam. The appellant also submitted an excerpt from a VA report regarding associations between adverse health effects and exposure to Agent Orange. The writer stated that "I am most comfortable in concluding that it is at least as likely as not that liver cancer, nasal/pharyngeal/esophageal cancers...are service connected." The veteran's private physician for more than twenty years, Donn D. Fuhrmann, M.D., provided numerous letters dated in January 2003, September 2003, January 2004, July 2004, and June 2006. Dr. Fuhrmann diagnosed the veteran with esophageal cancer in December 2000. In his opinion, to a reasonable degree of medical certainty, Dr. Fuhrmann opined that it is much more likely than not, that Agent Orange exposure was the root cause of the veteran's chronic gastrointestinal difficulties, which directly lead to his untimely demise due to metastatic cancer. Such physician further stated that it is highly likely, nearly a certainty that the veteran's adenocarcinoma which involved both the esophagus and stomach was due to the chronic inflammation of his gastrointestinal tract resulting from exposure to carcinogenic chemical agents during his service in Vietnam. Dr. Fuhrmann noted that esophageal cancer is not a common disease, and that the veteran was not in a high risk group for esophageal cancer due to his personal behavior or activities. While adenocarcinomas of the esophageal/gastric junction are known to be associated with reflux symptomatology, Dr. Fuhrmann explained that the veteran did not have a history of reflux symptoms, nor did he use tobacco product, alcohol, or agents recognized to significantly increase the risk of developing esophageal cancer. It was also noted that the veteran's occupation and leisure activities did not involve exposure to hazardous or carcinogenic materials. The appellant also submitted a January 2004 letter from another private physician, Karen M. Gremminger, M.D., who indicated that she treated the veteran for his esophageal cancer from December 2001 until his death. Dr. Gremminger noted that the veteran's esophageal cancer was atypical, as he had no history of alcohol or tobacco abuse, and no history of reflux symptomatology. Dr. Gremminger opined that the veteran's exposure to Agent Orange during service was the clear cause of his malignancies of the upper aero-digestive tract, and concluded that the veteran's unusual carcinoma is likely related to his in-service exposure. The appellant also submitted a copy of an April 2005 email from a Cornell University professor to a widow whose husband, also a veteran, died of esophageal cancer. The professor, an environmental toxicologist with forty-one years of experience, has researched whether esophageal cancer in Vietnam veterans is caused by Agent Orange exposure. The professor suggests that there is a link between esophageal cancer and Agent Orange exposure in Vietnam. In March 2005, the RO referred this case for a VA advisory opinion with respect to the issue of whether the veteran's esophageal cancer was related to his service- connected proctitis and related gastrointestinal tract problems. In the same month, the Chief Public Health and Environmental Hazards Officer indicated that the report released by the Institute of Medicine, National Academy of Sciences (NAS) with regard to the herbicide use in Vietnam reflected that there was limited/suggestive evidence of no association between exposure to herbicides and gastrointestinal cancers. At that time, the officer was unable to comment on the likelihood that the veteran's esophageal cancer was related to his proctitis and related gastrointestinal tract problems, and suggested referral to a gastroenterologist for an opinion. In May 2005, the RO referred this case to a VA gastroenterologist for an opinion. The VA physician noted that the veteran had been diagnosed with malaria while on active duty and then with ulcerative colitis, and more specifically proctitis. It was also noted that the veteran then underwent partial resection and was followed for colonic polyps. The gastroenterologist stated that there is no association amongst any of the veteran's in-service treatments and human esophageal carcinoma. In addition, the gastroenterologist stated that his research on proctitis did not reveal that there is a proven genetic predisposition amongst the above-mentioned conditions. It was observed that the veteran did not have a long-standing diagnosis of reflux, and that approximately 50 percent of patients with reflux are asymptomatic. Thus, the gastroenterologist stated that it is possible that the asymptomatic patients are predisposing themselves to esophageal adenocarinoma without their knowledge. Ultimately, the VA May 2005 VA gastroenterologist concluded that, after a review of the claims folder and thorough research on the subject, the veteran's esophageal cancer was not related to his military service, a service- connected disability, or any treatment incurred therein. During the appellant's personal hearing in April 2007, Steven L. Kagen, a physician, Board-certified in internal medicine, allergies, and diagnostic laboratory immunology testified. Dr. Kagen is also a U.S. Congressman. Dr. Kagen indicated that he had an opportunity to review the claims folder, and concluded that, in his opinion as a medical doctor, there is doubt that the veteran's esophageal cancer was related to Agent Orange exposure. III. Legal Criteria Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Where a malignant tumor becomes manifest to a degree of 10 percent within one year from date of separation from active service, it shall be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). To prevail on the issue of entitlement to service connection for the cause of the veteran's death, the evidence must show that a disability incurred or aggravated by service caused or contributed substantially or materially to cause the veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The 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 is inherently one not related to the principal cause. In determining whether a 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). If a veteran was exposed to an "herbicide agent" during active military, naval, or air service, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) is presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a) (West 2002); 38 C.F.R. § 3.309(e) (2007). In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i) (2006). Under 38 C.F.R. § 3.307(a)(6), 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, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. Id. § 3.307(a)(6)(iii). Under current regulation, "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. Id. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). IV. Analysis In this case, the veteran died in August 2002 as a result of metastatic esophageal cancer. At the time of his death, the veteran was service-connected for proctitis (30 percent); scars of the left shoulder and scapular region, post- operative cysts (noncompensable); and malaria (noncompensable). The appellant contends that the veteran's fatal esophageal cancer is related to in-service exposure to Agent Orange. The veteran's service medical records confirm that he had Vietnam service, thus, he is afforded the presumption of Agent Orange exposure while serving in Vietnam. However, the Board notes that the veteran's esophageal cancer is not recognized by the Secretary as warranting a presumption of service connection. 38 C.F.R. § 3.309(e). In this regard, 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 disabilities not listed in 38 C.F.R. § 3.309(e). The National Academy of Sciences, after reviewing pertinent studies, did not feel that the evidence warranted altering its prior determination that there was inadequate or insufficient evidence of an association between exposure to herbicide agents and the subsequent development of any other disabilities. See Notice, 67 Fed. Reg. 42600 (2002). Notwithstanding, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). On a direct basis, the appellant has submitted opinions from three physicians (Dr. Furhmann, Dr. Gremminger, and Dr. Kagen) linking the veteran's esophageal cancer to Agent Orange exposure in service. To the contrary, a May 2005 VA gastroenterologist opined that there is no relationship between the veteran's esophageal cancer and any incident in service, to include Agent Orange exposure. On review, the Board finds that resolving any doubt in the appellant's favor, the competent evidence is favorable to her claim. In this regard, the Board finds that the collective objective opinions and testimony provided by Dr. Furhmann, the veteran's physician for more than twenty years; Dr. Gremminger, the private physician who treated the veteran's esophageal cancer; and Dr. Kagen, the physician who presented testimony, relating the veteran's fatal esophageal cancer to in-service Agent Orange exposure outweigh the unfavorable opinion provided by the May 2005 VA gastroenterologist. Thus, the Board concludes that service connection for the cause of the veteran's death is warranted on a direct basis. See 38 C.F.R. § 3.303 (2007). ORDER Service connection for the cause of the veteran's death is granted. __________________________________________ J. A. MARKEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs