Citation Nr: 0735861	
Decision Date: 11/14/07    Archive Date: 11/26/07

DOCKET NO.  00-21 441	)	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, to include as due to Agent Orange exposure.


REPRESENTATION

Appellant represented by:	Peter J. Meadows, Attorney at 
Law


ATTORNEY FOR THE BOARD

Robert E. P. Jones, Counsel




INTRODUCTION

The veteran served on active duty from August 1952 to August 
1972, to include service in Vietnam from January 1970 to 
January 1971.  He died in November 1999.  The appellant is 
the veteran's widow.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a December 1999 decision by the 
Department of Veterans' Affairs (VA) Regional Office (RO) in 
New Orleans, Louisiana.

In June 2001 and August 2003, the Board remanded the 
appellant's claim for further development.  In March 2005, 
the Board issued a decision denying the appellant's claim.  
The appellant appealed the March 2005 decision.  In August 
2006, the United States Court of Appeals for Veterans Claims 
(Court) issued an order which granted a joint motion of the 
parties for remand and vacated the Board's March 2005 
decision.

In January 2007, the appellant's representative submitted 
additional medical evidence along with a waiver of RO review 
of the newly submitted evidence.

In June 2007, the Board obtained a medical opinion from the 
Veterans Health Administration (VHA).  See 38 C.F.R. § 
20.901(a) (2007).  The appellant and her representative were 
provided copies of the opinion for their review and were 
informed that they had 60 days in which to submit any 
additional evidence or argument.  The appellant and her 
representative have not submitted any response.


FINDINGS OF FACT

1.  The veteran served in Vietnam from January 1970 to 
January 1971.

2.  The veteran likely died as the result of a respiratory 
cancer that developed within 30 years after the last date of 
his exposure to an herbicide agent during his active military 
service.


CONCLUSION OF LAW

The criteria for service connection for the cause of the 
veteran's death have been met.  38 U.S.C.A. §§ 1116 (West 
1999 and 2002), 1310 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 
3.312 (1999 and 2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran died in November 1999 and the appellant filed her 
claim for service connection for the cause of the veteran's 
death that same month.  She contends that the veteran died as 
a result of adenocarcinoma of the lung that was caused by his 
exposure to Agent Orange during his period of service in the 
Republic of Vietnam.

At the time the appellant filed her claim, the law provided 
that a veteran who, during active military, naval, or air 
service, served in the Republic of Vietnam during the Vietnam 
era, and who has one of the herbicide-related diseases listed 
in the law, is presumed to have been exposed during such 
service to certain herbicide agents (e.g., Agent Orange), 
unless there is affirmative evidence to establish that the 
veteran was not exposed to any such agent during that 
service. If a veteran was exposed to an herbicide agent 
during active military service, several diseases will be 
rebuttably presumed to have been incurred in service if 
manifest to a compensable degree within specified periods, 
even if there is no record of such disease during service. 
These diseases include, in pertinent part, respiratory 
cancers (cancer of the lung, bronchus, larynx, or trachea). 
The presumptive period for respiratory cancers is within 30 
years, after the last date on which the veteran was exposed 
to an herbicide agent during active military, naval, or air 
service. 38 U.S.C.A. § 1116 (West 1999); 38 C.F.R. §§ 
3.307(a)(6), 3.309(e) (1999); McCartt v. West, 12 Vet. App. 
164 (1999). 

On December 27, 2001, the Veterans Education and Benefits 
Expansion Act of 2001 was enacted. See Pub. L. No. 107- 103, 
115 Stat. 976 (2001). This law made substantive changes to 38 
U.S.C.A. § 1116 pertaining to presumption of service 
connection for diseases associated with exposure to certain 
herbicide agents. Effective January 1, 2002, a veteran who, 
during active military service, served in Vietnam during the 
period beginning in January 1962 and ending in May 1975, is 
presumed to have been exposed to herbicides. Also, the 
legislation removed the 30-year limitation on presumptive 
service connection for respiratory cancers due to herbicide 
exposure. See 38 U.S.C.A. § 1116(a)(2)(F); 38 C.F.R. § 
3.307(a)(6)(ii). Because of the Board's favorable decision 
herein, there is no prejudice to the veteran in the Board's 
consideration of the amended statute. Cf. Bernard v. Brown, 
4 Vet. App. 384, 394 (1993) (when the Board addresses in its 
decision a question that had not been addressed by the RO, it 
must consider whether the claimant has been given adequate 
notice of the need to submit evidence or argument on that 
question and an opportunity to submit such evidence and 
argument and to address that question at a hearing, and, if 
not, whether the claimant has been prejudiced thereby).

Records from the National Personnel Records Center indicate 
that the veteran served in Vietnam from January 1970 to 
January 1971.  His in-service medical examination reports and 
service medical records are negative for any adenocarcinoma, 
to include the lungs.  The appellant's claim, however, is 
based on the presumption that his fatal cancer was due to 
exposure to herbicide during his service in the Republic of 
Vietnam.  

In this case, under current law the veteran is presumed to 
have been exposed to Agent Orange due to his Vietnam service.  
As discussed below, the Board finds that the greater weight 
of the medical evidence indicates that it is at least as 
likely as not that the veteran died of adenocarcinoma of the 
lung, a disease for which presumptive service connection is 
provided for those exposed to Agent Orange.  Thus, he is also 
presumed to have been exposed to herbicide under the law in 
effect at the time the claim was filed.  

The evidence that supports the conclusion that the veteran 
died of a respiratory cancer (cancer of the lungs, bronchus, 
larynx, or trachea) includes the death certificate, which 
indicates that the veteran died of disseminated 
carcinomatosis, due to adenocarcinoma of the lung.  In 
addition, a January 2007 medical opinion from C. Bash, M.D., 
indicates that the veteran's primary source of his 
adenocarcinoma was most likely his lung.  Also, a June 2007 
VHA opinion also concludes that lung cancer is at least as 
likely as not the primary source of the veteran's 
adenocarcinoma.

The evidence against a conclusion that the veteran died of a 
respiratory cancer includes November 2001 and June 2004 VA 
medical opinions.  

In this case the Board finds that the January 2007 and June 
2007 favorable medical opinions carry more weight than the 
November 2001 and June 2004 medical opinions.  The November 
2001 and June 2004 opinions do not indicate a review of the 
medical literature and do not provide adequate reasons and 
bases for the negative opinions.  The November 2001 opinion 
was that, in the absence of medical data, the information 
indicates that it was not as likely as not that the primary 
site of the veteran's adenocarcinoma was a lung.  The June 
2004 VA medical opinion by a VA staff physician was based on 
a review of the veteran's claims file and listed all the 
areas in the veteran's body that had been affected by 
adenocarcinoma, including his lung.  She stated that any of 
those areas could have been the cause of the veteran's 
adenocarcinoma, and that it was her opinion that it was not 
as likely as not that the primary source of the veteran's 
adenocarcinoma was the lung.

In contrast the January and June 2007 medical opinions 
reflect a thorough review of the record and the medical 
literature, and provide extensive reasons and bases for the 
favorable opinions.  Dr. Bash stated that in his January 2007 
opinion that he had examined the veteran's service medical 
records, post service medical records, imaging reports, and 
other medical opinions, and that he had reviewed the medical 
literature.  He noted that metastatic workup had been 
negative for other primary sources of adenocarcinoma.  He 
then noted that a CT scan of the lung demonstrated areas 
consistent with a primary tumor, namely basilar parenchymal 
and nodular changes.  Dr. Bash stated that he had considered 
the November 2001 and June 2004 VA medical opinions and 
disagreed with them.  He noted that the November 2001 
examiner did not discuss the positive lung CT findings or 
provide a more likely primary source.  He also noted that 
neither VA examiner provided any rationale or literature 
sources to support their opinions that the primary site was 
not the lung.  

The June 2007 VHA opinion notes that the veteran's claims 
files had been reviewed and a review of published literature 
on adenocarcinoma of unknown primary had been accomplished.  
It was also noted that the case had been discussed with a VA 
oncologist.  It was concluded that, while there was no clear 
primary source of the metastatic adenocarcinoma, given the 
veteran's combined cigarette smoking and presumed dioxin 
exposure, given the epidemiologic data on cancer and cancer 
death, and given the presence of lung findings and the 
pattern of spread, it was at least as likely as not that 
adenocarcinoma of the lung was the primary source of the 
veteran's cancer.

As the most probative medical opinions indicate that the 
veteran's adenocarcinoma of the lung was at least as likely 
as not the primary source of the veteran's terminal 
adenocarcinoma, the Board finds that the veteran's death was 
caused by adenocarcinoma of the lung.  

Because the veteran served in Vietnam from January 1970 to 
January 1971 and it is at least as likely as not that his 
death is the result of adenocarcinoma of the lung, which is a 
respiratory cancer that developed within 30 years after the 
last date of his exposure to an herbicide agent during his 
active military service, the criteria for service connection 
for the cause of the veteran's death based on the 
presumptions in either the current or the former 38 U.S.C.A. 
§ 1116 and 38 C.F.R. §§ 3.307 and 3.309 are met.  See also 
current and former 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

Dependency and indemnity compensation may be awarded to a 
veteran's surviving spouse for death resulting from a 
service-connected disability.  38 U.S.C.A. § 1310; 38 C.F.R. 
§ 3.312.  As the cause of the veteran's death is presumed to 
be due to his active military service, service connection for 
the cause of the veteran's death is warranted. 

VA's duties to notify and assist claimants in substantiating 
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  Due 
to the favorable outcome of the appellant's claim, a 
discussion of the duties to notify and assist is unnecessary.


ORDER

Entitlement to service connection for the cause of the 
veteran's death is granted.



____________________________________________
MARY GALLAGHER 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs