Citation Nr: 1034280 Decision Date: 09/13/10 Archive Date: 09/21/10 DOCKET NO. 08-38 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependents' Educational Assistance (DEA) under the provisions of United States Code, Title 38, Chapter 35. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from May 1967 to April 1969. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The Veteran's Certificate of Death lists the immediate cause of death as carcinomatosis due to (or as a consequence of) carcinoma of tonsil with adenocarcinoma prostate/bone metastasis as other significant conditions contributing to death, but not resulting in the underlying cause. 2. At the time of his death, the Veteran was not service- connected for any disability. 3. The Veteran served in the Republic of Vietnam during the Vietnam era; exposure to herbicides is presumed. 4. Squamous cell carcinoma of the tonsil was not manifest until more than 30 years following the Veteran's separation from service; however, the most persuasive medical opinion of record weighs in favor of a finding that the Veteran's death from carcinomatosis was the result of in-service exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1310, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309, 3.312 (2009). 2. The criteria for entitlement to basic eligibility for DEA are met. 38 U.S.C.A. §§ 3500, 3501, 3512 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.807, 21.3021 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Claim The appellant contends that the Veteran's cancer of the tongue and tonsil was the result of exposure to Agent Orange. She also contends that the Veteran had prostate cancer that was a contributing factor to his death. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2009). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. Id. For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b) (2009). 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)(1) (2009). 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 2002). Issues involved in a claim for Dependency and Indemnity Compensation [DIC] are decided without regard to any prior disposition of those issues during the Veteran's lifetime. 38 C.F.R. § 20.1106 (2009). Service connection may be established for a current disability in several ways including on a direct basis. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2009). 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) (2009). 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 2002); 38 C.F.R. § 3.303(d) (2009); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even though there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) (2009) are met. The list of diseases that are presumed to be service-connected based on herbicide exposure in Vietnam are included in 38 C.F.R. § 3.309(e). The Board notes that effective August 31, 2010, VA has amended 38 C.F.R. § 3.309(e) to include additional diseases that are presumed to be service-connected based on herbicide exposure. The Veteran's cancers are not included in those additional diseases. See Diseases Associated with Exposure to Certain Herbicide Agents (Hairy Cell Leukemia and other Chronic B-Cell Leukemias, Parkinson's Disease and Ischemic Heart Disease), 75 Fed. Reg. at 53,202 (August 31, 2010) (to be codified at 38 C.F.R. § 3.309(e). The Board notes 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 any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32,395 (June 12, 2007). This presumption is expressly noted not to apply to oral, nasal, and pharyngeal cancers based upon a finding that the evidence as to an association between these cancers and exposure to herbicides was inadequate or insufficient. The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.309(e) (2009). A Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to the contrary. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2009); 38 C.F.R. § 3.307(a)(6)(iii); Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). VA has adopted the position that service in Vietnam requires having physically set foot in Vietnam. The United State Court of Appeals for the Federal Circuit has clearly held that VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of duty in order to be entitled to a presumption of herbicide exposure and service connection for diseases associated with that exposure constitutes a permissible interpretation of 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii). Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). The United States Court of Appeals for Veterans Claims (hereinafter "the Court"), however, has held that even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("The existence of presumptive service connection for a condition based on exposure to Agent Orange presupposes that it is possible for medical evidence to prove such a link before the National Academy of Sciences recognizes a positive association."). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that it cannot make its own independent medical determinations, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Thus, the resolution of this claim is dependent upon the medical opinions of record. In this case, a report from the National Personnel Records Center (NPRC) confirms that the Veteran was stationed in the Republic of Vietnam from 1968 to 1969; accordingly, exposure to herbicides is conceded. Post-service treatment records indicate that the Veteran had been diagnosed with probable head and neck cancer with his history of smoking and cervical adenopathy in December 2004. Biopsies in January 2005 confirmed a diagnosis of squamous cell carcinoma of the base of the tongue/left tonsil. The Veteran's VA treatment records dated through September 2006 showed his smoking and alcohol abuse history. The Veteran was afforded a VA examination in May 2005. The Veteran reported a smoking history since the age of 21 of a pack per day and was currently down to about four per day. The examiner noted that the Veteran was exposed to Agent Orange, but opined that the Veteran's cancer was most likely not due to Agent Orange, but was more due to the combination of his smoking and alcohol consumption. No rationale for the opinion was provided, nor is there any indication that the Veteran's treatment records were reviewed. The examiner was not an oncologist, but was a chief of oral and maxillofacial surgery. A record dated in September 2006 shows that the Veteran was diagnosed with metastatic squamous cell carcinoma. The Veteran died in November 2006. The cause of death shown on the Certificate of Death was carcinomatosis due to (or as a consequence of) carcinoma of tonsil. An amended Certificate of Death in February 2008 added adenocarcinoma prostate/bone metastasis as other significant conditions contributing to death, but not resulting in the underlying cause. At the time of his death, service connection was not in effect for any disabilities. A letter from the Veteran's VA staff oncologist, B.P., M.D., received in March 2007 indicates that the Veteran was diagnosed with squamous cell tonsillar cancer that metastasized to his bones. He opined that tonsillar cancer was a cancer of the upper aero-digestive tract. He further opined that there was a known relationship between malignancies of the upper aero-digestive tract and Agent Orange exposure. Dr. B.P. explained that the aero-digestive tract referred to organs that make up the tissues and organs of the upper respiratory tract and upper part of the digestive tract. The aero-digestive tract was subjected to disease and disease symptoms that affected the system as a whole, not just an individual part. Thus, carcinogens that affected the larynx, trachea, bronchus, and lungs also affected the oral cavity and the oral pharynx. As the tonsil was located in the oral pharynx, it would clearly indicate that there was a connection between Agent Orange exposure and the Veteran's tonsillar cancer. A follow-up letter from Dr. D.B. received in April 2007 indicates that the aero-digestive tract included the tongue, among other tissues and organs. A letter from another VA physician, C.H., M.D., received in April 2007 indicates that the Veteran's bone cancer was likely metastasis from his lungs. A letter from M.H., M.D. received in November 2008 shows that it was his opinion that more likely than not, the Veteran's squamous cell carcinoma of the tongue was responsible for the Veteran's death. He further opined that it was also more likely than not that if laryngeal carcinoma and cancer of the trachea were presumptively related to Agent Orange exposure, then carcinoma of the tongue was also related to Agent Orange exposure. Dr. M.H. noted the Veteran's history of tobacco abuse for over 30 years and alcohol abuse without quantitation. No rationale for the opinions were provided. A VA medical opinion was obtained in April 2009. The Veteran's claims file was reviewed. The examiner opined that the primary cite of the Veteran's cancer was carcinoma of base of tongue with extension to tonsil. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his of her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-449 (2000). The Court has expressly declined to adopt a 'treating physician rule' which would afford greater weight to the opinion of a veteran's treating physician over the opinion of a VA or other physician. See Guerrieri, at 471-72. Having reviewed the evidence opinions, the Board concludes that the preponderance of the probative evidence shows that the Veteran's cancer was caused by his in-service exposure to Agent Orange. This etiology for the Veteran's cancer was shared by VA and private physicians, including Dr. B.P., a VA oncologist. As discussed above, Dr. B.P opined in support of the appellant's claim that as the tonsil was located in the oral pharynx, it would clearly indicate that there was a connection between Agent Orange exposure and the Veteran's tonsillar cancer. He provided a well-reasoned and thorough rationale for his conclusion. Moreover, even though the Veteran's VA records, including those signed by Dr. B.P., documented the Veteran's smoking and alcohol history it was found that the Veteran's cancer was the result of Agent Orange exposure and not due to alcohol or tobacco use. There is no indication that the opinion was provided based upon inaccurate factual or scientific findings. Compared to Dr. B.P.'s opinion, the December 2004 private treatment record appears to indicate that the Veteran's cancer was related to his history of smoking; however, no rationale for that etiology was provided, nor does it take into consideration the Veteran's exposure to Agent Orange. Additionally, the May 2005 examiner opined that the Veteran's cancer was most likely not due to Agent Orange, but was more due to the combination of his smoking and alcohol consumption. No rationale for that opinion was provided, however, and that examiner was not an oncologist. Additionally, as noted above, Dr. B.P. still rendered a positive nexus opinion to Agent Orange exposure although he was aware of the Veteran's history of tobacco and alcohol use. As discussed, the Board cannot make its own independent medical determinations, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. See Rucker, 10 Vet. App. 67. Here, the Board finds the positive nexus opinion from Dr. B.P. was based upon a thorough rationale, was provided by a medical specialist in the pertinent field of oncology, and adequately considered the Veteran's relevant medical history. The Board thus finds Dr. B.P. was highly qualified to opine as to the etiology of the Veteran's squamous cell tonsillar cancer. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, the Board finds that probative evidence of record indicates an etiological relationship between the Veteran's in- service exposure to Agent Orange and his squamous cell tonsillar cancer. Therefore, resolving reasonable doubt in favor of the appellant, the Board finds that a grant of service connection for the cause of the Veteran's death is warranted. III. DEA DEA allowance may be paid to a surviving spouse or child of a veteran who was discharged from service under conditions other than dishonorable and died of a service-connected disability. 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. §§ 3.807, 21.3021. The Veteran received an honorable discharge from active military service, and it has now been established that he died as a result of a service-connected disability. Accordingly, basic eligibility for DEA is established. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to DEA is granted. ____________________________________________ T. L. Douglas Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs