Citation Nr: 1114124	
Decision Date: 04/11/11    Archive Date: 04/21/11

DOCKET NO.  09-27 268	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. J. In, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1968 to August 1971.  This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO).


FINDINGS OF FACT

1.  The Veteran died in October 2007 at the age of 56.  The certificate of death reported the immediate cause of death as metastatic squamous cell carcinoma.  

2.  The medical evidence of record shows that the type of the Veteran's cancer was at least as likely as not squamous cell carcinoma of the lung.


CONCLUSION OF LAW

A disability incurred in or aggravated by active military service contributed substantially or materially to cause the Veteran's death.  38 U.S.C.A. § 1310, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.5, 3.312 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010).  Service connection for certain chronic diseases, including cancer, will be presumed if they are manifest to a compensable degree within the year after active service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

Generally, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability.  38 U.S.C.A. § 131; 38 C.F.R. §§ 3.5, 3.312.  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 C.F.R. § 3.312.

In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death.  In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death.  It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death.  38 C.F.R. § 3.312(b), (c).

The Veteran died in October 2007 at the age of 56.  The certificate of death reported the immediate cause of death was metastatic squamous cell carcinoma.  No underlying cause of death or other conditions were identified as significant in contributing to the Veteran's death.  An autopsy was not performed.

At the time of the Veteran's death, service connection was in effect for spondylolysis with degenerative disc and joint disease.

A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307.  The following diseases are deemed associated with herbicide agent exposure, under VA law: chloracne or other acneform 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), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma and diabetes mellitus (Type 2).  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309.

The most recent issuance by the Secretary has added hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of presumptive disabilities in the regulation.  See Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010).  

The appellant claims that the Veteran developed a lung cancer as a result of military service, specifically due to exposure to Agent Orange.  The Veteran's DD-214 indicates that the Veteran served in Republic of Vietnam from August 1970 to August 1971.  Under 38 U.S.C.A. § 1116(f), he is therefore presumed to have been exposed to herbicide agents, to include Agent Orange.  Consequently, the appellant must show that the Veteran died of a disability that would warrant service connection on a presumptive basis based on Agent Orange exposure.  Because the immediate cause of the Veteran's death in this case was due to metastatic squamous cell carcinoma, the central question is whether the primary site of the Veteran's metastatic squamous cell carcinoma was the lung.

The Veteran's service treatment records are negative for cancer of any kind or any respiratory disorder.

VA treatment reports, dated in January 2007, reflect that following the Veteran complaint of left neck mass with sudden onset in the supraclavicular region, core biopsy showed poorly differentiated squamous cell carcinoma and flow cytometry was not consistent with a lymphoma.  The treating physician noted that the Veteran had an unknown primary and remained asymptomatic aside from minimal dysphasia and tenderness.  There was no evidence of respiratory compromise.  The physician stated that with a history of Barrett's esophagus, an esophageal primary had to be considered and this malignancy could certainly give rise to paratracheal/small cell variant/celiac lymphadenopathy although one would expect adenocarcinoma histology.  The physician also stated that a non-small cell lung cancer was a consideration with the Veteran's extensive smoking history.  It was noted that no lung lesions were shown on computed tomography, however, the Veteran's primary lesion could be masked by small cell variant lymphadenopathy, if very superior in the left upper lung, or right paratracheal, if in the superior hilar region.  It was also noted that flow cytometry on the small cell variant core biopsy was not indicative of a lymphoma but that did not exclude that possibility of two separate primaries.

A March 2007 VA treatment report stated that the Veteran's staging studies revealed thoracic and abdominal adenopathy more consistent with lymphoma but these nodes could not be biopsied.  The treating physician noted that no primary could be identified for the Veteran's neck mass and that he was currently receiving chemotherapy for carcinoma of unknown primary.

An April 2007 VA treatment report noted that recent positron emission tomography scan showed extensive lymphadenopathy in the right supraclavicular, periotracheal, paraaortic pattern consistent with lymphoma.  However, the treating physician stated that lymphoma was in the differential diagnosis at the initial presentation, and his current neck cancer was squamous cell carcinoma of unknown primary, for which the Veteran was being treated.  The physician also stated that regarding the Veteran's systemic lymphadenopathy, etiology was unknown at that time.

In a September 2007 VA treatment report, the Veteran complained of abdominal pain.  The impression was an inhomogeneous, mostly hyperdense lesion seen in the left mid and lower anterior abdomen adjacent to the jejunum at the level of the left lower kidney."  Malignancy was strongly considered.  As to the abdominal pain and mass, it was noted that the Hematology/Oncology felt malignancy now behaved as disseminated squamous cell carcinoma of the lung with occult primary, and that the mass most likely represented a metastasis.

In a September 2007 VA treatment report, a VA oncologist, Dr. S.H., stated that the Veteran was status post chemotherapy.  The impression was "metastatic cancer of unknown primary (?lung)."

In a September 2007 letter, Dr. H. stated that the Veteran had metastatic cancer of unknown primary with known tumor that had spread to his neck, thorax, and abdomen.  Dr. H. further stated "[t]he exact type of cancer [the Veteran] have could not be precisely identified but the source is likely lung (lung cancer)."

Although the medical evidence of record does not confirm that the primary site of the Veteran's metastatic squamous cell carcinoma was the lung, the Board finds the evidence to be in relative equipoise in showing that the Veteran had a lung cancer.  Since the initial diagnosis of the Veteran's squamous cell carcinoma in January 2007, lung cancer was suspected as the primary cancer.  

Although the January 2007 VA physician stated that with a history of Barrett's esophagus, an esophageal primary was considered, one would expect adenocarcinoma histology in such case.  The physician then stated that a non-small cell lung cancer was also a consideration with the Veteran's extensive smoking history.  The physician explained that the Veteran's primary lesion could be masked by small cell variant lymphadenopathy, if very superior in the left upper lung, or right paratracheal, if in the superior hilar region.  Furthermore, with regard to the Veteran's abdominal mass and pain shown in September 2007, it was noted that the Hematology/Oncology felt malignancy then behaved as disseminated squamous cell carcinoma of the lung with occult primary.  Finally, the VA oncologist who provided ongoing treatments for the Veteran's cancer opined that while the exact type of the Veteran's cancer could not be precisely identified, the source was likely the lung.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  As such, any reasonable doubt regarding the etiology of the Veteran's cause of death is resolved in favor of the appellant.  See 38 C.F.R. § 5107(b).

In conclusion, given the competent medical evidence of record, the Board finds the evidence to be at least in relative equipoise in showing that the Veteran had a lung cancer.  Accordingly, as the Veteran is presumed to have been exposed to Agent Orange, and service connection for fatal lung cancer as presumptively due to inservice herbicide exposure is warranted.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e).  As such, service connection for the cause of the Veteran's death is warranted.


ORDER

Service connection for the cause of the Veteran's death is granted.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs