Citation Nr: 1214720 Decision Date: 04/24/12 Archive Date: 05/03/12 DOCKET NO. 08-17 194 ) 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: The American Legion ATTORNEY FOR THE BOARD N. L. Rippel INTRODUCTION The Veteran had active service in the Marines from December 1964 to December 1968. The Veteran died in January 2008. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In that rating decision, the RO also denied claims for accrued benefits under 38 U.S.C.A. § 5121 and Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318, but the appellant did not appeal these issues. FINDINGS OF FACT 1. The Veteran died in January 2008 due to metastatic esophageal cancer. 2. At the time of the Veteran's death, service-connection was not in effect for any disability. 3. The Veteran's esophageal cancer developed many years after his separation from active service and was not etiologically related to the Veteran's active service. CONCLUSION OF LAW A disability incurred in or aggravated by active service did not cause or substantially and materially contribute to the Veteran's cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the effective-date element of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that when VA receives a detailed claim for DIC under 38 U.S.C. § 1310, it must provide a detailed notice to the claimant. Specifically, the Court held that, under section 38 U.S.C. § 5103(a), the notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. The record reflects that in the Rating Decision denying the claims for cause of death, accrued benefits and DIC under 38 U.S.C.A. § 1318, and the Statement of the Case, the RO informed the appellant that service connection was in effect for no disability at the time of the Veteran's death. It was noted that the Veteran had an appeal for service connection pending at the time of his death. In a February 2008 letter, the RO informed the appellant of the evidence needed to substantiate her claim that the Veteran's fatal cancer was due to herbicide exposure in service, and informed her of the evidence that she should submit and that the RO would obtain on her behalf. Although the appellant was not provided sufficient notice until after the initial adjudication of the claim and was not provided notice with respect to the effective-date element of the claim, the Board finds that there is no prejudice to her in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that as the claim is being denied, there is no harm resulting from the failure to inform the appellant of the evidence necessary to establish an effective date. As explained below, the Board has determined that entitlement to service connection for the cause of the Veteran's death is not warranted. Consequently, no effective date will be assigned, so the failure to provide notice with respect to that element of the claim is no more than harmless error. The Board also finds the appellant has been afforded adequate assistance in response to her claim. The Veteran's service treatment records (STRs) are on file. The record also contains a private medical opinion addressing the relationship between the Veteran's cancer and herbicide exposure as well as a VA medical opinion with a concurring opinion. The private opinion was offered in support of the Veteran's claim for service connection for esophageal cancer which was being adjudicated prior to his death. The VA opinion was obtained in response to the private opinion. The Board finds that the VA opinion adequately addresses the relevant questions and is supported by adequate reasoning. Additional examination is not needed. Neither the appellant nor her representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. II. Legal Criteria Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5 (2011). Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 131; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise 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. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal or 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 inherently is one not related to the principal cause of death. In determining whether service-connected disability contributed to death, it must be shown that it contributed substantially or materially to 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 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). A service-connected disability is one which was incurred in or aggravated by active service; one which may be presumed to have been incurred or aggravated during such service; or one which was proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, may be presumed to have been incurred or aggravated in service if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, 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(a)(6)(iii). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes mellitus), Hodgkin's disease, Ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis The appellant asserts that the Veteran's esophageal cancer which caused his death was a result of in-service exposure to herbicide. According to the certificate of death, the Veteran died of esophageal cancer in January 2008. No other condition was certified as an immediate or contributory cause of death. At the time of the Veteran's death, service connection was not in effect for any disability. A review of the Veteran's STRs is negative for any treatment for or diagnosis of any cancer while he was in active service. STRs are also negative for any treatment for or diagnosis of an esophageal or stomach problem while the Veteran was in active service. At the time of his separation examination in December 1968, the Veteran's mouth and throat, his chest and lungs and abdomen and viscera were noted to be clinically normal upon examination. There is no indication from the examination report that the Veteran complained of any esophageal-related disability at that time. A review of the post-service medical evidence reveals that in February 1969 the Veteran had an episode of proteinuria, etiology undetermined, based on biopsy. The VA medical records show that the Veteran was diagnosed with esophageal adenocarcinoma in July 2006. He had presented with a complaint of recently developing dysphagia for solid foods. It is well documented in the claims file that the Veteran was a smoker for 40 years. Surgery in August 2006 to remove the tumor revealed it to be large and located at the GE junction with large mass of lympha nodes encasing the celiac axis. The diagnosis thereafter was unresectable esophageal cancer. An August 2006 letter from a physician with the Hematology and Oncology Department at the VA notes that the Veteran was diagnosed with metastatic (stage IV) esophageal cancer and that his prognosis was poor. With regard to presumptive service connection based on 38 C.F.R. §§ 3.307(a)(3), 3.309(a), this presumption is not for application because the post-service medical records fail to show that the Veteran's esophageal cancer was manifested within one year after his discharge from service. With regard to presumptive service connection based on herbicide exposure, the Veteran's SPRs show that he had service in Vietnam, such that exposure to herbicides to include Agent Orange is presumed. 38 C.F.R. §§ 3.307(a)(6), 3.313(a). However, the cause of the Veteran's death due to esophageal cancer is not on the list of diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Thus, the automatic presumption of service connection afforded for certain specific diseases associated with exposure to herbicides, specifically Agent Orange, is not for application for his cause of death. In fact, VA also has specifically determined that gastrointestinal tumors, including those of the esophagus and stomach, are not associated with exposure to herbicide agent for purposes of the presumption. See 72 Fed. Reg. 32,395 (June 12, 2007). That is, taking account of the available evidence and National Academy of Science's analysis, the Secretary has found that the credible evidence against an association between herbicide exposure and esophageal cancer outweighs the credible evidence for such an association, such that he has determined that a positive association does not exist. This determination was based on thorough and substantive medical research, and provides very strong evidence against presumptive service connection for the Veteran's cause of death due to esophageal cancer. Thus, the Board turns to service connection on a direct basis. In this respect, if the claimed disease is not one of the presumptive diseases listed in 38 C.F.R. § 3.309(e), but exposure to an herbicide is presumed or proven by the evidence, as is the case here, an appellant may establish service connection for the disease by (1) showing that the disease actually occurred in service, or (2) by submitting medical evidence of a nexus between the disease and exposure to herbicides during military service. Combee, 34 F.3d at 1043-1044. In fact, the Court has specifically held that the provisions set forth in Combee are applicable in cases involving Agent Orange exposure. Stefl v. Nicholson, 21 Vet. App. 120 (2007); McCartt v. West, 12 Vet. App. 164, 167, The record includes a report of independent medical exam dated in October 2007 from Craig N. Bash, M.D., Neuro-Radiology, submitted in conjunction with the Veteran's claim that he filed prior to his death. Dr. Bash indicates that he reviewed the Veteran's medical records for the purpose of rendering an opinion as to the etiology of the Veteran's metastatic esophageal cancer (stage IV) and renal failure diseases as they relate to his service time. He indicated that he reviewed the STRs, post service medical records and imaging reports, lay statements dated in April 2006, other medical opinions and medical literature. He asserted that his opinion is made to a high degree of medical certainty. He also asserts that he has special knowledge in the areas of metastatic esophageal cancer (stave IV) and renal failure diseases and he attached his C.V. in support of this assertion. Dr. Bash noted the facts as follows: Patient entered service fit for duty. Patient was in Vietnam and was exposed to Agent Orange. Patient has metastatic esophageal cancer (stage IV) as per note from his a VA doctor. Recent statement of the case by a non-physician states the Veteran's esophageal region adenocarcinoma is not linked to Agent Orange. Dr. Bash thereafter launched into a discussion in which he asserted that it is a well known principle that patients exposed to high levels of Agent Orange acquire multiple types of cancer as is well-documented in the Institute of Medicine (IOM) Viet Nam Veterans series of studies. He noted that Agent Orange is a powerful carcinogen and opined that the Veteran's cancer was likely caused by his in-service exposure to Agent Orange because the Veteran entered service fit for service, went to Vietnam, and developed his current cancer at a relatively young age. He listed studies concerning Agent Orange and cancer and he also included a Meta analysis of these studies which he claimed documented a relative risk in favor of cancer production by Agent Orange. He noted that 9 studies were in favor and 4 were not in favor of esophageal cancer and 40 studies were in favor of stomach cancer and 30 studies were not in favor. He further noted that as the cancer started in the GE junction, it could have either began in the stomach or the esophagus. Finally, he argued that the record does not contain a more likely etiology for his cancer. Dr. Bash then goes on to disagree with the findings of the decision review officer (DRO) that authored the statement of the case and notes that this individual is not a physician. He further points out that the DRO did not perform a review of medical literature nor comment on the 9 studies referenced in his report. He also notes that the DRO did not discuss the 95% confidence interval concept versus the VA rule concerning the as likely as not (AKA 50% confidence interval) and how that might affect the required nexus. Finally, he observes that the DRO did not provide an alternative explanation for the cause of the Veteran's cancer. The Board observes that the statement of the case does not represent a medical opinion. Rather, the DRO that drafted the adjudicatory document pursuant to 38 C.F.R. § 19.29 to provide the Veteran with a summary of relevant evidence in the case, a summary of the applicable laws and regulations pertaining to the issue on appeal, and notification for the determination of the RO in his appeals with the reason for such determination. Neither the RO nor DRO has asserted that the statement of the case is a medical opinion. Likewise, the Board does not consider it as such. Dr. Bash goes on to take issue with the IOM report which states there is insufficient data to show an association between Agent Orange and esophageal cancer but notes that the IOM uses the 95% confidence interval for their analysis. He observes that the correct confidence interval according to VA guidelines is the 50% level (as likely as not) and they did not do a meta analysis of the literature to look for more likely than not trends. As such, he explained that he discounted the IOM statements based on what he terms incorrect analytic assumptions without meta literature reviews. He concludes by saying that the Veteran's then-current renal failure, "is likely secondary to metastatic esophageal cancer (stage IV) and/or treatments for his metastatic esophageal cancer (stage IV) as his record does not contain a more likely etiology." His report contains a copy of a table of selected esophageal studies for esophageal cancer with headings that read Reference, Study Population, Exposed Cases and Estimated Relative Risk (95% CI). The references include Occupational, Environmental and Vietnam Veterans. The Vietnam Veterans category references two studies of Australian Vietnam veterans in 1997 whose estimated relative risks were 1.2 and 1.3. In December 2007, two VA physicians, including one oncologist, reviewed the Veteran's medical records and claims folder to determine whether the Veteran's esophageal cancer that caused his death was related to service. The examining physicians were asked to review the entire record and to specifically review Dr. Bash's report. Thereafter, they were to state whether or not it is at least as likely as not (50% probability) that the Veteran's metastatic esophageal cancer was caused by his exposure to Agent Orange in service. The physicians were asked to provide this opinion based on the Veteran's medical history, known medical knowledge of esophageal/stomach cancers, the Veteran's disease progression, and established medical knowledge about the relationship between herbicide exposure and the subsequent development of esophageal/stomach cancers. In the report, the physician-author noted that the claims folder and medical records were reviewed as was the opinion from Dr. Bash. The physician noted the diagnosis of esophageal cancer in July 2006 and the subsequent diagnosis that it was unresectable in August 2006. He noted the size and location of the tumor according to the operative notes. He also noted that the Veteran was a Vietnam era Agent Orange-exposed veteran. The physician then went on to state as follows: After review of the available medical literature, I am unable to find any association between exposure to agent orange and esophageal or gastric cancer. The Veteran's Agent Orange Update from 2004 also comes to a similar conclusion. The study cited in this report including a study by Akhtar, et al from 2004 does not show a positive correlation between exposure to agent orange and esophageal cancer. The estimated relative risk with a 95% confidence interval for this study in relation to incidence is below 1 suggesting that there is not an increased risk of esophageal adenocarcinoma with exposure to agent orange. Other studies which were reviewed in prior Updates have a 95% confidence interval range from below 1 to greater than 1 also indicating that there is no an increased relative risk of esophageal adenocarcinoma due to agent orange exposure. This case was discussed with the treating oncologist, who is also not aware of any literature showing a correlation between esophageal adenocarcinoma and agent orange. Opinion: Based on this review, it is my opinion that it is not at least as likely as not that the veteran's metastatic esophageal cancer was caused by his exposure to agent orange during his period of military service. In January 2008, the second VA physician performing the review concurred with this opinion. The Board finds that the preponderance of the evidence is against this claim. The December 2007 opinion is afforded considerable weight in the determination that the Veteran's esophageal cancer is not related to his service or his exposure to Agent Orange therein. It was based on a full review of the Veteran's claims file to include a review of Dr. Bash's report. In the VA examination report, the author-physician summarized the Veteran's relevant medical history and when viewed in context, the physician's opinion is accompanied by a sufficient explanation. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting a veteran's position); Lee v. Brown, 10 Vet. App. 336, 338 (1997) (an etiological opinion should be viewed in its full context, and not characterized solely by the medical professional's choice of words). Moreover, a second physician concurred with the report. The Board finds this opinion to be highly credible and probative of the issue of nexus, or the lack thereof. While the Board has considered the other medical evidence of record, it finds it less probative as to the issue of whether the esophageal cancer is due to in-service exposure to Agent Orange. Dr. Bash's opinion that the Veteran's esophageal cancer is likely due to service is supported by his premise that the record does not contain a more likely premise for his esophageal cancer. However, the VA must determine whether it is at least as likely as not that the esophageal cancer which, sadly, led to his death was due to service. His assertion that the record does not contain a more likely premise does not equate to VA's at least as likely as not standard. The Board consequently finds Dr. Bash's assessment that there is a nexus between the cancer and Agent Orange exposure in service to be of lesser probative weight than the VA medical opinion. The VA opinion fully considered Dr. Bash's opinion. The VA report was based on review of the Veteran's medical history, known medical knowledge of esophageal/stomach cancers, the Veteran's disease progression, and established medical knowledge about the relationship between herbicide exposure and the subsequent development of esophageal/stomach cancers. Dr. Bash's opinion, inasmuch as it addressed issues such as the standard of review by the IOM, and the DRO's lack of medical knowledge, is not probative as to whether this Veteran's cancer was actually related to his service. The VA report cites to unequivocal and well-established studies. For these reasons, the probative value of the VA opinion outweighs that of Dr. Bash's opinion. The Board has considered the appellant's statements that the Veteran's death was related to his service. However, since the appellant is a layperson without medical training, her opinions concerning these matters requiring medical expertise are of no probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In sum, there is no competent evidence of record that the Veteran's esophageal cancer was present in service or until many years thereafter, and the most probative medical opinion evidence is against a finding that the esophageal cancer was related to his active service or to exposure to herbicide therein. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for the cause of the Veteran's death is not warranted. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs