Citation Nr: 1311941 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 07-00 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina 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 K. Conner, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to September 1992. He died in May 2005. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the Board denied the claim. The appellant appealed, and in April 2012, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand. In October 2012, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran died in May 2005; the death certificate lists the immediate cause of death as recurrent nasopharyngeal carcinoma. An amended death certificate added "possibly secondary to exposure to Agent Orange." At the time of the Veteran's death, he was not service connected for any disability. 2. Nasopharyngeal carcinoma is not a disorder presumed to be caused by exposure to herbicides used in the Republic of Vietnam, including Agent Orange. 3. Nasopharyngeal carcinoma was not present during service or manifested to a compensable degree within one year after discharge from active duty; it was first diagnosed in 2003, more than 10 years after service discharge; and the preponderance of the evidence is against finding that it is related to service. CONCLUSION OF LAW Nasopharyngeal carcinoma was not incurred in or aggravated by service, nor is it presumed to have been incurred as a result of service. 38 U.S.C.A. §§ 1101, 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in correspondence dated in July 2005 of the information and evidence needed to substantiate and complete a claim and who bears responsibility for obtaining and submitting evidence. VA informed the appellant how an effective date is assigned in December 2006. The claim was readjudicated in a May 2011 supplemental statement of the case. Thus, there was no prejudice to the appellant as to the timing of the notice Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case is sufficient to cure a timing defect). In Hupp v. Nicholson, 21 Vet. App. 342 (2007) the Court held that in dependency and indemnity compensation cases, notice under 38 U.S.C.A. § 5103 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 claim for dependency and indemnity compensation based on a previously service- connected condition; and an explanation of the evidence and information required to substantiate a dependency and indemnity compensation claim based on a condition not yet service connected. In this case, while VA did not provide a formal Hupp letter, the appellant has demonstrated that she has actual knowledge that she can establish that the cause of the Veteran's death was related to service by showing that a disease or injury contributed to the Veteran's death. For example, her main claim is that the Veteran developed nasopharyngeal carcinoma from Agent Orange exposure, and she has provided a medical opinion to support her assertion. Additionally, she has argued entitlement to direct service connection by arguing that her husband had been ill since service discharge. See May 2008 letter (the Board notes the appellant signed the Veteran's name to the letter). This argument shows actual knowledge on the part of the appellant that she could establish entitlement to service connection for cause of the Veteran's death based upon direct service connection and presumptive service connection. She has argued that nasopharyngeal carcinoma should be associated with Agent Orange exposure. The claim was readjudicated in a May 2011 supplemental statement of the case. Hence, there is no evidence that the appellant was prejudiced by VA's failure to provide a Hupp notice, and no further notice is in order. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim. VA in December 2012 secured a medical opinion addressing the relationship between the cause of the Veteran's death and his military service. The appellant has submitted medical records, and in an August 2005 statement reported that she was unable to retrieve the medical records from Womack Army Medical Center and asked that VA obtain the records on her behalf. VA obtained the records. The appellant did request a hearing before the Board in her substantive appeal, however, she subsequently withdrew that request. See April 2008 statement. Thus, the Board finds there is no hearing request pending at this time. The Board remanded the claim in October 2010 to allow the appellant an opportunity to provide competent evidence for why the death certificate was amended in 2006 to add that the cause of death was "possibly secondary to exposure to Agent Orange." The appellant submitted a statement from a private physician. The appellant was also offered an opportunity to submit pertinent evidence following the October 2012 remand. The Board concludes she has been provided an opportunity to meaningfully participate in the adjudication of the claim and that she has in fact participated. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Service Connection for Cause of the Veteran's Death The Veteran died in May 2005. His death certificate lists the immediate cause of death as nasopharyngeal carcinoma. An autopsy was not performed. In November 2006, the appellant submitted an amended death certificate, with the words "possibly secondary to exposure to Agent Orange" written under the immediate cause of death. At the time of the Veteran's death, he was not service connected for any disability. The appellant argues that the Veteran developed nasopharyngeal carcinoma as a result of Agent Orange exposure while he was serving in Vietnam, which caused his death. She also states that the Veteran was chronically ill after service discharge with an unexplainable rash/skin disorder on his face, neck, and groin area. She also reports that the appellant had chronic shoulder, knee and foot pain. In order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disability caused death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either 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). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death that it combined to cause death, or 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). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. §§ 3.312(c)(3), (4). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be demonstrated either by showing direct service incurrence or aggravation, as discussed above, or by use of applicable presumptions, if available. 38 C.F.R. § 3.303(a); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As to presumptive service connection, some chronic diseases, such as malignant tumors, are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from active duty. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In addition, as to presumptive service connection, certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered 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). Respiratory cancers, such as cancers of the lung, bronchus, larynx, or trachea, are listed as diseases that have been associated with Agent Orange exposure. Nasopharyngeal carcinoma is not, however, listed as a disease associated with herbicide exposure for purposes of the presumption. See 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of entitlement to service connection for cause of the Veteran's death. With regard to the question of entitlement to service connection on a presumptive basis due to herbicide exposure, nasopharyngeal cancer, which was the cause of the Veteran's death, is not included 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. The Board acknowledges that in March 2011 Dr. KB, a private physician, stated that the respiratory system included the nostrils, nasopharynx, oral pharynx, glottis, trachea, bronchi, and bronchioles and that therefore it was "possible" the Veteran's nasopharyngeal cancer was secondary to exposure to Agent Orange. This statement does not, however, place the Veteran in the category of having a presumptive respiratory cancer. VA specifically set forth which respiratory cancers were associated with Agent Orange exposure, and in so doing did not include cancer of the nasopharynx. That omission was intentional. 75 Fed.Reg. 81332-3 (December 27, 2010). The only basis Dr. KB relied upon in finding that there was a "possible" connection was the fact that the nasopharynx is considered to be part of the respiratory system. The Board does not disagree with that determination; however, VA limited the respiratory cancers to those areas that it specifically listed under 38 C.F.R. § 3.309(e). Further, Dr. KB did not cite to any epidemiological evidence to support his assertion. He merely tried to connect nasopharyngeal cancer to those cancers that VA had determined were presumptively the result of Agent Orange exposure. Thus, this medical opinion does not provide a basis to award entitlement to service connection for cause of the Veteran's death. As noted in the October 2010 remand, VA has specifically determined that nasopharyngeal cancer is not associated with exposure to herbicide agent for purposes of the presumption. See Health Effects Not Associated With Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540-53 (Jun. 8, 2010); 72 Fed. Reg. 32,395-407 (June 12, 2007) (emphasis added). That is, taking account of the available evidence and the analyses of National Academy of Sciences, the Secretary has found that the credible evidence against an association between herbicide exposure and caner of the pharynx and nasal cavity 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 nasopharyngeal cancer due to herbicide exposure. The Court has noted that presumptive service connection under 38 U.S.C.A. § 1116(b)(1) is warranted for a disease when a positive statistical association exists between Agent Orange exposure and the occurrence of a disease in humans. VA is not, however, required to grant presumptive service connection for disabilities not on VA's presumptive Agent Orange list on the basis of the opinions of individual doctors that there is a statistical correlation between Agent Orange exposure and such disabilities. To allow the opinions of individual doctors to trump the collective view of experts on the issue of whether a statistical association with herbicide exposure exists with respect to a particular disease would be an impermissible expansion of available remedies beyond those explicitly provided by Congress. See Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009). Moreover, the evidence now includes the December 2012 opinion of a VA board certified oncologist who opined, after reviewing all the evidence of record, that it was less likely than not that nasopharyngeal carcinoma was related to service, to include on a presumptive basis. In reaching that opinion the oncologist noted that the Veteran's service treatment records did not include a diagnosis of nasopharyngeal carcinoma. In 2002, i.e., ten years after retiring from active duty, the Veteran did develop oropharyngeal pain, right jaw pain and weight loss. He was diagnosed with a tumor, and while the Veteran was treated with radiation and chemotherapy he ultimately died in June 2005 due to recurrent nasopharyngeal carcinoma. The VA oncologist opined that Dr. KB's statement that the cause of death was due to Agent Orange exposure was irrelevant, speculative and not based on evidence. The oncologist noted reviewing Dr. KB's report, but opined that it was well recognized that respiratory cancers differ significantly from head, neck, and nasopharyngeal cancers in pathophysiology, behavior and response to treatment. The VA oncologist further noted that Institute of Medicine/National Academy of Sciences studies had found no plausible association between Agent Orange exposure and nasopharyngeal carcinoma. The oncologist noted the argument regarding the incidence and prevalence of nasopharyngeal carcinoma in Asia, as well as the argument that these factors linked the Veteran's cancer with his service in the Republic of Vietnam. The oncologist opined, however, that this was not a defensible position since any such study was based on a review of the health of lifelong residents of a region in Asia versus the Veteran's transient status in Vietnam. The oncologist noted further that the Veteran was a smoker and that the risk factors for developing nasopharyngeal carcinoma included smoking. The oncologist observed that chemical risk factors for developing nasopharyngeal carcinoma had yet to be clearly established. In light of all of these factors, the oncologist could not link the Veteran's nasopharyngeal carcinoma to his service, to include his exposure to Agent Orange. The Board finds the opinion of the VA oncologist to be highly probative, and to be of greater probative value than the opinion offered by Dr. KB. In this regard, Dr. KB did not review all of the evidence of record. Moreover, Dr. KB did not discuss why he disagreed with the findings of the National Academy of Science which have been adopted by VA. In contrast, the VA oncologist's opinion is factually accurate, fully articulated, and provides sound reasoning for the conclusions reached. Hence, it is assigned greater probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The Board now turns to whether entitlement to service connection for nasopharyngeal carcinoma is warranted on a direct basis. Concerning direct service connection, if the claimed disease is not a presumptive disease 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, the appellant may establish service connection for the cause of the Veteran's death by (1) showing that the disease responsible for death actually was incurred in service; or (2) by submitting medical evidence of a nexus between the terminal disease, his exposure to herbicides during military service, and the cause of death. Combee, 34 F.3d at 1043-1044. The Board has reviewed the service treatment records. They are silent as to any complaints, treatment, or diagnosis of nasopharyngeal carcinoma during service. The first showing of a diagnosis of nasopharyngeal carcinoma was more than 10 years following service discharge. Thus, the presumption of in-service incurrence for a chronic disease manifested to a compensable degree within one year of service (in this case malignant tumors), is not for application. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a). Furthermore, post-service, there is no evidence or even a lay allegation of continuity of symptomatology of nasopharyngeal carcinoma since service discharge. 38 C.F.R. § 3.303(b). In a May 2008 statement, the appellant stated that the Veteran had continued health problems following service discharge, such as an unexplainable rash and skin disorder on his face, neck, and groin area; as well as shoulder, knee and foot pain. This lay statement, however, is insufficient to establish a continuity of symptomatology between service discharge and the 2003 diagnosis of nasopharyngeal carcinoma, as there is no competent evidence to indicate that these symptoms have any relevance to the Veteran's development of nasopharyngeal carcinoma 10 years after service discharge. Going back to the date that nasopharyngeal carcinoma was first diagnosed, i.e., more than 10 years after service discharge, the Federal Circuit has held that such a lapse of time of a showing of a disease or injury is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3d 1330, 1332 (Fed. Cir. 2000). With respect to Dr. KB's opinion that it was "possible" that the Veteran's diagnosis of nasopharyngeal carcinoma was secondary to exposure to Agent Orange, the Board already has explained why it found the opinion was insufficient to establish presumptive service connection. The Board has also found Dr. KB's opinion to be of minimal probative value when compared to the opinion provided by the VA oncologist. Indeed, as to direct service connection, Dr. KB's opinion is speculative, at best. Dr. KB merely noted there was a possibility that the nasopharyngeal carcinoma was secondary to exposure to Agent Orange, which the Board finds does not provide a sufficient basis upon which to grant the claim. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus). A speculative relationship cannot be the basis for finding that the evidence is in equipoise, or stated another way, that reasonable doubt exists. 38 C.F.R. § 3.102(a) (reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility). The Board reiterates that the National Academy of Sciences and VA found that the credible evidence against an association between herbicide exposure and cancers of the pharynx and nasal cavity outweigh the credible evidence for such an association, such that it was concluded that a positive association does not exist. As acknowledged by the VA oncologist, the appellant has submitted an article from the internet to the effect that nasopharyngeal cancer is rare in the United States but more common in Asia. She alleges that because the Veteran served in Vietnam, that that was why he had developed the cancer. This article does not, however, establish a nexus between service and nasopharyngeal cancer because such finding "is too general." Sacks v. West, 11 Vet. App. 314, 317 (1998) (a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). Of course, a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). See Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility"). Notably, however, there is no discussion in the article why someone in Asia has a higher chance of getting this cancer, and no discussion whether there is a difference between someone who lives in Asia versus someone was temporarily stationed in the Republic of Vietnam. Additionally, this article is not accompanied by the opinion of any medical expert addressing the article in light of the Veteran's own experiences. Thus this evidence is insufficient to establish the required medical nexus opinion. In sum, the preponderance of the evidence is against entitlement to service connection for the immediate cause of death listed on his death certificate - nasopharyngeal carcinoma. With regard to lay evidence, in certain instances lay evidence from the Veteran's spouse, when competent, can establish a nexus between the Veteran's death and an in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). This case is not one of those instances. Although the appellant is competent to report her observations on the Veteran's medical symptoms and discomfort during his lifetime, she is not competent to render a medical opinion addressing the etiology of his nasopharyngeal carcinoma without evidence showing that she has medical training or expertise. See 38 C.F.R. § 3.159(a)(1), (2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). She does not meet any of the three exceptions for competent lay evidence as listed under Jandreau. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to service connection for the cause of the Veteran's death. Given that the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not applicable to this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for cause of the Veteran's death is denied. _________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs