Citation Nr: 1319935 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-36 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for metastatic squamous cell carcinoma of the left extremity, to include as due to herbicide exposure, and for the purpose of accrued benefits. 2. Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her niece ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1955 to November 1975. The Veteran died in December 2007, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the appellant testified at a video conference hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript is of record. The appellant's case was remanded by the Board in April 2012, and most recently his claims file was sent to a VA oncologist for a Veterans Health Administration (VHA) opinion. The requested opinion was returned to the Board in April 2013 and the case is ready for adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service personnel records indicate the Veteran entered Vietnam; herbicide exposure is conceded. 2. The Veteran died in December 2007. According to the death certificate of record, the Veteran's immediate cause of death was metastatic squamous cell carcinoma of the left extremity. 3. At the time of the Veteran's death, service connection was in effect for the following disabilities: status post incomplete dislocation of the right acromioclavicular joint with chronic tingling and numbness of the right ulnar nerve distribution, evaluated as 10 percent disabling; simple fracture third metatarsal bone of the right foot, evaluated as 0 percent disabling; status post left Caldwell-Luc procedure with left sinusitis, evaluated as 0 percent disabling; scar, status post cyst removal of the left shin, evaluated as 0 percent disabling; laceration scar on the forehead over the right eye, evaluated as 0 percent disabling; and laceration scar of the right index (trigger) finger, evaluated as 0 percent disabling. 4. In a July 2011 rating decision, service connection for the purpose of entitlement to retroactive benefits was granted for arteriosclerotic heart disease, coronary artery disease with myocardial infarction, and status post percutaneous transluminal angioplasty, all associated with herbicide exposure. 5. Lung cancer caused by active service, to include exposure to herbicides, caused or aided materially to the Veteran's death. 6. Metastatic squamous cell carcinoma of the left extremity is not a disease presumed to be associated with Agent Orange/herbicides; it was first manifested years after service and was not shown to be related to service or to a service-connected disability based upon evidence in the claims file at the time of death. CONCLUSIONS OF LAW 1. A disability incurred in active service caused the Veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). 2. The criteria for service connection for metastatic squamous cell carcinoma of the left extremity, claimed as due to herbicide exposure, for the purposes of accrued benefits, have not been met. 38 U.S.C.A. §§ 1110 , 1112, 1131, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309, 3.310, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) redefined VA's duty to assist the claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009) (unpublished). In letters dated in December 2008, the RO satisfied the notice requirements of Hupp as outlined above. In short, these letters as well as earlier letters dated in May 2007 and February 2008 satisfy VA's duty to inform the claimant under the VCAA with respect to the cause of death and accrued benefits claim. This duty included delineating the evidence VA would assist in obtaining and the evidence it was expected that the appellant would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was notified of the requirements of Dingess/Hartman in the May 2007 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c),(d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA made reasonable attempts to obtain identified medical records pertinent to the claims. The RO obtained a medical opinion addressing the relationship, if any, between the Veteran's cancer and the cause of his death. This opinion is adequate as the physician who prepared it explained the reasons for his conclusions based on an accurate characterization of the evidence of record and supported his conclusion with an analysis that is adequate for the Board to consider and weigh against any contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The Board acknowledges that a VA medical opinion was not obtained in response to the appellant's service connection claims for cancer, but has determined that a medical opinion is not required in this case. The medical evidence of record is sufficient to decide the claims and for the reasons given below there is no competent evidence of an association between the Veteran's metastatic squamous cell carcinoma of the left extremity and service or a service-connected disability. 38 U.S.C.A. § 5103A(d) (West 2002); see McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Also, the appellant presented hearing testimony before the Board in January 2012. Finally, a Veterans Law Judge who conducts a hearing must fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2) (2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the appellant was assisted at the January 2012 video hearing by an accredited representative from the Disabled American Veterans, and, during the hearing, the Acting Veterans Law Judge fully explained the issues on appeal. The Acting Veterans Law Judge and the Veteran's representative asked questions during the Board hearing regarding the appellant's contentions. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the appellant or her representative. Neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that the Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), consistent with Bryant, and that any error in notice provided during either hearing constitutes harmless error. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for service connection for metastatic squamous cell carcinoma of the left extremity, claimed as due to exposure to herbicides, for accrued benefits purposes and for entitlement to service connection for the cause of the Veteran's death are thus ready to be considered on the merits. Service Connection Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see generally 38 C.F.R. § 3.303 . Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was 'noted' during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b) . In addition, service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans who served 90 days or more of during a war period, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a) , 3.309(a). 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. 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), 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 soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010). During the pendency of the appellant's claim and appeal, VA amended 38 C.F.R. § 3.309(e) to include ischemic heart disease. 75 Fed. Reg. 53202 (August 31, 2010). The pertinent part of that amendment added the following to § 3.309(e): "Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina)." 75 Fed. Reg. 53202, 53216 (August 31, 2010). This amended rule applies to claims received by VA on or after August 31, 2010 and to claims pending before VA on that date. 75 Fed. Reg. 53202 (August 31, 2010). Id. The appellant's claim was pending before VA on that date. Notwithstanding the foregoing presumptions, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board is responsible for evaluating the evidence of record and assigning due probative weight. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Washington v. Nicholson, 19 Vet. App. 362, 267-68 (2005); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Upon weighing the evidence, if 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis Periodic monetary benefits to which a veteran was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of death, and due and unpaid, shall be paid to the surviving spouse. 38 U.S.C.A. § 5121 ; 38 C.F.R. § 3.1000(a). Evidence in the file at date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3.1000(d)(4). A claim for VA benefits pending on the date of death means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5). The appellant contends that the Veteran was entitled to service connection for metastatic squamous cell carcinoma of the left extremity, due to herbicide exposure, based on the evidence of record at the time of his death. Thus, the provisions of 38 C.F.R. §§ 3.307 and 3.309 warrant consideration which, as noted above, allow for service connection on a presumptive basis, without additional evidence of a link between service and the currently diagnosed disability, where a veteran served on active duty in the Republic of Vietnam during the Vietnam era and the currently diagnosed disorder is among the presumptive disabilities enumerated under 38 C.F.R. § 3.309(e). The Veteran's service records confirm that he served on active duty in Vietnam and his exposure to herbicide agents is thus presumed. However, as metastatic squamous cell carcinoma of the left extremity is not among the listed presumptive disabilities for exposure to herbicide agents, presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309(e) is not applicable to these claims. As noted, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). The Veteran's service treatment records are devoid of treatment for or diagnoses of metastatic squamous cell carcinoma of the left extremity. Rather, post-service medical records reflect diagnoses of metastatic squamous cell carcinoma of the left extremity many years after service, specifically October 2006. Accordingly, as there is no claim or showing of the disability since service or continuity of symptomatology after service, service connection under the provisions of 38 C.F.R. § 3.303(b) has not been established. As far as the provisions of 38 C.F.R. § 3.303(d) regarding establishing a medical nexus, the only evidence relating the Veteran's post-service metastatic squamous cell carcinoma of the left extremity to service, including exposure to herbicide agents, is the appellant's assertions in this regard. Although lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology, see Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F. 3d 1372, 1376-66 (Fed.Cir. 2007)), this matter appears to be the type of medical matter as to which the courts have held lay testimony is not competent. Thus, based on the facts of this case, the appellant is not competent to render an opinion as to the cause or etiology of the Veteran's metastatic squamous cell carcinoma of the left extremity as such matters require medical expertise which the appellant is not shown to possess. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Clyburn v. West, 12 Vet. App. 296 (1999). Despite the findings below, the Board notes that service connection on a secondary basis is also not warranted. As only evidence in the file at the time of the Veteran's death is relevent, the Board finds there was no evidence in the file at that time to suggest that his lung cancer caused his metastatic squamous cell carcinoma of the left extremity. The evdeince supporting that conclusion was obtained after December 2007. In sum, with respect to the claim for service connection for metastatic squamous cell carcinoma of the left extremity, claimed as due to exposure to herbicides, for accrued benefits purposes, the Board finds that the third essential criterion for a grant of service connection-a causal relationship between the post active duty disabilities and a disease or injury incurred or aggravated during active service-has not been met in this case. 38 C.F.R. § 3.303; Shedden, supra. Because the competent evidence neither supports the claim, nor is in relative equipoise on this question, the benefit-of-the-doubt doctrine is not for application, and the claim for service connection for metastatic squamous cell carcinoma of the left extremity, claimed as due to exposure to herbicides, for accrued benefits purposes, must be denied. See 38 U.S.C.A. § 5107(b) . Service Connection for Cause of Death Legal Criteria Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). To establish service connection for the cause of a veteran's death, the evidence must show a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). 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. 38 C.F.R. § 3.312(b) (2012). Contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability 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) (2012). If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the Veteran less capable of resisting the effects of other diseases. 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 (West 2002); 38 C.F.R. § 3.102 (2012); 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. Analysis The Veteran died in December 2007, and the Veteran's widow seeks service connection for the cause of the Veteran's death. To establish entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability either incurred in or aggravated by his military service, or which was proximately due to, the result of, or aggravated by a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 3.312 (2012). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b) (2012). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death. 38 C.F.R. § 3.312(c) (2012). It is recognized there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated regardless 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. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (2012). According to the Veteran's death certificate, the immediate cause of death was metastatic squamous cell carcinoma of the left extremity. In January 2009, an amendment to the death certificate shows that lung carcinoma and exposure to Agent Orange was added as an 'other significant condition contributing to death' but not resulting in the underlying cause. At the time of the Veteran's death, service connection was in effect for the following disabilities: status post incomplete dislocation of the right acromioclavicular joint with chronic tingling and numbness of the right ulnar nerve distribution, evaluated as 10 percent disabling; simple fracture third metatarsal bone of the right foot, evaluated as 0 percent disabling; status post left Caldwell-Luc procedure with left sinusitis, evaluated as 0 percent disabling; scar, status post cyst removal of the left shin, evaluated as 0 percent disabling; laceration scar on the forehead over the right eye, evaluated as 0 percent disabling; and laceration scar of the right index (trigger) finger, evaluated as 0 percent disabling. In a July 2011 rating decision, service connection for the purpose of entitlement to retroactive benefits was granted for arteriosclerotic heart disease, coronary artery disease with myocardial infarction, and status post percutaneous transluminal angioplasty, all associated with herbicide exposure. A 30 percent disability evaluation was assigned for such disability from July 15, 1991, until the Veteran's untimely demise. Review of the evidentiary record reveals that the Veteran was diagnosed with metastatic squamous cell carcinoma of the left axilla from an unknown primary site in October 2006. In March 2007, the Veteran underwent a wide skin and soft tissue resection with en bloc radical left axillary adenectomy. During the surgery, it was discovered that the cancer had spread to the main neurovascular structures of the left axilla. As such, the planned surgery was deemed an ineffective treatment for the Veteran, and instead, a fore-quarter amputation of the left upper extremity was conducted in March 2007. In May 2007, the Veteran underwent a restaging workup, and there was no evidence of any local or distant metastatic disease. In September 2007, a second restaging evaluation was performed, and there were noted signs of a chest wall mass on the left side that was considered suspicious for a recurrent disease. By November 2007, restaging evaluations showed a bulky local recurrence within the flap covering the postsurgical defect at the site of the left shoulder disarticulation extending between the ribs towards the paravertebral space and infiltrating the left T2-T3 neural foramen, metastatic bilateral hilar lymphadenopathy, subcarinal lymphadenopathy, 2.4 centimeters of solitary mass in the right upper lobe, and all sites of the metastatic disease had doubled in size upon comparison to his initial stage evaluation in September 2007. See August 2008 private medical statement. In November 2007, the Veteran was admitted to a private hospice care facility with diagnoses of cancer of the axilla, status post left shoulder disarticulation, and cancer of the bilateral lungs and left chest wall. See the November 2007 private initial summary narrative. In December 2007, the Veteran died at the private hospice care facility, and the diagnosis upon discharge was lung cancer. See the November 2007 and December 2007 private hospice treatment records. November 2007 and December 2007 hospice records reflect that the Veteran died from lung cancer, and an August 2008 private medical physician stated that it was "possible" that the Veteran's malignancy was related to his previous Agent Orange exposure. A March 2008 VA opinion report shows that that the Veteran most likely had pulmonary metastases from squamous cell cancer of the skin; however, this opinion was rendered without review and consideration of the Veteran's final treatment records. In June 2012, a VA hematologist/oncologist reviewed the Veteran's claims folders and rendered an opinion. She indicated that she was in agreement with the March 2008 VA examiner's findings. In providing an extensive summary of the Veteran's pertinent medical history, the examiner noted that the records were consistent for a primary soft tissue, not primary lung, squamous cell carcinoma. Acknowledging an initial summary dated on November 28, 2007, from Oasis Health Care with an admission diagnosis of cancer of the left axilla, cancer of lungs and chest wall, and cancer of lymph nodes, the examiner stated that this record was wrong. She noted that there were no other records from Oasis to contradict the findings and diagnoses of the MD Anderson Cancer Center (a primary soft tissue, not primary lung, squamous cell carcinoma). She stated that at time of the admission the fact that the initial site was the axilla and not lung had been clearly established at MD Anderson but not reflected in the Oasis notes. Furthermore, as to the amendments to the death certificate, the examiner found no basis for this amendment as there was no objective evidence to support the addendum, and she opined that it was a clear misstatement of fact into the record. Noting that there was no presumptive link between Agent Orange and soft tissue or skin squamous cell carcinoma, the examiner determined that there was no evidence that squamous carcinoma was incident to any other condition or event during service. She also stated that none of the medications provided to the Veteran for service-connected conditions were associated with risk of squamous cell carcinoma. In January 2013, the Board requested a VHA opinion. A March 2013 opinion from a VA oncologist indicated that any patient presenting with metastatic squamous cell cancer occult lung primary, should be considered even though the workup with CT scans and PET scans are negative at the time of presentation. "Usually metastatic squamous cell cancer in areas other than cervical or inguinal nodes, represents metastatic from an occult primary lung cancer - Textbook of Devitta-Section on Unknown Primary." The Veteran's cancer had an aggressive course which is unusual for a skin primary. With the aggressive nature of his cancer and subsequent abnormality in the lung with right upper lobe quadrant mass, and mediastinal mass, it is more thank likely that the Veteran had primary lung cancer that had metastasized to left axillary nodes and presented as an unknown primary. Smoking is the main risk factor for lung cancer, however, at the time the Veteran has diagnosed with cancer, he had quit smoking for more than 15 years thereby reducing his risk of lung cancer by 80 percent. The Veteran had a history of exposure to pesticides during his service. Due to the unusual presentation and aggressive nature of the disease it is more likely as not that his cancer is related to pesticide (Agent Orange) exposure from his service in the military. The oncologist opined that it is more likely than not that the Veteran's lung cancer was the primary cancer and had metastasized to axillary nodes. It is also more likely as not that the Veteran's cancer is lung primary rather than skin cancer primary. In sum, there are conflicting medical opinions concerning whether the Veteran had lung cancer which caused squamous cell carcinoma of the left extremity or squamous cell carcinoma of the left extremity which caused lung cancer. The VHA opinion by a VA physician has persuasively explained why the amended certificate of death is correct and has convinced the Board that the Veteran's death was due to his lung cancer. The VA oncologist also found that the Veteran's lung cancer was due to herbicide exposure during active service. Accordingly, entitlement to service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for metastatic squamous cell carcinoma of the left extremity, to include as due to herbicide exposure, and for the purpose of accrued benefits, is denied. Entitlement to service connection for cause of the Veteran's death is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs