Citation Nr: 1320271 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-35 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to November 1971. The Veteran died in March 2006. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. As an initial matter, the Board noted that in May 2013, the appellant submitted additional argument in support of her claim. She requested that the case be returned to the RO for consideration of this argument; however, as the Board is granting in full the appellant's claim and as this new evidence appears duplicative of other statements submitted by the appellant, the Board finds that the appellant will not be prejudiced if the Board addresses the merits of this case without first remanding the matter for RO consideration. FINDINGS OF FACT 1. The Veteran died in March 2006. The death certificate lists the immediate cause of death as metastatic breast cancer. 2. The Veteran's metastatic breast cancer was more likely than not caused by exposure to Agent Orange during his active military service. CONCLUSION OF LAW The Veteran's death was caused by a disability incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to this claim. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Service Connection for the Veteran's Cause of Death As noted above, the Veteran died in March 2006. The death certificate lists the immediate cause of death as metastatic breast cancer, a disability for which the Veteran was not service connected prior to his death. The death certificate does not list any other cause of death or any underlying or contributory cause of death. The appellant asserts that the Veteran's metastatic breast cancer was caused by exposure to Agent Orange. To establish service connection for the cause of the Veteran's death, the evidence must show that the fatal disease was incurred in or aggravated by service or that a service-connected disability caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2012). A service-connected disability will be considered a contributory cause of death when it combined to cause death, or aided or lent assistance to the production of death. Generally, a service- connected disability, particularly one not materially affecting a vital organ, would not be held to have contributed to death primarily due to an unrelated disability. 38 C.F.R. § 3.312(c). Service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. In this regard, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also 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) (2012). To establish a right to compensation for a current disability, the evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities, such as malignant tumors, if such are shown to have been manifested to a compensable degree within a specified period after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b) (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). VA regulations also provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e) (2012). 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 service. 39 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27,630-27,641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov.2, 1999). However, even if the claimed disability is not on the list of diseases subject to presumptive service connection due to exposure to an herbicide agent, service connection may be established by proof that the claimed disability was actually caused by exposure to an herbicide agent during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the record shows that the Veteran served in the Republic of Vietnam during the Vietnam War from October 1970 to November 1971; accordingly, exposure to Agent Orange is presumed. However, breast cancer is not among the diseases which the Secretary has determined is associated with exposure to herbicides used in the Republic of Vietnam during the Vietnam War and the Veteran's breast cancer did not develop within one year of service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, service connection on a presumptive basis is not warranted for the Veteran's breast cancer. As such, service connection for the cause of the Veteran's death can only be established with proof of actual direct causation. See Combee, supra. As noted above, the Veteran died in March 2006. According to his death certificate, the cause of his death was metastatic breast cancer. Medical records prior to his death reflect that the cancer metastasized to multiple bones, causing bony lesions and multiple fractures. A biopsy of the breast mass showed "infiltrating ductal carcinoma of no special type, moderately differentiated." In September 2009, one of the Veteran's treating oncologists, Dr. A.M., presented a medical opinion stating that as a result of Agent Orange exposure, the Veteran may have developed breast cancer. In December 2012, the Board referred the case for a medical opinion from the Veteran's Health Administration (VHA). An oncologist was asked to review the medical evidence contained in the Veteran's claims file to form an opinion as to the Veteran's personal medical situation and risk factors for his terminal metastatic breast carcinoma; and render an opinion as to whether it is more, less, or equally likely that the Veteran's terminal cancer was 1) caused by herbicide exposure in Vietnam, or 2) otherwise related to his military service. In a opinion received in March 2013, Dr. J.L., a VA oncologist and an associate professor, opined that the Veteran's in-service exposure to Agent Orange was more likely than not the cause of his metastatic breast cancer. Dr. J.L. noted that the Veteran was young when he developed breast cancer, which is atypical, and he had none of the known risk factors for breast cancer. Dr. J.L. noted that dioxin, a highly toxic substance found in Agent Orange and some other herbicides, is known to be related to a number of cancers such as multiple myeloma, certain lymphoma, certain leukemia, prostate cancer, soft tissue sarcoma as well as several non-malignant diseases in veterans. Dr. J.L. also observed that because male breast cancer is quite rare, no epidemiological studies have been conducted to investigate whether or not Agent Orange is a causative factor in the development of the disease. In light of Dr. J.L.'s positive opinion and in the absence of any evidence to the contrary, entitlement to service connection for the cause of the Veteran's death is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs