Citation Nr: 1338036 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-13 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active duty service from May 1965 to May 1969, including service in Vietnam. He died in December 2008. The appellant is advancing this claim as the Veteran's widow. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant testified at a Board hearing in December 2011. FINDINGS OF FACT 1. The Veteran died in December 2008. 2. The Veteran's death was causally related to herbicide exposure in Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 387 C.F.R. §§ 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is claiming entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. § 1310. The cause of a veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The essential argument advanced by the appellant is that the Veteran's death (by cancer of the tonsil with metastasis to the lung) was causally related to herbicide exposure during the Veteran's Vietnam service. The evidence shows that the Veteran served in Vietnam, and herbicide exposure is therefore conceded. 38 U.S.C.A. § 1116(f). It appears that the main argument presented by the appellant and her representative goes to the question of whether the cancer of the tonsil should be viewed as a respiratory cancer (cancer of the lungs, bronchus, larynx, or trachea) for purposes of granting service connection under the presumption for Vietnam veterans set forth in 38 U.S.C.A. 1116; 38 C.F.R. § 3.309(e). However, The Institute of Medicine update published in 2007 suggests inadequate or insufficient evidence to determine any association' existed between chemical exposure and certain cancers such as cancer of the oral cavity (including lips and tongue) and pharynx (including tonsils). The Board therefore declines to view the Veteran's cancer of the tonsil as falling under the presumption based on herbicide exposure. Although the death certificate does refer to cancer of the lungs, this was due to metastasis and was apparently not the primary cancer site. At any rate, the Board must also consider whether the Veteran's cancer was otherwise due to service, even if falling outside the presumption. In the present case, the claims file includes several opinions from medical doctors, including specialties in head and neck oncology and pulmonary medicine which are to the effect that it is likely that the Veteran's cancer was due to herbicide exposure. In a November 2006 statement, M. Masood Akbar, M.D. opines that the main underlying cause for the cancer was exposure to Agent Orange. Dr. Akbar noted that the Veteran had denied a history of smoking. In December 2005 and January 2007 statements, J. Denise Moylan, M.D. indicated that the Veteran's history of exposure to Agent Orange was, in her opinion, the cause of the carcinoma. Dr. Moylan emphasized that it was of extreme importance that the Veteran was a non-smoker. In a January 2007 letter, Fred. G. Fedok, M.D., Chief, Professor Otolaryngology-Head and Neck Surgery at Penn State Milton S. Hershey Medical Center indicated that it was highly probable that the Veteran's exposure to Agent Orange may be an etiologic factor. Dr. Fedok stressed that the Veteran did not have the common risk factors for head and neck cancer (smoking and alcohol use). The above medical opinions appear to be supported by clear rationales; that is, that the Veteran did not have the most common risk factors for his cancers. These medical doctors, who are specialists in the pertinent areas of medicine involved in this case, have all attributed the Veteran's cancer to herbicide exposure in light of the lack of the most common risk factors. The Board finds that these medical opinions collectively at a minimum push the evidence into a state of equipoise. A finding that the Veteran's cancer was due to his exposure to herbicides during service is therefore warranted. The Board again stresses that it is not finding that the cancer of the tonsil falls under the regulatory presumption for herbicide exposure. The Board if finding that regardless of that fact, the cause of this particular Veteran's death is nevertheless shown to be related to herbicide exposure. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the appellant is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in December 2009, the appellant was furnished notice of the manner of assigning an effective date. She will have the opportunity to initiate an appeal from thus "downstream" issue if she disagrees with the determination which will be made by the RO in giving effect to the Board's grant of service connection for the cause of the Veteran's death. ORDER Entitlement to service connection for the cause of the Veteran's death is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs