Citation Nr: 1340649	
Decision Date: 12/09/13    Archive Date: 12/20/13

DOCKET NO.  12-35 777	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to service connection for esophageal cancer.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from May 1966 to May 1969, and from July 1971 to April 1973; he served in the Republic of Vietnam from March 15, 1971 to January 28, 1972.  He died in July 2012, and the appellant is his surviving spouse and has been substituted by the RO to complete the processing of the deceased Veteran's appeal.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which denied the Veteran's claim for service connection.

In August 2012, the RO granted the request of the appellant, as the surviving spouse of the Veteran, to be substituted as the claimant in this matter to complete the processing of the deceased Veteran's claim.  See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A (West Supp. 2010), substitution in case of death of a claimant who dies on or after October 10, 2008); see also 76 Fed. Reg. 8,666 -01 (Feb. 15, 2011) (Proposed Rule).

The issue of entitlement to service connection for the cause of the Veteran's death has been raised by the record-including at the appellant's September 2013 hearing-but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's esophageal cancer had its onset in service.


CONCLUSION OF LAW

Esophageal cancer was incurred in service.  38 U.S.C.A. §§ 1110, 1154(a), 5107(b), 5121A (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The appellant asserted in her September 2013 hearing testimony that she believes that the Veteran's physicians indicated that his esophageal cancer was related to exposure to the herbicide Agent Orange.  See transcript, pp. 3-4.

As the Veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and in the absence of affirmative evidence to the contrary, he is presumed to have been exposed to herbicides during his Vietnam service.  38 C.F.R. § 3.307(a)(6)(iii).  Esophageal cancer, however, is not among the conditions for which presumptive service connection is available based on herbicide exposure.  38 C.F.R. §§ 3.307, 3.309 (e) (2013).  Accordingly, service connection on a presumptive basis is not warranted.  The unavailability of presumptive service connection for a disability based on exposure to herbicides, however, does not preclude a veteran from establishing service connection with proof of direct causation,  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In November 2013, a VHA medical expert opined that it is at least as likely as unlikely that the Veteran's Barrett's esophagus was related to or had its onset in service.  The VHA specialist further opined that it is likely that the Veteran's Barrett's esophagus caused or aggravated his esophageal cancer by increasing the likelihood of developing the disease.  There is no contrary medical opinion evidence.  As such, service connection for esophageal cancer is warranted.


ORDER

Service connection for esophageal cancer is granted.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs