Citation Nr: 1342857 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-46 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1318 (West 2002). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to January 1969. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in November 2009 and September 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified before the undersigned via videoconference hearing from the RO in October 2011. A transcript of that hearing is of record. The paper claims file and the Virtual VA paperless claims file have been considered. FINDINGS OF FACT 1. The Veteran died in November 2006; as a result of metastases to the lung from a primary cancer of squamous cell carcinoma of the base of the tongue. 2. The Veteran is presumed to have been exposed to herbicides during his Vietnam service; however, his cause of death is not subject to presumptive service connection based on such exposure; there is no direct link to herbicide exposure or to service; and the malignant tumor first manifested many years after service. 3. The Veteran was not receiving, or entitled to receive, total disability compensation for service-connected disability for ten years prior to his death, or continuously since service for at least five years, and he was not a prisoner of war. CONCLUSIONS OF LAW 1. The criteria to establish service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1310, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2013). 2. The criteria to establish entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA must provide claimants with notice and assistance in substantiating a claim for benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The appellant was provided adequate notice in a June 2009 letter, prior to the initial adjudication of her claims. This included the disabilities for which the Veteran was service-connected at the time of death, and the evidence and information necessary to establish all five elements of a service connection claim, to include for a cause of death that was not already service-connected. The appellant was also advised of the requirements for DIC benefits pursuant to 38 U.S.C.A. § 1318, and who was responsible for obtaining which types of evidence for her claims. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Additionally, the October 2011 Board hearing focused on the elements necessary to substantiate the appellant's claims. The undersigned asked questions to obtain pertinent evidence and suggest missing evidence, and the appellant and her representative demonstrated actual knowledge of the required elements. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (discussing the requirements of 38 C.F.R. 3.103(c)(2)). The appellant has had ample opportunity to participate in the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Further, all pertinent, available medical evidence has been obtained, including service treatment records and post-service records for which the appellant provided authorization. The Board also obtained medical opinions from specialists with the Veterans' Health Administration (VHA), pursuant to 38 C.F.R. § 20.901, to determine whether the cause of the Veteran's death was related to service, to include his presumed herbicide exposure. See 38 U.S.C.A. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). There is no argument or indication that the opinions are inadequate, or that further medical evidence is necessary. There is no additional notice or assistance that would be reasonably likely to aid in substantiating the claims. VA has satisfied its duties to inform and assist, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the appellant will not be prejudiced by a decision. II. Analysis Service connection for the cause of the Veteran's death A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability is one that was incurred in or aggravated during service, or may be presumed to have been incurred during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The relevant presumptive regulations are discussed below. Where a disease is first diagnosed after service, service connection will be granted 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In this case, the certificate of death reflects that the Veteran died in November 2006. The immediate cause of death was listed as lung metastases, due to (or as a consequence of) tongue carcinoma. The certificate also indicates that tobacco use contributed to death. The Veteran was only service-connected for a left knee disability at the time of death. The appellant does not assert that the Veteran's left knee disability caused or contributed to the cause of his death, nor is there any other evidence to suggest this. Instead, the appellant contends that the Veteran's tongue cancer, which is listed as a contributory cause of death on the death certificate, should be service-connected on a direct or presumptive basis due to exposure to Agent Orange during service. If a veteran served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, he or she will be presumed to have been exposed to herbicides, including Agent Orange, during such service. 38 C.F.R. §§ 3.307(a)(6). Here, the Veteran served in Vietnam during the presumptive period. As such, he is presumed to have been exposed to herbicides during such service. Certain listed diseases, including respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), will be presumed service-connected due to herbicide exposure during service if they manifest to a compensable degree at any time. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Service connection may not be granted on a presumptive basis as due to herbicide exposure for any condition for which VA's Secretary has not specifically determined that a presumption of service connection is warranted. See, e.g., 68 Fed. Reg. 27630 (May 20, 2003); see also 38 U.S.C.A. § 1116(b),(c) (tasking the Secretary with determining which diseases are subject to presumptive service connection based on all available sound medical and scientific information). In this case, the evidence does not demonstrate a principal or contributory cause of death that is subject to presumptive service connection based on herbicide exposure. Although the Veteran's certificate of death lists the immediate cause of death as lung metastases; presumptive service connection is based on the primary cancer cite, not any metastatic sites. Ramey v. Brown, 9 Vet. App. 40, 44 (1996). There is no evidence suggesting that the Veteran had primary cancer in the lungs. As such, service connection for the cause of death is not warranted based on lung cancer. The appellant contends that the base of the tongue is a part of the airway or respiratory system and, therefore, the Veteran's tongue cancer that contributed to cause his death should be presumptively service connected based on herbicide exposure under § 3.309(e). The appellant is a registered nurse and has some experience in oncology and head and neck surgery. See Board hearing transcript. In a March 2009 letter, the Veteran's treating oncologist, Dr. Chaudhry, offered a similar opinion with additional reasoning. Dr. Chaudry stated that "the usual cause of [squamous cell carcinoma at the base of the tongue] is some type of chronic irritant of the base of the tongue." He noted the Veteran's exposure to Agent Orange during service, and opined that this was more likely than not the cause of his cancer. Dr. Chaudhry reasoned that the carcinogenic effects of this herbicide were well known, and stated that the Veteran's cancer fit the "criteria of diseases currently recognized by the VA Medical System as related to herbicide exposure, including respiratory cancer since this cancer was part of the pharyngeal system." The appellant also points to statements in the May 2013 and August 2013 VHA reports that the Veteran's tongue cancer should be considered a cancer of the "aerodigestive tract," arguing that this showed that it was a respiratory cancer subject to presumptive service connection. In May 2013, a VHA oncologist indicated that the aerodigestive tract was one continuous tract that started with the lips or nose and continued along an airway or oral passage to distant sites such as the lungs or stomach. In August 2013, the VHA occupational medicine specialist clarified that the Veteran's tongue cancer was in the upper part of the digestive tract. He stated that the National Cancer Institute of the National Institute of Health defines the aerodigestive tract as the "combined organs of the tissues of the respiratory tract and the upper part of the digestive tract (including the ... tongue [and other areas])." In sum, the appellant's opinion and arguments are premised upon presumptive service connection for cancers affecting the airways or respiratory tract in general, or the aerodigestive tract and upper part of the digestive tract as clarified by the VHA specialists. Dr. Chaudhry's opinion is also premised on presumptive service connection for respiratory cancer, with reference to the tongue and pharynx. The May 2013 VHA specialist expressly confirmed that the Veteran's tongue cancer was not a part of the lung, bronchus, larynx, or trachea. He noted that that VA and the Institute of Medicine (IOM) have been very specific as to what conditions are presumed to be associated with Agent Orange exposure, and they have routinely not included all cancers of the oral cavity or of the head and neck. He specifically noted that cancers of the tongue, tonsils, pharynx, and the floor of the mouth were not considered by the IOM and VA as associated with Agent Orange. This summary is consistent with VA regulations and reports. Specifically, VA's Secretary has repeatedly determined, based on reports of the National Academy of Sciences (NAS), that there is inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and cancers of the oral cavity (including the tongue), the pharynx, or the nasal cavity; for other unspecified sites within the respiratory system; and for cancer of the digestive organs. See, e.g., 77 Fed. Reg. 47924, 47927 (Aug. 10, 2012). The scientific bases for these determinations, including multiple studies, are summarized therein. Id. As such, presumptive service connection has not been authorized for those areas. Although 38 C.F.R. § 3.309(e) refers to respiratory cancer, this is qualified by a reference to the specific parts of that system for which presumptive service connection has been authorized; namely, the lungs, bronchus, larynx, or trachea. Therefore, the appellant's contentions that the tongue should be included in the respiratory system as contemplated by § 3.309(e), including as part of the pharyngeal system or aerodigestive tract, are not persuasive and must fail. VA's publication of specific findings that pharyngeal and tongue cancers were not found to be associated with herbicide exposure, belies a conclusion that VA intended to consider those cancers part of the respiratory system and subject to presumptive service connection. The opinions of Dr. Chaudhry and the appellant are dependent on the mistaken belief that VA intended to include tongue and pharyngeal cancer among respiratory cancers; hence their opinions are of limited probative value. Nevertheless, the determination that presumptive service connection is not warranted for a particular disease does not preclude VA from granting service connection with evidence of a direct causal link to service, including based on herbicide exposure. See, e.g., 77 Fed. Reg. at 47924; see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The appellant and Dr. Chaudry based their opinions on presumptive service connection; however, two VHA specialists gave well-reasoned opinions regarding whether there was otherwise a direct link between the Veteran's tongue cancer and service. In a May 2013 report, a VHA oncologist noted the Veteran's past medical history, including that he was essentially healthy until being diagnosed with squamous cell carcinoma at the base of the tongue at age 57 in August 2004, which led to his death. He noted the Veteran's significant history of tobacco use of 47 years smoking a half pack or more of cigarettes per day, as well as occasional alcohol use. After noting that VA had routinely excluded cancers of the tongue and various parts of the aerodigestive tract as being presumptively related to Agent Orange exposure, the VHA oncologist stated that any exposures to the distant sites such as the lungs or stomach would naturally pass through the nose or mouth, including the tongue. He stated that "it is not a big leap" to think that any agent that may have contributed to the development of a malignancy due to exposure would have the same potential to all areas similarly exposed. However, the VHA oncologist then stated that he was not aware of any medical literature that specifically links squamous cell malignancies on the base of the tongue to herbicide exposure. He indicated that the majority of the literature is from the IOM and is updated from time to time. In contrast, the VHA oncologist stated that there is a "clear link" to increased incidence of malignancies of the tongue and smoking and alcohol intake. He noted that other factors, including genetics, infections, and other unspecified exposures, clearly played a role in the development of this type of cancer. The VHA oncologist stated that the question of whether it was at least as likely as not that the Veteran's tongue cancer was directly related to his in-service herbicide exposure, or otherwise related to his service, was probably better answered by an epidemiologist. Nevertheless, the VHA oncologist opined that the Veteran's exposure to Agent Orange during service played "very little role" in the development of his squamous cell cancer at the base of the tongue, and that there was "way less than a 50 percent chance" that such exposure was related to the diagnosis. He noted that this was a difficult question because there was a dose dependent aspect to cigarette/tobacco and alcohol exposure and the predisposition to similar malignancies, but the IOM has not specified a quantity of exposure by dose or timeline for Agent Orange exposure and VA presumed exposure. In an August 2013 report, a VHA specialist in occupational medicine (similar to epidemiology) opined that it was not at least as likely as not that the Veteran's squamous cell carcinoma at the base of the tongue was related to his in-service exposure to Agent Orange, or was otherwise related to his military service. This specialist noted that squamous cell carcinoma accounts for approximately 90 percent of all oral cancers, and the etiology is multifactorial. Like the VHA oncologist, he found no evidence in the medical literature to show a relationship between cancer of the tongue and Agent Orange exposure. The VHA occupational medicine specialist stated that oral cancers are strongly related to lifestyle, habits, and diet, particularly tobacco and alcohol use. He noted that the Veteran had a significant smoking history and drank alcohol on a regular basis. The VHA occupational medicine specialist discussed the general carcinogenic effects of tobacco on the entire mucosa of the upper aerodigestive tract, and noted that certain individuals may have greater susceptibility to cancer caused by tobacco based on genetics. He also explained that tobacco and alcohol use had a synergistic effect that increased the rate of cancer causation, in that the risk of head and neck cancer was up to 17 times higher in persons who smoked or drank than in persons who did neither of these activities. The specialist noted Dr. Chaudhry's statement in March 2009 that the usual cause of the Veteran's type of carcinoma is a chronic irritant of the base of the tongue. After considering all pertinent evidence, including Dr. Chaudhry's opinion, this VHA specialist opined that it is more likely that the Veteran's tongue cancer was related to his smoking and drinking, and possibly a genetic susceptibility, rather than to his exposure to Agent Orange. The summary of the Veteran's medical history by the two VHA specialists is consistent with the Board's review of the evidence. In particular, as noted above, the Veteran's certificate of death indicates that tobacco contributed to cause his death, with an immediate cause of lung metastases due to tongue cancer. These statements were made by a physician, and are also consistent with the VHA opinions. Private treatment records show that in September 2004, the Veteran was diagnosed with squamous cell carcinoma at the base of the tongue, and he reported a tobacco use history of smoking a half pack of cigarettes a day for 48 years. The Board is tasked with determining the probative value of pertinent evidence. The probative value of a medical opinion is determined based on three factors: (1) whether the expert was fully informed of the pertinent facts or medical history, with or without review of the claims file; (2) whether there is a fully articulated opinion; and (3) whether the opinion is supported by a reasoned analysis, not just data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). The appellant did not purport to offer a direct opinion linking the Veteran's tongue cancer to service. Moreover, although she has some medical expertise as a registered nurse, she indicated that cancer and the head and neck were not her primary areas of expertise. Further, the physician opinions of record, particularly the VHA opinions, appear to reflect a higher degree of medical training, experience, and knowledge. As such, the appellant's opinion has very low probative value. Dr. Chaudhry clearly has expertise in the etiology of cancer, as an oncologist. To the extent that his March 2009 opinion letter may be construed as offering a direct link between the Veteran's tongue cancer and service based on herbicide exposure as a chronic irritant, the Board finds this opinion to be less probative than the VHA specialists' reports. In particular, Dr. Chaudhry did not discuss the Veteran's other medical history, including his significant smoking history. Further, Dr. Chaudhry did not cite to any medical literature, and his reasoning was sparse. See id. In contrast, the VHA specialists' opinions are highly probative. They each have relevant medical expertise, considered the Veteran's pertinent medical history, and provided detailed opinions and rationale supported by relevant medical articles as applied to the facts of the Veteran's case. See id. The VHA specialists also considered the evidence gathered by the IOM in various studies, which are cited in VA's report concerning whether a positive link has been found between certain conditions and herbicide exposure. See e.g., 77 Fed. Reg. at 47928 (indicating that detailed information on the NAS findings may be found at www.iom.edu). The VHA specialists both opined that the Veteran's tongue cancer was less likely than not related to service, to include his herbicide exposure. The Board notes that the May 2013 VHA specialist appears to indicate that there is a possibility that Agent Orange may have caused the Veteran's tongue cancer, stating that "it is not a big leap" to think that any agent that may have contributed to the development of a malignancy due to exposure at a distant site (such as the lungs) would have the same potential to all areas similarly exposed (such as the mouth or tongue). This specialist also indicated that the etiology was a difficult question given the lack of a dose dependent aspect to herbicide exposure. Nevertheless, the mere possibility of a link to service, to include herbicide exposure, is insufficient to establish a causal link, as there must be a relative equipoise, or at least 50 percent probability, to warrant service connection. See 38 C.F.R. § 3.102; cf. Bostain v. West, 11 Vet. App. 124, 127 (1998) (stating that a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). Further, this specialist went on to state that he had not found any literature linking the Veteran's cancer to herbicide exposure, and gave a negative etiology opinion. As such, the opinion remains highly probative. Additionally, although the August 2013 VHA specialist discussed the effects of tobacco use, alcohol use, and genetic susceptibility in general terms, he also discussed these risk factors for the development of squamous cell carcinoma as they applied directly to the Veteran's case. The Board notes that this specialist referred to a possible genetic susceptibility to cancer, without evidence of specific susceptibility in the Veteran's case. Nevertheless, this opinion remains highly probative because the specialist also considered the Veteran's documented smoking history, which was noted by several other medical professionals to be a significant contributing factor, as well as to his possible (or presumed) herbicide exposure. In light of the above, the most probative evidence is against a finding that the Veteran's cause of death, tongue cancer, is presumptively or directly related to his presumed herbicide exposure in service. Therefore, service connection is not warranted on this basis. See 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e). Additionally, the Veteran was first treated and diagnosed with tongue cancer in 2004, and there is no argument or indication that there were any manifestations prior to that time. In other words, the disease did not have its onset during service so as to warrant direct service connection on that basis. See 38 C.F.R. § 3.303. The Board notes that cancer of any type is a malignant tumor, which might be presumptively service connected as a chronic disease if it manifested during service, or to a compensable degree within one year after service. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As the Veteran's cancer did not manifest until many years after service, presumptive service connection is not warranted on this basis. Id. In sum, the evidence does not demonstrate that the Veteran's cancer of the tongue was subject to presumptive service connection based on herbicide exposure, or was actually caused by such exposure. There is no other direct or presumptive link to service. The preponderance of the evidence is against service connection for the cause of the Veteran's death. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply. As such, the appellant's claim must be denied. 38 U.S.C.A. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. DIC under 38 U.S.C.A. § 1318 DIC benefits pursuant to 38 U.S.C.A. § 1318 may be granted to a survivor spouse where the Veteran died of nonservice-connected causes if certain conditions are met. Specifically, the Veteran must not have died as the result of his or her own willful misconduct and, at the time of death, must have been receiving, or "entitled to receive," compensation for a service-connected disability that was (1) rated by VA as totally disabling for a continuous period of at least ten years immediately preceding death; or (2) rated by VA as totally disabling continuously since the Veteran's release from active duty and for a period of at least five years immediately preceding death; or (3) rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the Veteran was a former prisoner of war who died after September 30, 1999. The total disability rating may be based on schedular considerations or on unemployability. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. The term "entitled to receive" generally means that the Veteran filed a claim for disability compensation during his lifetime and would have been entitled to total disability compensation, but had not received such award or compensation for various reasons. See 38 C.F.R. § 3.22(b). None of those circumstances applies. The appellant does not argue that the provisions of 38 U.S.C.A. § 1318 have been met for any reason, and the pertinent facts are undisputed. Specifically, the Veteran was discharged from service in January 1969, more than five years prior to his death. He was also not a former prisoner of war. In a September 1971 rating decision, he was assigned a noncompensable (0 percent) disability rating for a left knee injury. There were no other service-connected disabilities at the time of the Veteran's death in November 2006 from lung metastases due to tongue cancer, which has been determined to be nonservice-connected herein. As such, the Veteran was not rated as totally disabled for at least 10 years prior to his death. Additionally, the Veteran was not entitled to receive total disability compensation for the requisite period of time prior to his death as contemplated by § 3.22(b). In particular, although two of the Veteran's claims were denied in his lifetime in a 1971 rating decision, there is no indication or allegation that these claims were denied due to clear and unmistakeable error. There were also no additional service department records received after the Veteran's death to substantiate a claim. Further, the Veteran had not been awarded total disability compensation that had been withheld or was being paid to his dependents for any reason. See id. The claim for DIC benefits under 38 U.S.C.A. § 1318 must be denied as a matter of law, and the benefit-of-the-doubt doctrine does not apply. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (stating that where the law and not the evidence is dispositive, the claim must be denied based on the absence of legal merit). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC pursuant to 38 U.S.C.A. § 1318 is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs