Citation Nr: 1343097 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 08-28 983 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to dependency and indemnity compensation based upon service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her brother in law ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from September 1962 to March 1990. He was awarded the Combat Infantryman Badge and the Vietnam Campaign Medal, among other awards and decorations. He died in February 2002. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO), which found that new and material evidence had not been submitted to reopen the claim for service connection for the cause of the Veteran's death. In April 2011, the appellant and her brother-in-law testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. In August 2011, the Board found that new and material evidence sufficient to support reopening the previously-denied claim had been submitted, and then remanded the matter for further evidentiary development and for initial RO consideration. Such development and consideration having been accomplished, the matter is once again before the Board for appellate review. The Board has reviewed the Veteran's physical claims file and also evidence available in his virtual VA electronic file. In September 2012, the appellant filed a claim for death pension benefits. No action has yet been taken upon this claim. It is therefore referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran died in February 2002 of esophageal cancer. 2. At the time of his death, service connection was in effect for deafness, left ear; post operative residuals, herniated nucleus pulposus, lumbosacral spine; tinea pedis/jungle rot of the feet; and post operative residuals, right inguinal hernia. 3. The Veteran's esophageal cancer was not related to herbicide exposure during service in Vietnam. 4. None of the Veteran's service-connected disabilities, singly or together, were either the principal or a contributory cause of his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically with respect to claims for DIC, the United States Court of Appeals for Veterans Claims (Court) has required that VA must provide a detailed notice to the claimant. This notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and 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 (2007), rev'd on other grounds, 329 Fed.Appx. 277 (Fed. Cir. 2009) (unpublished). Although this information was not provided to the appellant in letter form, review of the Board's April 2011 hearing transcript makes clear that the appellant had actual understanding of these concepts. Specifically, her testimony and the testimony of her brother in law, along with the pointed questions posed by her representative, made clear that the appellant understood what was required to support a claim for service connection in this case. It is also noted that the appellant requested the record be held open following the hearing to obtain additional medical evidence; and she did in fact submit additional evidence directed to showing how the Veteran's death was the result of his military service, further evidencing her actual knowledge. Furthermore, neither the appellant, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. With respect to the April 2011 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Acting Veterans Law Judge specifically noted the bases of the prior determinations or the elements that were lacking to substantiate the increased rating claim. He asked specific questions, directed at identifying any relationship between the Veteran's thirty years of service and the cause of his death. He also specifically sought to identify any pertinent evidence not currently associated with the claims file. Finally, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). With regard to the VA medical opinion which is of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still 'entitled to assume' the competency of a VA examiner and the adequacy of a VA opinion without 'demonstrating why the medical examiners' reports were competent and sufficiently informed'); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Here, neither the appellant nor her representative has challenged the adequacy of the VA examiner's opinion. The Board also finds that the VA opinion obtained in this case is fully adequate. The opinion was predicated on a review of the claims folder and the relevant medical records contained therein, contains a description of the history of the disabilities at issue; and documents and considers the Veteran's specific complaints and symptoms. The VA physician considered the evidence of record, to include the supporting opinions provided by the Veteran's primary care physician, and provided a rationale for the opinions rendered, citing to both the Veteran's medical records and to the medical literature to support his conclusions. Accordingly, the Board finds that the VA's duty to assist with respect to obtaining a VA opinion has been met. 38 C.F.R. § 3.159(c)(4). Medical treatment records, including the records from the Veteran's cancer treatment, have been obtained and reviewed in support of the appellant's claim. The hearing testimony has been carefully reviewed. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. Analysis The Veteran was discharged from service in 1990 after nearly 30 years of honorable military service. He passed away in February 2002, and the cause of his death was determined to be cardiopulmonary arrest due to esophageal cancer. At the time of his death, service connection was in effect for deafness, left ear; post operative residuals, herniated nucleus pulposus, lumbosacral spine; tinea pedis/jungle rot of the feet; and post operative residuals, right inguinal hernia. The appellant has advanced three theories of entitlement to service connection. The first is that the Veteran's presumed herbicide exposure while serving in the Republic of Vietnam during the Vietnam War caused him to develop esophageal cancer. Her second theory is that the Veteran developed a hiatal hernia in service and possibly gastroesophageal reflux disease (GERD) and that these conditions led to the development of his esophageal cancer. Lastly, she asserts that his long-term use of non-steroidal anti-inflammatory drugs to treat his service-connected back pain caused his peptic ulcer disease which then contributed to the development of esophageal cancer. To establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or 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. Regulations pertaining to Agent Orange exposure, which includes all herbicides used in Vietnam, provide that if a veteran served on active duty in Vietnam during the Vietnam era, the veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, including some types of cancer, for which service connection may be presumed due to an association with exposure to herbicide agents. However, esophageal cancer is not one of the diseases for which a connection may be presumed under law. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Evidence which may be considered in rebuttal of service incurrence of a disease listed in Section 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307(d). In support of her claim, the appellant has submitted a series of letters from Dr. Palmer. In February 2007, Dr. Palmer asserted that a contributing cause of the Veteran's death was GERD. She indicated that hiatal hernias increase the risk and incidence of acid reflux into the esophagus which is a contributor to Barrett's esophagus (a precancerous condition that can progress to esophageal cancer). She explained that the Veteran had a history of GERD treatment in prior years and thus had an increased risk for esophageal cancer. Here, Dr. Palmer explained how GERD could cause esophageal cancer, but her opinion failed to explain how this process was present in the Veteran's case. She did not point to any medical records showing that he had GERD, that it began in service, or that it had actually progressed to Barrett's esophagus. In a June 2007 letter, Dr. Palmer wrote that "long term use of non-steroidal anti-inflammatory drugs (NSAIDs), used for treatment of joint and back pain, can possibly cause peptic ulcer disease," and that "[u]ntreated reflux esophagitis has been known to increase the risk of esophageal cancer." However, this opinion is simply too equivocal to provide the requisite nexus and it did not specifically address the facts of this Veteran's medical history. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). In May 2011, Dr. Palmer wrote another letter in which she indicated that there are many contributing factors causing cancers, explaining that that any carcinogen exposure will increase the risk of cancer, including toxins, chemicals (herbicides, including Agent Orange). She stated that it was likely that any such exposure during the Veteran's military service combined with his acid reflux disease, would have increased his risk of getting esophageal cancer. Again, this statement is also highly equivocal in that it talks about increased risk factors, but does not show why the presence of such risk factors made it at least as likely as not that such factors caused or contributed to causing this Veteran's cancer. As was discussed, the Veteran also had a long smoking history, although he quit approximately a decade before the diagnosis of his cancer, but Dr. Palmer did not mention this risk factor. Thus, while Dr. Palmer's letters suggested the possibility that the Veteran's esophageal cancer was the result of either his military service or a service connected disability, her opinions lack the supporting rationale and specific analysis of the medical facts of the Veteran's history; and therefore, her opinions alone are insufficient to establish service connection. Nevertheless, because Dr. Palmer's opinions suggested the possibility of a nexus, the Board remanded the appellant's claim in an effort to obtain additional supporting medical evidence. In September 2011, a Board-certified gastroenterologist reviewed of the Veteran's medical history as reflected in his claims file and provided the following opinion: It is the reviewer's opinion that the adenocarcinoma of the esophagus was less likely as not caused by or result of exposure to Agent Orange during service in Vietnam in the late 1960s. The rationale for this opinion is that there is no evidence found in the medical literature that Agent Orange is a risk factor in the pathogenesis of adenocarcinoma of the esophagus. The known pathogenesis of this cancer is related to gastroesophageal reflux, with the subsequent development of Barrett esophagus (metaplasia), and then the developing of dysplasia, and then adenocarcinoma. It is also know that smoking is a risk factor for the development of adenocarcinoma of the esophagus. The Veteran had a diagnosis of gastroesophageal reflux as described by the Veterans' primary care physician, Dr. Palmer. It is the examiner's opinion that it is less likely than not that the Veteran's gastroesophageal reflux disease began during military service. The rationale for this opinion is that review of the claims file and the records therein [reflect that] the Veteran reported no symptoms of gastroesophageal reflux disease at the time of his retirement physical in 1990, nor at the time of the compensation and pension examination in May 1990. There was no history or record of a hiatal hernia found or occurring during military service. There is no documentation of when the Veteran's symptoms of gastroesophageal reflux disease began and no specific treatment was reported in the record. The letters written by Dr. Palmer in 2007 indicating that gastroesophageal reflux disease followed by the development of Barrett esophagus associated with hiatal hernia are risk factors for the development of adenocarcinoma of the esophagus. This sequence in the pathogenesis of adenocarcinoma of the esophagus is supported by medical evidence well-documented in the medical literature. However, in a subsequent letter in 2007 Dr. Palmer suggested that nonsteroidal anti-inflammatory drugs are a risk factor for the development of adenocarcinoma of the esophagus. Review of the medical literature does not support this view. Lastly, in a third letter dated in May 2011, Dr. Palmer suggested that the exposure to Agent Orange was a risk factor in the pathogenesis of adenocarcinoma of the esophagus. There is no evidence in the medical literature upon which to base this statement. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). As set forth above, the record contains conflicting medical opinions from two physicians who have the requisite medical training and experience necessary to opine on complex medical questions. One of the physicians was the Veteran's primary care doctor, but the Court has declined to adapt a "treating physician rule" which would afford greater weight to the opinion of a veteran's treating physician over the opinion of a VA or other physician. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Following a careful review of the medical opinions of record, the Board finds that the VA opinion is more probative as it is better grounded in the specific facts of the Veteran's case and it is better supported by the medical literature. The VA opinion was thorough and contained well-researched opinions grounded in the relevant medical literature, which are particular to the Veteran and his case. Dr. Palmer's opinions, to the contrary, contain little explanation, no citations to any medical authority, and no citations to the Veteran's medical record. Rather, her statements constitute general statements about risk factors for esophageal cancer. Yet, even then Dr. Palmer did not address for example the Veteran's smoking history, and a history of smoking as explained by the VA examiner is one of the contributing risk factors for the development of esophageal cancer. The Board will now address the appellant's contentions in turn. Although the Veteran served in Vietnam and is thus presumed to have been exposed to herbicides during the course of such service, the cause of his death, esophageal cancer, is not one of the diseases which may be presumed under law to have been caused by herbicide exposure. Thus, presumptive service connection for the cause of the Veteran's death as due to herbicide exposure is not warranted. See 38 C.F.R. § 3.307. Nevertheless, a Veteran may establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Court has specifically held that the holding of Combee is applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). In this case, Dr. Palmer has suggested the possibility of a link between the Veteran's cancer and his presumed herbicide exposure, writing that the combination of herbicides and GERD increased the Veteran's risk of developing esophageal cancer. The VA physician disagreed with this theory, however, explaining that medical literature did not support such a relationship. As noted, the examiner's opinion is found to be more probative as it is grounded in the medical literature; whereas Dr. Palmer's opinion did not cite to any study that would support her contention. The appellant's second theory of entitlement is the Veteran developed a hiatal hernia during service and that his GERD may have been undiagnosed during service as well. Review of his service treatment records does not support his theory, however, as there is no indication of either condition during service. In this regard, the Board notes the appellant's credible testimony to the effect that her husband did not generally complain of physical problems and did not like to seek medical care. While this testimony is entirely consistent with the limited number of medical records available for review, it also shows why it is so difficult at this point to pinpoint when the Veteran's hiatal hernia developed and when GERD developed. Unfortunately, there simply is no evidence to support a finding that either condition was present during service. As noted by the VA examiner, the service treatment records are silent for either a hiatal hernia or GERD. The appellant's last claim is that long-term use of non-steroidal anti-inflammatory drugs for the Veteran's service-connected back pain contributed to his development of esophageal cancer. Again, Dr. Palmer posited this theory in her opinion, but she did not support her assertion with any citation to medical literature; and, as the VA examiner explained, the medical literature does not support such a position. As discussed, the VA examiner's opinion is found to be considerably more probative than are three statements provided by Dr. Palmer and therefore it is afforded greater weight. When this is done, the evidence for and against simply is not in equipoise, but rather tilts significantly against the finding that service connection for the cause of the Veteran's death is warranted. The Board is very sympathetic towards the appellant's case, and regrets the loss of her husband. The Board is also deeply appreciative of his lengthy and honorable service to his country. However, the Board is bound by the law, and this decision is dictated by the relevant statutes and regulations. Here, as discussed, the weight of the evidence in this case is solidly against a conclusion that the Veteran's death was in any way the result of either his military service or his service connected disabilities, to include as caused by long-term pain medication, or by exposure to herbicides in Vietnam. As such, service connection for the cause of the Veteran's death is denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs