Citation Nr: 1432149 Decision Date: 07/17/14 Archive Date: 07/22/14 DOCKET NO. 10-09 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to September 1971. He died in 2008. The Appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2008 and June 2008 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case was remanded in September 2012 and has been returned to the Board for review. FINDINGS OF FACT 1. Prior to his death, the Veteran had not established service connection for any disability. 2. The preponderance of the competent and probative evidence of record shows that the Veteran did not die of a disease that was due to service or that a disease related to service contributed to his death. CONCLUSION OF LAW The criteria for the establishment of service connection for the Veteran's death are not met or approximated. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. In cases involving a claim for Dependency and Indemnity Compensation (DIC), so including for service connection for cause of death, this VCAA notice must include: (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the DIC claim based on a condition not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In the September 2012 remand, the Board noted that the Appellant was not provided with Hupp-compliant notice. The Appellant was sent additional and sufficient notification in November 2012. Subsequent to the Hupp notice the RO readjudicated the case in a June 2013 supplemental statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the duty to assist, the claim's file contains the Veteran's service treatment records (STRs), VA medical records, private medical records, and the Appellant's contentions. The Board remanded the case to obtain additional VA medical records and additional STRs. In June 2013, VA issued a Formal Finding of Unavailability with respect to treatment records from the Ann Harbor, Michigan and Toledo, Ohio VA Medical Centers. Later that month, VA issued a second Formal Finding of Unavailability with respect to additional STRs. Shortly thereafter, the Appellant was provided with the substance of this finding, noting that all appropriate steps had been taken to locate his service treatment records, to no avail. She was also reminded that the ultimate responsibility to provide records rested with her. See VA Report of General Information, June 20, 2013. The Board also remanded this claim to obtain a medical nexus opinion concerning the determinative issue of an etiological relationship between his military service, specifically Agent Orange exposure and his death. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Opinions in May 2013 (VA examiner) and June 2013 (Independent Medical Examiner (IME)) provided findings and opinions that are substantially responsive to the determinative issue of causation and are in whole compliant with this remand directive. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); and Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, the duty to assist the Appellant with this claim also has been satisfied. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on her behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. II. Service Connection for the Cause of the Veteran's Death Service connection for the cause of the veteran's death may be granted if a disorder incurred in or aggravated by service caused, hastened, or contributed substantially or materially toward death. 38 U.S.C.A. § 1310(b); 38 C.F.R. § 3.312. A service-connected disability is the principal cause of death if it singly, or jointly with some other conditions, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The death certificate reflects that the Veteran died in early 2008. According to his certificate of death, the immediate cause of death was hypoxemia. Duodenal/gastric/esophageal adenocarcinoma with metastasis possibly Agent Orange contribution/post cerebrovascular accident were listed as a significant condition contributing to his death but not resulting in the underlying cause. At the time of his death, the Veteran had not established service connection for any disability. The Appellant argues that the Veteran's various diagnoses of gastrointestinal adenocarcinomas were related to his exposure to herbicides during service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection will be rebuttably presumed for certain chronic diseases (e.g., malignant tumors) which are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. VA regulations also provide that a veteran who had active military, naval, or air service 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 that service. 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309(e). See 38 C.F.R. § 3.307(a)(6)(ii). Aside from the above-mentioned presumptive provisions, service connection may be established by satisfactory proof of direct service connection. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) and Brock v. Brown, 10 Vet. App. 155, 160 (1998). Regarding the Agent Orange claim, the records show that the Veteran served in the Republic of Vietnam during the Vietnam era from June 1967 to June 1968 and June 1969 to December 1970. His exposure to herbicides is presumed. Post service records show that he sought treatment for back pain in October 2007. Diagnostic testing revealed esophageal, duodenal and gastric adenocarcinomas. However, gastrointestinal cancers are not on the list of diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Thus, the automatic presumption of service connection afforded for certain specific diseases associated with exposure to herbicides, specifically Agent Orange, is not for application in this case. In fact, VA also has specifically determined that gastrointestinal tumors, including those of the esophagus and stomach, are not associated with exposure to herbicide agent for purposes of the presumption. See 72 Fed. Reg. 32,395 (June 12, 2007). That is, taking account of the available evidence and National Academy of Science's analysis, the Secretary has found that the credible evidence against an association between herbicide exposure and gastrointestinal cancer outweighs the credible evidence for such an association, such that he has determined that a positive association does not exist. This determination was based on medical research, and provides very strong evidence against presumptive service connection for gastrointestinal cancers. As to the question of "direct" (i.e., not presumptive) service connection, the Board requested a comprehensive opinion in the September 2012 remand. Two physicians (See May 2013 VA examination report and June 2013 IME report) reviewed the record and concluded that the Veteran's gastrointestinal cancers were unrelated to Agent Orange exposure. The VA physician in May 2013, in support of her conclusion, pointed to the 2010 report from the Institute of Medicine (IOM) on Veterans and Agent Orange, which have not found an association between gastrointestinal cancers and exposure to Agent Orange (stating that there was inadequate or insufficient evidence to support such a link). An IME in June 2013 noted the Agent Orange reference on the death certificate. However, he also cited to the IOM report and reiterated that there was insufficient evidence to determine whether there was an association that existed between Agent Orange and gastrointestinal cancers. This physician went on to note that the Veteran's cancer, papillary adenocarcinoma is a rare histologic entity among gastric adenocarcinomas. The risk factors included achalasia, obesity, gastroesophageal reflux disease (GERD), H. Pylori, genetic factors, certain drugs that relax the esophageal sphincter, and diets that are high in cholesterol, animal protein, and B12. He indicated that the Veteran did not have any of these risk factors and there was no obvious explanation as to the cause of the veteran's gastrointestinal cancers. The Board finds the VA physician and the specialist's medical opinions persuasive and consistent with the medical evidence of record. The objective evidence of record also seems to substantiate the supposition of these physicians. In this case, there is no evidence that Agent Orange has been causally linked to the development of gastrointestinal cancers. Moreover, the Board places greater weight on the reports of the physicians than the lay statements of the Veteran's widow, due to the thorough review of the Veteran's medical history, the discussion of the Veteran's symptoms, and expertise. The physicians thoroughly considered the possibility of the Veteran's gastrointestinal cancers being related to Agent Orange, and rejected it based upon reasonable medical principles supported by the medical evidence. In whole, these opinions are informed, medically competent and responsive to the Board's inquiry. See Monzingo v Shinseki, 26 Vet. App. 97 (2012) ((holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion" ) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). Additionally, the Veteran was first treated and diagnosed with esophageal cancer in 2007, 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. As referred to above, 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. As the Veteran's cancer did not manifest until many years after service, presumptive service connection is not warranted on this basis. Id. In view of the foregoing, the Board must conclude that the preponderance of the evidence is against a claim of service connection for the cause of the Veteran's death either on a direct or presumptive basis. ORDER Service connection for the cause of death is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs