Citation Nr: 1624243 Decision Date: 06/16/16 Archive Date: 06/29/16 DOCKET NO. 13-04 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to herbicide exposure in service. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from September 1966 to November 1971 and from June 1975 to April 1990. The Veteran received the Purple Heart and Bronze Star with a combat "V" device, among other decorations, for this service. The Veteran died in July 2009 and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. This claim was before the Board in May 2014, and remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Appellant in the development of her claim, to include obtaining a medical opinion. The requested development has been completed and the matter is ready for review. Stegall v. West, 11 Vet. App. 268 (1998). The Appellant testified at a hearing before the Board in January 2014. A VLJ who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Appellant was assisted by a representative, and both the representative and the VLJ asked relevant questions concerning the Veteran's symptoms and the resulting impairment, as well as the effect of his disability on his daily life and his occupation. Neither the Appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). FINDINGS OF FACT 1. The Veteran died in July 2009 from esophageal cancer. 2. At the time of his death the Veteran was service connected for dense fibrotic macular scar of the left eye, osteoarthritis of the knees, posttraumatic stress disorder (PTSD), as well as postoperative residual scar of the right dorsal wrist due to ganglion cyst excision, scar of the right jaw and right chest, and scar residuals from fragment wounds to the right ear, right thumb, and index finger. 3. A service connected disability was neither the principal nor a contributory cause of the Veteran's 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. §§ 1110, 1154, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant has claimed that she is entitled to service connection for the cause of the Veteran's death. The Veteran died in July 2009 from esophageal cancer. Specifically, the Appellant has asserted that his cancer was caused by exposure to herbicides in service. At the time of the Veteran's death he was not service connected for any cancer disabilities or any disabilities related to herbicide exposure in service. He was service connected for dense fibrotic macular scar of the left eye, osteoarthritis of the knees, posttraumatic stress disorder (PTSD), as well as postoperative residual scar of the right dorsal wrist due to ganglion cyst excision, scar of the right jaw and right chest, scar residuals from fragment wounds to the right ear, right thumb, and index finger. Having carefully considered the claim in light of the evidence of record, the Board finds that service connection for the cause of the Veteran's death, to include as due to herbicide exposure, is not warranted. The law provides that service connection may be established for the cause of a Veteran's death when a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110 and 1112. A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Accordingly, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. The record reflects that at the time of his death, the Veteran was service-connected for dense fibrotic macular scar of the left eye, osteoarthritis of the knees, posttraumatic stress disorder (PTSD), as well as postoperative residual scar of the right dorsal wrist due to ganglion cyst excision, scar of the right jaw and right chest, scar residuals from fragment wounds to the right ear, right thumb, and index finger. However, the Veteran died from esophageal cancer and the evidence does not suggest and the Appellant does not assert that this was related to any of his service connected disabilities. Nevertheless, the Appellant may establish service connection for the cause of the Veteran's death, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection in the context of this claim, once the death of the Veteran has been established, there must be medical evidence, or in certain circumstances, competent lay evidence of in-service occurrence or aggravation of a disease or injury leading to death within the regulatory scheme; and competent medical evidence of a nexus between an in-service injury or disease and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999) (both discussing the factors of service connection). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as esophageal cancer, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2014). If a Veteran was exposed to Agent Orange during service, certain listed diseases, including ischemic heart disease (including coronary artery disease), are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42600, at 42606-42607 (June 24, 2002). The Veteran's DD 214 shows that the Veteran did have service in the republic of Vietnam and received the Bronze Star medal with device, Purple Heart with one star, Republic of Vietnam Cross of Gallantry with Palm, and Vietnam Service Medal. As such, the Veteran is entitled to the presumption of exposure to herbicides in service, specifically Agent Orange. However, esophageal cancer is not one of the cancers listed as diseases associated with herbicide exposure for purposes of the presumption, presumptive service connection is not warranted. 38 C.F.R. § 3.309(e). However, when a Veteran is found not be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Veteran was diagnosed with adenocarcinoma of the distal esophagus in November 2007. As such, the first requirement of service connection has been met. The remaining questions are whether there is evidence of an in service occurrence of an injury or disease and competent evidence of a nexus between the disability and his active military service. On the question of whether direct service connection is warranted as due to exposure to herbicides in service, evidence of an incident in service is not required because it is presumed that the Veteran was exposed to herbicides in service. Service treatment notes do not reveal any complaints or treatment for cancer in service or complaints of gastro-intestinal problems in service. A Report of Medical Examination from April 1989, one year before the Veteran separated from service, evaluates his abdomen and viscera as well as his endocrine system as being clinically normal. The Veteran was diagnosed with cancer seventeen years after discharge from service. Since the Veteran was not diagnosed in service or within one year of his separation from service, the Board will review the evidence in order to determine if there is any competent evidence linking the Veteran's cancer to his active military service, including the Appellant's contention that it is related to exposure to herbicides. On the Appellant's substantive appeal, dated February 2013 and similarly at her hearing in January 2014, she states that her husband was a marine infantryman in Vietnam and was certainly exposed to Agent Orange during his time in country. The Board does not dispute this fact. The Appellant also argues that Agent Orange is a listed human carcinogen capable of causing cancer. The Board does not dispute this fact either. She also states the he was treated by private physicians when he was first diagnosed with cancer and the Board has reviewed the medical evidence provided including these private treatment notes, and these do not suggest that the Veteran's cancer is related to his active military service. The closest suggestion is a note from Dr. Rao recollecting that the Veteran was exposed to Agent Orange in service. Dr. Rao, however, fails to link the Veteran's esophageal cancer to this exposure. However, the issue in the present case is not whether the Veteran was exposed to herbicides in service, or whether herbicides cause cancer generally but as to whether the exposure to herbicides in service caused the Veteran's esophageal cancer. During the Board hearing, the Appellant noted that from her research it appeared that while the government recognized lung and respiratory cancers as being related to Agent Orange they did not recognize esophageal cancer as being directly related. She indicated that she would do her best to get a nexus statement from one of the physicians and the record was held open so that statement could be submitted. Unfortunately, a statement was never submitted. The Board sought a medical opinion to determine the relationship, if any, between herbicides and the Veteran's esophageal cancer. The Veteran's file, including his service treatment notes and his post service treatment notes were reviewed by a VA examiner in June 2014. The examiner concluded that it was less likely than not that his cancer was caused by or incurred in the Veteran's military service including exposure to herbicides. The examiner noted that the Veteran's death certificate lists esophageal cancer as the cause of death, with no other secondary or contributing causes of death listed. The examiner reviewed private treatment notes regarding the Veteran's cancer and notes that the primary site of his cancer was the esophagus, which is cancer of gastrointestinal origin. It is noted that although Agent Orange is a known carcinogen for several types of cancers, it is not known to cause cancer of gastrointestinal origin. Further, the examiner commented that there is no clear scientific evidence to date showing a likely link between herbicide and dioxin exposure and the development of gastrointestinal cancer. The American Cancer Society has extensively reviewed the scientific literature and studies regarding cancer causation due to environmental agents and has not found to date any evidence linking herbicides and dioxin to gastrointestinal cancer. Per the American Cancer Society excellent summary, according the examiner, of the relationship of Agent Orange to various cancers, "gastrointestinal cancer: cancers of the gastrointestinal system, esophagus, stomach, liver, pancreas, colon and rectum, have been extensively studied in Vietnam veterans, groups with herbicide exposure in the workplace, and people exposed to dioxins. Most of the studies have not found a link between these exposures and gastrointestinal cancer." The examiner also notes that the Veteran's private medical records reveal that he was a cigarette smoker (30 pack years) and had a long standing history of gastroesophageal reflux with endoscopically and biopsy proven Barret's esophagus. The examiner opines that the combination of these factors is well known to carry a higher risk for the development of esophageal cancer, even in the absence of any other potential carcinogens. Lastly, the examiner notes that none of his service connected disabilities would cause esophageal cancer and there is no medical evidence that any of his service connected conditions would materially contribute to his death in any fashion. Thus, the only evidence of record linking the Veteran's cancer to his herbicide exposure in service is the Appellant's statements. While the Appellant is competent to give lay testimony; her contentions that the Veteran's esophageal cancer is etiologically related to exposure to herbicides in service is not competent evidence of a relationship between the two. The Appellant is a lay person, and has not shown that she has the knowledge or medical expertise or experience to provide such opinion as to the diagnosis or etiology of a cancer as it would require oncological knowledge of various cancers, and interpretation of testing, laboratory work and biopsies. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The only competent evidence providing any type of etiology of the Veteran's cancer is from the VA examiner that states that the Veteran's smoking, GERD and Barret's esophagus may have contributed to his cancer. The Veteran's representative argued that other Board decisions have linked herbicides to esophageal cancer. To the extent other RO or Board decisions may have linked esophageal cancer to herbicides and granted the claims, other RO and Board decisions are not precedential and the undersigned is not bound by the determination of another Judge or adjudicator in another case for another Veteran based on other evidence. 38 C.F.R. § 20.1303. There can be no doubt that the Veteran rendered honorable and faithful service for which the Board is grateful, and the Appellant is sincere in her belief that his death was caused by his exposure to herbicides. While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. In the absence of any competent evidence linking the Veteran's diagnoses esophageal cancer to exposure to herbicides in service, the Board finds that service connection on a direct basis as due to herbicide exposure in service is not warranted. The Board has weighed the evidence of record, and finds the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; See Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants 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). The Board finds the requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In this case, the VCAA duty to notify was satisfied by way of the November 2009 letter. The Appellant was notified in November 2009 that the Veteran was not service connected for a cancer disability, and provided explanations of the evidence and information required to substantiate a claim based on a previously service- connected condition; as well as the evidence and information required to substantiate a claim based on a condition not yet service connected. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Appellant have also been obtained. The Appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2015). In the Board's May 2014 decision, it remanded the claim for a medical opinion. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The Veteran's medical file was reviewed by a VA examiner and an opinion with supporting rationale was provided in June 2014 as to the etiology of the Veteran's cancer which is adequate for the purposes of determining service connection. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The claim was then readjudicated by a November 2014 supplemental statement of the case. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs