Citation Nr: 1751426 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-31 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from February 1963 to February 1966, including service in the Republic of Vietnam. He died in August 2006. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction was subsequently transferred to the RO in St. Petersburg, Florida. This matter was most recently remanded by the Board in March 2015. A Supplemental Statement of the Case (SSOC) was issued in April 2016. The appellant was afforded a travel Board hearing before a Veterans Law Judge (VLJ) in August 2014. A transcript is of record. Upon notification that the VLJ who presided over such hearing was no longer with the Board, the appellant waived her right to a further hearing in correspondence received in November 2016. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. A review of the record shows that the RO has substantially complied with all remand instructions. The appellant and her representative have not contended otherwise. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era. 2. The Veteran was diagnosed as having esophageal cancer in 2005. 3. The Veteran died in August 2006. The cause of his death was esophageal cancer. 4. The Veteran's fatal esophageal cancer did not manifest during service or to a compensable degree within one year of his separation, and the disorder was not related to his active service or any incident therein, to include presumed exposure to Agent Orange, or to any service-connected disability. 5. A service-connected disability, to include residuals of fracture of the right great toe and residuals of fracture of the nasal bone, did not cause or contribute materially or substantially to the Veteran's death, combine with another disorder to cause his death, or aid or lend assistance to his death. CONCLUSION OF LAW The requirements for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107 (West 2014); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) In his October 2016 Informal Hearing Presentation, the appellant's representative contends that the March 2016 VA medical opinion is inadequate because (1) the examiner used the wrong standard of proof in stating that "there are no scientific studies that conclusively have proven that Agent Orange exposure causes esophageal cancer," and (2) the examiner only discussed Agent Orange rather than "herbicide agents." The Board finds that the March 2016 medical opinion is adequate because, as discussed below, it is based upon a thorough review of the medical evidence of record and is well-reasoned. With respect to the first argument, the Board notes that the examiner's conclusion is not based solely on the fact that "there are no scientific studies that conclusively have proven that Agent Orange exposure causes esophageal cancer." Rather, the examiner also explained that it is unclear what causes esophageal cancer and discusses known risk factors, including the Veteran's consumption of alcohol and post-service occupational exposure to possible carcinogens. The examiner also observed that the private medical opinion and the appellant's lay contentions do not take into consideration the Veteran's risk factors of alcohol consumption and possible occupational exposure to carcinogens. With respect to the second, the examiner specifically opined that it was less likely than not that the Veteran's esophageal cancer began in or was related to active service, "to include the presumed herbicide exposure therein." As discussed in greater detail below, esophageal cancer is not a disease for which presumptive service connection due to exposure to herbicide agents is warranted. See 38 C.F.R. § 3.309(e). Thus, service connection would have to be shown on a direct, secondary, or presumptive basis. There is no positive medical evidence of record which shows that the Veteran's esophageal cancer was due his active service, to exposure to herbicide agents, or other service-connected disabilities. Again, the examiner's opinion was not based solely on the fact that "there are no scientific studies that conclusively have proven that Agent Orange exposure causes esophageal cancer." Neither the appellant nor her representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Applicable Law A. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. B. Service Connection for Cause of Death Dependency and indemnity compensation (DIC) is awarded to the Veteran's surviving spouse for death resulting from a service-connected disability. 38 U.S.C. § 1310. To establish service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal (primary) cause of death when such 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). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). III. Analysis A. Evidence The appellant's death certificate states that he died in August 2006. His usual occupation was piping designer in the refinery industry, which had been his occupation for 40 years. The immediate cause of death was esophageal cancer. The time interval between onset and death was months. No underlying causes or significant conditions contributing to death, but not resulting in the underlying cause, were present. Service treatment records are negative for complaints of or treatment for esophageal problems, including cancer. An application for Social Security Administration (SSA) benefits, signed by the Veteran in May 2006, was received in August 2010. The Veteran stated that he had metastatic squamous cell carcinoma of the esophagus and a brain tumor which caused him to be unable to work. He began experiencing symptoms of weakness, fatigue, and trouble concentrating in September 2005, and became too disabled to work in March 2006. He reported that he worked as a piping designer for 38 years. An October 2010 letter from Dr. R.P. states that Dr. R.P. treated the Veteran for metastatic esophageal cancer and that the Veteran had involvement in his brain, bones, and lungs. As a result, the Veteran died in August 2006. Medical records from the Bakersfield Pathology Medical Group and the Comprehensive Blood and Cancer Center show treatment for such esophageal cancer. Such records indicate that the Veteran was first diagnosed with esophageal cancer in 2005. A December 2010 letter from Dr. E.H.E., a physician with a specialty in internal medicine, reviewed the Veteran's medical records. Dr. E.H.E. observed that the Veteran had squamous cell carcinoma of the esophagus. Because the appellant did not have Barrett's esophagus, Dr. E.H.E. opined that it was less likely that reflux was the etiology of such cancer. Dr. E.H.E. stated that he was unable to find evidence that tobacco and alcohol were problems for the Veteran. Dr. E.H.E. discussed the matter with an oncologist who explained that pulmonary cancers, some sarcomas, multiple myeloma, and lymphomas have been associated with Agent Orange, although squamous cell carcinoma of the esophagus has not. Dr. E.H.E. conceded that he was "a bit out of [his] league" because he is an internist with a sub-specialty in cardiology. He stated that he knew carcinogens commonly cause numerous problems, rather than simply one or two types of cancer. Dr. E.H.E.'s research led him to discover "surprising numbers" of veterans who served in Vietnam and had esophageal cancer, but he conceded that such numbers would need to be evaluated by a statistician to determine causation. Internet research regarding esophageal cancer and herbicide agent exposure was submitted, as was a copy of a Board decision which granted service connection for adenocarcinoma of the esophagus based on three positive nexus opinions. A Statement in Support of Claim was received from the appellant in January 2011. She stated that she believed the Veteran developed a "condition related to his health" upon his return from Vietnam. However, the Veteran did not think he was sick, so he never sought medical attention until he was terminal. She conceded that the Veteran died from metastatic esophageal cancer, but noted that the appellant was treated for brain, bone, and lung problems by Dr. R.P. She stated that she wished to have the Veteran's cause of death amended on his death certificate, but had been unsuccessful in doing so. She stated that the Veteran was diagnosed with squamous mucosa and peripheral blood, squamous cell carcinoma by the Bakersfield Pathology Medical Group. She stated that, following a September 2005 CT scan, the Veteran was found to have hepatic metastatic cancer of the liver. In October 2005, bony metastasis and metastatic brain cancer were noted by a physician. In her substantive appeal, received in November 2012, the appellant argued that brain tumors, ischemia of the heart, liver condition, bone and lung cancer, and esophageal cancer caused the Veteran's death. During her August 2014 travel Board hearing, the appellant testified that she believed that the Veteran died from esophagus and lung cancer, and cancer in other parts of the body. She stated that the Veteran was very healthy when they married, although he tired quickly and did not breathe well; however, he would be better the next day after exercise. She stated that a brother-in-law, who also served in Vietnam, had similar symptoms of the lungs, which she stated were due to exposure to Agent Orange. The Veteran's stepdaughter testified that she knew the Veteran since 2001. Although the Veteran was in his sixties, she stated that he looked younger because he was healthy. Over time, the stepdaughter observed the Veteran change, including by losing weight, becoming depressed, being unable to swallow, developing skin spots, experiencing seizures, feeling cold to the touch, and developing lumps in the back. She stated that she believed that the Veteran's problems swallowing were due to his cancer and lung problems, and the lumps were tumors. She stated that, while in Venezuela in 2006, the Veteran was hospitalized where the doctors found tumors in the lungs and brain, which were due to his cancer. The appellant's representative stated that there were indications in the medical records that there was lung involvement, although the representative was not sure if such lung involvement was metastasized cancer from the esophagus. The appellant testified that, the doctors were unsure where the cancer began because, when it was first discovered, it had already spread. She stated that cancer was found in the bones, lungs, brain, and kidneys. She testified that the Veteran was diagnosed with esophageal cancer because he had initially sought medical treatment for his swallowing problems, and that esophageal cancer was the cause of death on the death certificate because the Veteran's ex-wife still had power of attorney and told the person filling out the death certificate to put esophageal cancer as the cause of death because of the Veteran's trouble swallowing. She also stated that the Veteran's ex-wife was unaware of the fact that the Veteran had cancer elsewhere in the body when she made that decision. A VA medical opinion was obtained in March 2016. The claims file was reviewed. Dr. W.S. opined that it was at least as likely as not that the Veteran died from metastatic esophageal cancer. Dr. W.S. was noted that the Veteran's death certificate stated that he died in August 2006 from esophageal cancer. Dr. R.P. stated in October 2010 that the Veteran died of metastatic esophageal cancer with involvement in his brain, bones, and lungs. The Veteran was found to have invasive moderately differentiated squamous cell carcinoma in September 2005. Per an October 2005 clinical note, the Veteran was an active drinker of 8-10 glasses of wine or beer weekly, but was not a smoker. The Veteran was exposed to hazardous materials from his occupation as a piping designer for refineries including industrial toxins and petroleum products. It was noted that Dr. E.H.E. agreed with the appellant's theory that the Veteran's fatal cancer was caused by exposure to herbicide agents, although Dr. E.H.E. stated that the Veteran had squamous cell carcinoma of the esophagus. Based upon a review of all of the medical evidence of record, Dr. W.S. stated that there was no evidence of other independent malignancies at the time of the Veteran's death. Dr. W.S. observed that the medical evidence of record strongly indicated that the Veteran had metastatic esophageal cancer, without any other additional separate primary malignancies that caused his death. Although the appellant contends that the Veteran may have had other forms of cancer due to exposure to herbicide agents, there is no medical evidence that supports such a theory. Thus, Dr. W.S. opined that it was less likely than not that the Veteran's death was caused by his active service, to include exposure to herbicide agents. He explained that it was not clear what causes esophageal cancer, but it was noted that factors which can increase one's risk for such include drinking alcohol, bile reflux, difficulty swallowing due to achalasia, drinking very hot liquids, eating few fruits and vegetables, gastroesophageal reflux disease, obesity, Barrett's esophagus, radiation treatment, and smoking. Although the Veteran was service-connected for residuals of fracture of the right great toe and residuals of fracture of the nasal bone, there is no evidence, nor does the appellant contend, that such disabilities had any effect on the Veteran's death. B. Analysis After carefully reviewing the available evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death. As discussed above, the Veteran's death certificate indicates that he died in August 2006 from esophageal cancer. Both Dr. E.H.E. and Dr. W.S. concur. The Veteran's service treatment records are negative for pertinent complaints or abnormalities, including esophageal cancer. The post-service record on appeal shows that the Veteran was diagnosed as having esophageal cancer in 2005, which was nearly 40 years after his separation from service. There is also no probative evidence of record suggesting that the Veteran had esophageal cancer in service, within the first post-service year, or for many years thereafter. In addition, the record contains no indication that the Veteran's esophageal cancer was causally related to or aggravated by any service-connected disability, to include residuals of fracture of the right great toe and residuals of fracture of the nasal bone. Finally, although the Veteran is legally entitled to the presumption of herbicide agent exposure, the enumerated diseases which are deemed to be associated with herbicide agent exposure do not include esophageal cancer. See 38 C.F.R. § 3.309(e). VA's Secretary has determined that there is no positive association between exposure to herbicide agents such as Agent Orange and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). There is no medical evidence that the Veteran had esophageal cancer during his active service or within one year after separation. Thus, presumptive service connection is not for application. Because Dr. W.S.'s March 2016 medical opinion is well-reasoned, based upon a thorough review of the lay and medical evidence of record, and references the relevant evidence of record as well as the applicable medical literature, the Board finds that it is entitled to great probative weight. Dr. W.S. explained that, despite the appellant's lay contentions, there was no evidence of independent malignancies at the time of the Veteran's death in addition to metastasized esophageal cancer. Dr. W.S. also observed that there was no evidence which supported a conclusion that exposure to herbicide agents caused the Veteran's esophageal cancer. The Board finds that Dr. E.H.E.'s December 2010 medical opinion is entitled to less probative weight regarding whether the Veteran's death was due to his active service because Dr. E.H.E. himself concedes that he was "a bit out of [his] league" in expressing an opinion regarding whether the Veteran's esophageal cancer was caused by his active service, including exposure to herbicide agents. Dr. E.H.E. presented his conclusions in such a way that indicated that Dr. E.H.E. himself had little confidence in such. In fact, he did not opine that it was at least as likely as not, or more likely than not, that the Veteran's esophageal cancer was caused by his active service. Rather, he simply expressed the opinion that there was a possibility that such cancer may be related to exposure to herbicide agents without citing any medical evidence or clinical research. Further, although Dr. E.H.E. discovered that many Vietnam veterans have esophageal cancer, he stated that he could not use such circumstantial evidence to conclude that exposure to herbicide agents while in Vietnam caused such cancers. Although Dr. E.H.E. stated that he could not find evidence that alcohol was a problem for the Veteran, the medical evidence of record indicates that the Veteran regularly consumed alcohol. The Board offers no opinion as to whether 8-10 glasses of wine or beer per week would be considered a "problem" by Dr. E.H.E. However, Dr. W.S. noted such consumption of alcohol and explained that drinking alcohol can increase one's risk for esophageal cancer, while Dr. E.H.E. did not address whether the Veteran consumed any alcohol at all, despite reviewing the medical evidence of record. Thus, the Board finds that Dr. W.S.'s medical opinion is entitled to greater probative weight because it addresses a specific risk factor from the Veteran's prior medical history. A copy of a prior Board decision was submitted, in which entitlement to service connection was granted for adenocarcinoma of the esophagus, due to exposure to Agent Orange. Board decisions, however, are not precedential, and "previously issued Board decisions will be considered binding only with regard to the specific case decided." 38 C.F.R. § 20.1303. "Each case presented to the Board will be decided on the basis of the individual facts of the case." Id. Nonetheless, the Board has carefully reviewed such Board decision. It appears that this matter included numerous positive medical opinions regarding a link between the veteran's active service and adenocarcinoma of the esophagus, based on the specific facts of the case. In the case at hand, however, the only medical opinion which could be considered positive regarding whether the Veteran's esophageal cancer was caused by his active service is entitled to minimal probative weight, as discussed above. Further, adenocarcinoma of the esophagus is separate and distinct from this Veteran's squamous cell carcinoma of the esophagus. The Board has considered the appellant's and the Veteran's stepdaughter's lay histories of the Veteran's symptomatology and their beliefs as to the cause of the Veteran's cancer and death. They are competent to report such symptoms and observations because this requires only personal knowledge as such comes through an individual's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant and stepdaughter in this case are not competent to determine the cause of the Veteran's symptoms or death because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant or stepdaughter in this case, who have not been shown by the evidence of record to have medical training or skills. The Board finds the March 2016 VA medical opinion to be of greater probative weight than such lay assertions. In summary, the Board finds that the most probative evidence of record shows that a service-connected disability did not cause, contribute to, or hasten the Veteran's death. Although the Board recognizes the Veteran's honorable service on behalf of his country and is sympathetic with the appellant's loss of her husband, in light of the evidence discussed above, the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death. The Board is not permitted to engage in speculation as to medical causation issues but "must provide a medical basis other than its own substantiated conclusions to support its ultimate decision." Smith v. Brown, 8 Vet. App. 546, 553 (1996). Here, the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs