Citation Nr: 1756494	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  14-07 900	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to 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 son




ATTORNEY FOR THE BOARD

Victoria A. Narducci, Associate Counsel


INTRODUCTION

The Veteran had active duty service in the United States Army from September 1967 to July 1970. Furthermore, the Veteran served in Vietnam from July 1968 to July 1969. Notably, he was awarded the Vietnam Service Medal, the Vietnam Campaign Medal, the Vietnam Cross of Gallantry with Palm, and the Army Commendation Medal. The Veteran died in February 2013. The Appellant is the Veteran's surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania (Agency of Original Jurisdiction (AOJ)).

The Appellant and her son testified at a video conference Board hearing before the undersigned in September 2016. A transcript of the proceeding is of record. 


FINDINGS OF FACT

1.  The Veteran died on February [REDACTED], 2013 from metastatic adenocarcinoma involving the lungs, liver, and pancreas. 

2. The Veteran is presumed to have been exposed to herbicide agents based on his service in the Republic of Vietnam from September 1967 to July 1970. 

3.  At the time of his death, the Veteran was not service-connected for any disabilities; however, he had filed for entitlement to service connection for the following disabilities in December 2012, just two months prior to his death: weakness and fatigue, stage four pancreatic cancer, sinus polyps, stage four lung cancer, stage four vertebrae cancer, stage four liver cancer, and diabetes mellitus. 

4.  Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's metastatic cancer which led to his death originated in his respiratory system.


CONCLUSION OF LAW

The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Criteria

The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. §3.312(a). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disease or 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). The 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). To find that the disease or 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. 38 C.F.R. § 3.312(c)(1). 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(c)(1). For service connection to be granted for the cause of the Veteran's death, the Appellant must show (1) a cause of the Veteran's death is (or should be) service-connected, or (2) a service-connected disability caused the Veteran's death. 

Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, and has one of the diseases enumerated under 38 C.F.R. § 3.309(e), to include certain cancers, that disease shall be service-connected (provided the requirements of 38 C.F.R. § 3.307(a)(6) have been met) even though there is no record of such disease during service. 38 U.S.C. §§1113, 1116; 38 C.F.R. §§ 3.307, 3.309. The diseases listed under 38 C.F.R. § 3.309(e) shall have become manifest to a degree of ten percent or more at any time after service, with some exceptions. 38 U.S.C. §§1116; 38 C.F.R. § 3.307(a)(6)(ii). Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 are 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 U.S.C. §§1116; 38 C.F.R. §§ 3.307(a)(6)(iii). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331,1335 (Fed. Cir. 2006).

II. Analysis

At the time of the Veteran's death, he was not service-connected for any disability. However, two months prior to his death, he had filed for service connection for weakness and fatigue, stage four pancreatic cancer, sinus polyps, stage four lung cancer, stage four vertebrae cancer, stage four liver cancer, and diabetes mellitus. See December 2012 VA 21-526 Veteran's Application for Compensation or Pension. The Appellant contends that the Veteran served in Vietnam while it was a "hot spot with Agent Orange," and stated she firmly believes her husband's disease started in his lungs from his year of exposure to the herbicide. See September 2016 Hearing Testimony. As the record suggests she has limited medical training, the Board does not find that she is competent to testify to this fact definitively. She testified, however, that Dr. M.B. indicated he felt that cancer as a result of Agent Orange was the primary cause of the Veteran's death. The Veteran's son testified that his father had respiratory issues, and that led the doctor to believe the cancer started in the Veteran's lungs. See September 2016 Hearing Testimony.  Both the Appellant and her son testified in the years preceding the Veteran's death that he suffered from respiratory issues such as shortness of breath and difficulty walking due to fatigue. See September 2016 Hearing Testimony.

The first prong of service connection requires a current diagnosis, meaning the Veteran was diagnosed with a disease or disability during the pendency of his claim. In November 2012, the Veteran was diagnosed with diabetes mellitus by Dr. M.B. See January 2013 Medical Treatment Record-Non-Government Facility. Concurrently, the Veteran was diagnosed with pancreatic cancer; his medical records reflect that he had a large tumor in his pancreas, two lesions on his liver, and three nodules in his lungs. See January 2013 Medical Treatment Record-Non-Government Facility. At the time, Dr. G.S. indicated that the lesions and nodules were consistent with metastatic pancreatic cancer. In January 2013, Dr. J.H. remarked that the Veteran had metastatic adenocarcinoma of the pancreas "to lung, bone, and liver." See November 2014 Medical Treatment Record-Non-Government Facility. Dr. M.B. was quick to note that the cancer's origin is unknown; however, the Veteran's medical records clearly note that the cancer was present in his pancreas, liver, and lungs. See November 2014 Medical Treatment Record-Non-Government Facility; see also January 2013 Medical Treatment Record-Non-Government Facility. For the purposes of satisfying prong one of service connection (a diagnosis), the Board finds that the Veteran had diabetes mellitus, as well as cancer of the pancreas, lungs, and liver. 

The second prong of service connection requires an in-service event. The Board must first determine whether there is presumptive service connection based on herbicide exposure, which entails determining whether or not the Veteran served in the Republic of Vietnam. The Veteran's DD-214 shows active service in Vietnam for one year from July 1968 to July 1969. The DD-214 also notes several medals he received from his time in Vietnam, most notably the Vietnam Cross of Gallantry with Palm. Based on his service in Vietnam during the specified time period, there is a presumption that he was exposed to herbicides. 38 U.S.C.A. §§ 1116; 38 C.F.R. §§ 3.307(a)(6)(iii). As such, the in-service event prong has been satisfied based on the Veteran's herbicide exposure. 

The third prong of service connection requires a finding of a nexus between the in-service event and the Veteran's disease/disability. Pursuant to 38 C.F.R. § 3.309(e), both diabetes mellitus and respiratory cancers (for example, cancer of the lung) are presumed to be service connected based on the Veteran's herbicide exposure. 38 C.F.R. § 3.309(e). However, in this case, the Veteran's diabetes mellitus did not contribute substantially or materially to his death. 

The dispositive issue concerns whether the Veteran metastatic cancer had its origin in his respiratory system as defined at 38 C.F.R. § 3.309(e) - cancer of the lung, bronchus, larynx, or trachea. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F. 3d. 1239 (Fed. Cir. 1997); writ of cert den. 522 U.S. 1151, 140 L Ed. 2d 181, 118 S. Ct. 1171 (1998) (presumptive service connection refers to primary cancer cite and not metastatic). See also DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1023 (28th ed. 1994) (defining metastasis as "the transfer of disease from one organ or part to another not directly connected with it. It may be due either to the transfer of pathogenic microorganisms . . . or to transfer of cells, as in malignant tumors." 

The Veteran's death certificate identifies that his immediate cause of death was due to adenocarcinoma of the lungs, liver, and pancreas, with Agent Orange exposure listed as a "significant condition contributing to death but not resulting in the underlying cause." See May 2013 Death Certificate. However, two medical opinions were provided in the evidence of record, one from Dr. M.B. and another from Dr. J.H. See November 2014 Medical Treatment Record-Non-Government Facility. Dr. M.B.'s opinion sets forth that the "origin of the cancer is unknown, but...it is as likely as not the cancer began in the patient's lungs based on [his] review of the Veteran's medical records, [his] examination of the Veteran, and [his] review of the diagnostic testing which also includes all available blood work." Dr. J.H. came to a similar conclusion; she stated that she "cannot rule out the possibility this was a primary lung adenocarcinoma metastatic to liver and bone and pancreas. [She] think[s] it is likely in view of his exposure to Agent Orange that this is an Agent Orange-induced malignancy." See November 2014 Medical Treatment Record-Non-Government Facility. 

The Board observes that Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Rather, the unique benefit of the doubt standard is a "recognition of [nation's] debt to our veterans,' has 'taken upon itself the risk of error' in awarding ... benefits.") Here, the record contains two opinions from medical professionals who, upon review of the relevant medical record, have opined that reasonable doubt exists as to whether the Veteran's primary tumor manifested in the respiratory system. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's metastatic cancer which led to his death originated in his respiratory system. 38 U.S.C. § 5107(b). As such, service connection for the cause of the Veteran's death is granted.


ORDER

Entitlement to service connection for cause of death is granted.




____________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs