Citation Nr: 1800916 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 12-23 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION Appellant is the surviving spouse of a veteran, hereinafter referred to as the Veteran, who had active service from June 1969 to June 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. A claim for DIC benefits based on service connection for the cause of the Veteran's death was received in September 2010. The Board remanded the issue on appeal for further development in December 2014. In August 2015, the Board denied DIC based on service connection for the cause of the Veteran's death. The appellant appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In an April 2017 Memorandum Decision, the Court vacated the August 2015 Board decision on the basis that the Board did not consider whether any of the Veteran's service-connected disabilities, to include diabetes mellitus, contributed to death by affecting vital organs such that the Veteran was materially less capable of resisting the effects of esophageal cancer (listed on the death certificate as the cause of death). FINDINGS OF FACT 1. The Veteran died in September 2010. 2. The immediate cause of death listed on the death certificate was end stage esophageal cancer. 3. The Veteran had confirmed duty in the Republic of Vietnam during the Vietnam era, so is presumed to have been exposed to herbicide agents in service. 4. The Veteran served at Camp Lejeune in 1970. 5. The cause of the Veteran's death, specifically esophageal cancer, is causally related to in-service exposure to herbicide agents and exposure to contaminants in the water supply at Camp Lejeune. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159. The Board is granting service connection for the cause of the Veteran's death, constituting a full grant of the benefit sought on appeal. As there remains no aspect of the claim to be further substantiated, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. Any discussion with regard to compliance with the previous Board remand instructions is also rendered moot. Service Connection for Cause of Death Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability 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 casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312; Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). 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). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the cause of the Veteran's death was end stage esophageal cancer. Malignant tumors are listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in service symptoms and "continuous" post-service symptoms apply. As adjudicated below, the Board is granting service connection for the cause of the Veteran's death based on direct service connection under 38 C.F.R. § 3.303(d); therefore, additional service connection theories of presumptive service connection based on chronic manifestations in service or continuity of symptomatology since service (38 C.F.R. §§ 3.303(b), 3.309(a)), and a chronic disease that became manifest to a compensable degree within a year after service separation (38 C.F.R. §§ 3.307, 3.309) are rendered moot, and there remain no questions of law or fact as to the fully granted issue. For this reason, these additional theories of entitlement will not be further discussed. See 38 U.S.C. § 7104 (2012) (stating that the Board decides "questions" of law or fact). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service, the veteran must show the following: (1) that he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he or she currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at Camp Lejeune from August 1, 1953 to December 31, 1987. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. 82 Fed. Reg. 4173 (Jan. 13, 2017). In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a veteran, former reservist, or member of the National Guard must show the following: (1) that he or she served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the current disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). The appellant, the Veteran's surviving spouse, seeks service connection for the cause of the Veteran's death. Specifically, the appellant asserts that during service the Veteran was exposed to herbicide agents, specifically Agent Orange, which caused the Veteran's death. In the March 2012 notice of disagreement, the appellant contended that the Veteran's cancer was not just in the esophagus, but also in the liver, lymph nodes, and pelvis. The appellant contended that the Veteran's long history of medical problems, posttraumatic stress disorder (PTSD) (for which the Veteran was service-connected during his lifetime), and cancer are attributable to exposure to Agent Orange during service. In the August 2012 substantive appeal (on a VA Form 9), the appellant contended that cancer does not appear overnight and can take over 20 years to manifest in the body. The appellant contended that the medical records do not show the Veteran being treated for esophageal cancer until May 2010 because it was not affecting his life until that point. The appellant contended that the Veteran's herbicide exposure during service in Vietnam contributed to his death. Alternatively, the appellant contended that the Veteran's (service-connected) diabetes mellitus type II, PTSD, depression, and peripheral neuropathy could have hastened the esophageal cancer due to the multiple medications prescribed to the Veteran. First, the evidence of record reflects that the Veteran died in September 2010. The cause of death was listed as end stage esophageal cancer. See September 2010 death certificate. The Veteran was not service connected for an esophageal or throat disorder, to include esophageal cancer, at the time of death. At the time of the Veteran's death, service connection had been established for PTSD, diabetes mellitus type II with diabetic retinopathy and cataracts, and diabetic polyneuropathy of both upper and lower extremities. Next, the Veteran served in the Republic of Vietnam during the Vietnam Era; therefore, he is presumed to have been exposed to herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The service personnel records indicate that the Veteran had foreign service in Vietnam during the Vietnam Era. Further, the DD Form 214 reflects that the Veteran had served at Camp Lejeune in 1970. If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. Esophageal cancer is not on the presumptive list of diseases associated with herbicide exposure. 38 C.F.R. § 3.309(e). Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, the VA Secretary has determined that a presumption of service connection is not warranted for any disease not affirmatively named in the presumptive list, including esophageal cancer. See 77 Fed. Reg. 47,924 (Aug. 10, 2012). Based on the law, the Veteran cannot benefit from this presumption, regardless of whether he was exposed to herbicides in service. Id. Esophageal cancer is also not included on the list of diseases associated with exposure to contaminants in the water supply at Camp Lejeune under 38 C.F.R. § 3.309(f). Based on the law, the Veteran cannot benefit from this presumption, regardless of whether he was exposed to contaminants in the water supply at Camp Lejeune during service. Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection for esophageal cancer due to herbicide exposure with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for claimed residuals of exposure to herbicides may also be established by showing that a disorder is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997). Similarly, service connection for claimed residuals of exposure to contaminated water at Camp Lejeune during service may also be established by showing that a disorder is, in fact, causally linked to such exposure. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the cause of the Veteran's death, specifically esophageal cancer, is causally related to in-service exposure to herbicide agents and exposure to contaminants in the water supply at Camp Lejeune during service. The evidence weighing against the claim includes an April 2015 VA medical opinion report. The April 2015 VA examiner noted that the death certificate documents that the Veteran died in September 2010 of end stage esophageal cancer with no other causes of death noted on the death certificate. The VA examiner opined that there is no scientific-based evidence to indicate that Agent Orange caused or contributed to the development of the Veteran's esophageal cancer. The evidence weighing in favor of the claim includes an October 2017 private medical opinion report by Dr. V.C. opining that it is at least as likely as not that the Veteran's adenocarcinoma of the gastro-esophageal junction (esophageal cancer) was caused by exposure to toxicants during service, specifically exposure to herbicide agents during service in Vietnam and contaminated water while stationed at Camp Lejeune. Dr. V.C. noted that the Veteran was a former smoker with a 30 pack year history but, according to the National Cancer Institute, smoking and heavy alcohol consumption increased the risk of squamous cell carcinoma of the esophagus, but did not increase the risk of adenocarcinoma (the type of esophageal cancer diagnosed in the Veteran). See also January 2012 VA treatment record (summarizing the course of treatment prior to the Veteran's death in September 2010). Dr. V.C. noted that Agent Orange is a "cancer promoter" causing dysplastic or de-differentiated cells to grow more rapidly. Dr. V.C. opined that, given the epidemiologic and toxicological evidence (discussed at length in the October 2017 private medical opinion report), it can be opined that TCDD (Tetrachlorodiben-zodioxin - a tactical herbicide agent) causes many cancers in many locations including the esophagus. Dr. V.C. further noted that, while esophageal cancer is not one of the medical disorders for which presumptive service connection is warranted based on exposure to contaminated water at Camp Lejeune, it is one of the cancers that the National Research Council found to have limited or suggestive evidence of association with said exposure. Esophageal cancer is specifically associated with exposure to Trichloroethylene (TCE). While finding it unclear whether the Veteran spent enough time at Camp Lejeune to be sufficient in and of itself to cause esophageal cancer, Dr. V.C. opined that the overwhelming evidence regarding the associated of Agent Orange and esophageal cancer combined with the Veteran's even brief exposure to the contaminants in the Camp Lejeune drinking water during the same time period put him at a greatly increased risk of developing esophageal cancer from these exposures. The Board finds the October 2017 private medical opinion probative evidence that the cause of the Veteran's death was related to active service, to include in-service exposure to herbicide agents and contaminated water supply at Camp Lejeune. Dr. V.C. had the requisite medical expertise to render a medical opinion regarding the etiology of the cause of the Veteran's death and had sufficient and accurate facts, factual assumptions, and data on which to base the conclusions. Based on the above, the Board finds that the weight of the evidence is at least in equipoise as to whether the cause of the Veteran's death - esophageal cancer - was related to in-service exposure to herbicide agents and exposure to contaminants in the water supply at Camp Lejeune. Resolving reasonable doubt in the appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER DIC based on service connection for the cause of the Veteran's death is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs