Citation Nr: 1802094 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-16 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran had active duty service with the United States Army from June 1967 to May 1969, to include service in the Republic of Vietnam. The Veteran was a recipient of the Purple Heart Medal. The appellant is the Veteran's surviving spouse. The Veteran passed away on April 19, 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by a Department of Veterans Affairs (VA) Milwaukee Pension Management Center located at the Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction rests with the RO in Cleveland, Ohio. In her May 2012 substantive appeal, the appellant requested a hearing before the Board. In December 2016, the appellant withdrew her hearing request. FINDINGS OF FACT 1. The Veteran passed away in April 2011. The certificate of death lists the immediate cause of death as metastatic cancer of the pancreas. 2. During the Veteran's lifetime, service connection was established for the following disabilities: residuals of shell fragment wound of the left foot and left calf, with fractured foot, retained foreign bodies, and tender scars, rated as 20 percent disabling; residuals of shell fragment wound of the right calf with retained foreign body and scar, rated as 20 percent disabling; bilateral hearing loss, rated as noncompensable; and tinnitus, rated as noncompensable. 3. The Veteran's pancreatic cancer did not manifest in service or for many years thereafter and is not otherwise causally or etiologically related to his military service or a service-connected disorder. CONCLUSION OF LAW The requirements for establishing entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Appellant nor her representative has raised any 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). Law and Analysis The appellant asserts that the Veteran's pancreatic cancer was caused by his presumed exposure to Agent Orange. She also asserted that the retained fragments associated with Veteran's service-connected residuals of shell fragment wounds, were contaminated by Agent Orange. To establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In determining whether the disorder that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C.A. § 1310. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a). Veterans who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed 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). If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops one of the disease listed under 38 C.F.R. § 3.309 (e), to a compensable degree any time after such service, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The Veteran's personnel records documented his service in the Republic of Vietnam. Therefore, the Veteran is presumed to have been exposed to herbicides in service. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). The medical evidence of record includes a diagnosis of metastatic pancreatic cancer. As such, the Board finds the evidence does not reflect a diagnosis of a presumptive disease that results from exposure to herbicides. See 38 C.F.R. § 3.309 (e). Therefore, service connection for pancreatic cancer may not be granted on a presumptive basis. Nevertheless, when service connection cannot be granted on a presumptive basis, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board has reviewed all the evidence in the record. 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 detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for the cause of the Veteran's death. The Veteran's death certificate showed a date of death of April 19, 2011, and listed the immediate cause of death as metastatic cancer of the pancreas. No secondary disease or cause of death was noted on the death certificate. At the time of the Veteran's death, service connection was established for residuals of shell fragment wound of the left foot and left calf, with fractured foot, retained foreign bodies, and tender scars; residuals of shell fragment wound of the right calf with retained foreign body and scar; bilateral hearing loss; and tinnitus. There is no evidence of record showing that the Veteran's pancreatic cancer manifested during service or within one year of separation from service. The Veteran's May 1969 separation examination revealed a normal digestive system and endocrine system. Post-service medical records showed that the Veteran was diagnosed with metastatic cancer of the pancreas in May 2010, over 40 years following his separation from service. Accordingly, the Board finds that the cause of the Veteran's death, pancreatic cancer, did not manifest in service. In addition, the weight of the evidence of record does not otherwise link the Veteran's cause of death to service. The appellant asserted that the Veteran developed pancreatic cancer as a result of exposure to Agent Orange during his Vietnam service. She also stated that the Veteran's pancreatic cancer was caused by pieces of claymore that remained in his body after service. The medical evidence of record includes a July 2010 private medical opinion from J.F., M.D. Dr. F. opined that it could not be disproved that Agent Orange caused or was one of multiple causes of the Veteran's malignancy. Dr. F. further stated that given the carcinogenic effect of Agent Orange, that there was no way to say that Agent Orange did not cause the Veteran's cancer. The RO obtained VA medical opinions in August 2012. The first VA doctor noted that the Veteran sustained multiple fragment wounds during service, and that post-service x-rays showed retained fragments scattered throughout his legs. It was also noted that a May 2010 laparoscopy revealed multiple nodules on the liver and that he subsequently received systemic chemotherapy for metastatic pancreatic cancer. His social history indicated that he smoked one pack of cigarettes per day for 20 years and occasionally drank alcohol. The VA doctor included multiple scientific references. It was noted that pancreatic cancer was the fourth leading cause of cancer-related death in the United States. It was also rare in people under the age of 45, but the risk of developing the disease sharply increased thereafter. The VA doctor explained that pancreatic cancer was linked to cigarette smoking, an increased body mass index, occupational exposure to chemicals such as beta-naphthylamine and benzidine, and heavy alcohol consumption. Chronic pancreatitis was a risk factor for pancreatic cancer. Additionally, true familial pancreatic cancer was rare, but genetic predisposition may be present in up to 5-10 percent of patients. The VA doctor provided a medical opinion against the appellant's claim. The VA doctor stated that the Veteran sustained multiple fragment wounds of the lower extremities during service, but was diagnosed with metastatic pancreatic cancer 41 years later. There was no evidence to support a specific relationship between shell fragment wounds, including retained fragments, and pancreatic cancer. The second VA doctor also acknowledged that the Veteran suffered multiple shell fragment wounds to the lower extremities during service. It was noted that the appellant believed that the shell fragments were coated in Agent Orange, which ultimately caused the Veteran's pancreatic cancer. The VA doctor provided a negative opinion against the appellant's claim based on the lack of medical literature to support the appellant's contention. Based on reports from the Johns Hopkins Pancreatic Research Center, it was virtually impossible to determine what caused a specific person to develop pancreatic cancer. However, the known risk factors for pancreatic cancer included damaged DNA through heredity or mutation, smoking, and age of 50. The VA doctor concluded that it was possible that in any one case exposure to dioxin might result in various mutations, including those that might cause pancreatic cancer, however, the research for pancreatic cancer had not evolved yet to a place where it can be said that it was "at least as likely as not" that Agent Orange exposure was the primary cause of the cancer. Therefore, it was at least as likely as not that the Veteran's service-connected shell fragment wounds including retained fragments, either were the primary cause of his pancreatic cancer or that they aggravated the pancreatic cancer beyond normal progression. Based on the foregoing, the Board finds that the competent, credible, and probative evidence establishes that the Veteran's cause of death was not etiologically related to the Veteran's active service, to include as due to his presumed herbicide exposure. The overwhelming medical evidence supports the conclusion that the Veteran's pancreatic cancer was not related to service or to his service-connected residuals of shell fragment wounds. The Board affords limited probative value to the medical opinion provided by Dr. F. In particular, Dr. F. stated that he/she could not disprove that Agent Orange caused the Veteran's malignancy. The Board finds that the private medical opinion is speculative and is of limited probative value. Conversely, the Board finds that the VA medical opinions are highly probative. The VA doctors considered the appellant's statements, the Veteran's clinical and social history, and medical literature. The VA doctors also provided adequate rationale in support of the opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (a medical opinion must be supported by sufficient evidence and cannot necessarily rely solely on the claim file alone). The Board has also considered the appellant's assertions that the Veteran's cause of death is related to service, however, as a lay person, she is not competent to provide etiology opinions regarding this issue, as it is a complex medical determination based upon internal medical processes and is not capable of lay observation. The appellant has not contended otherwise, and the evidence does not show, that she has the medical expertise to provide such opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Based on the foregoing, the Board finds that a preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. In making this determination, the Board does not wish to convey any lack of sympathy for the appellant in this matter, nor for the unfortunate circumstances which resulted in the Veteran's death. Moreover, the Board does not doubt the sincerity of the appellant's contentions. That being said, the Board is bound by the laws and regulations governing the payment of benefits, which, in this case, do not support the award of benefits. (CONTINUED ON NEXT PAGE) ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs