Citation Nr: 18143525 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 16-19 584A DATE: October 23, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in November 2013; the immediate cause of death listed on the death certificate is septic shock due to gastric perforation; esophageal cancer status post esophagectomy is listed as a significant condition contributing to death but not resulting in the underlying cause. 2. At the time of the Veteran’s death, service connection was in effect for prostate cancer, tinnitus, and erectile dysfunction. 3. The disabilities for which service connection was in effect during the Veteran’s lifetime did not cause his cause of death, nor did they otherwise play a material causal role in the Veteran’s death. 4. The Veteran’s fatal septic shock due to gastric perforation, and esophageal cancer status post esophagectomy was not present during service or for many years afterward, and was not etiologically related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been satisfied. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1953 to August 1975. The Veteran died in November 2013, and the appellant is his surviving spouse. In November 2017, the appellant and her daughter testified at a videoconference hearing at the Regional Office (RO) before the undersigned Veterans Law Judge. In April 2018, the Board remanded this matter for further development. 1. Entitlement to service connection for the cause of the Veteran's death The appellant contends that the Veteran’s esophageal cancer, which contributed to the cause of death, was due to herbicide agents exposure in service. She alternatively contended that his service-connected prostate cancer caused or contributed to his death. To prevail on the issue of entitlement to service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred or aggravated by service caused or contributed substantially or materially to cause the Veteran’s death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A death certificate shows that the Veteran died in November 2013, and that the immediate cause of death was listed as septic shock due to gastric perforation; esophageal cancer status post esophagectomy was listed as a significant condition contributing to death, but not resulting in the underlying cause. Because the Veteran served in the Republic of Vietnam during the Vietnam era, his exposure to herbicide agents therein is presumed. Although esophageal cancer is not among the diseases subject to presumptive service connection on the basis of exposure to herbicide agents, service connection may still be established with proof of direct causation. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The record reflects that the Veteran was diagnosed with esophageal cancer in 1989 and underwent an esophagectomy in 1990. He was diagnosed with prostate cancer in July 2010, and treated with Lupron followed by radiation therapy. Service connection was granted for prostate cancer based on presumed herbicide agents exposure. The questions for the Board are whether the Veteran’s esophageal cancer was related to his exposure to herbicide agents in service, or whether his service-connected prostate cancer caused or contributed to his death, and in that regard, the record contains conflicting medical opinions. As explained below, however, the preponderance of the competent evidence of record weighs against finding that esophageal cancer was due to herbicide agents exposure, and also weighs against finding that his prostate cancer caused or contributed to his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In that regard, in a VA medical opinion obtained in April 2016, the VA examiner noted that the Veteran had been last seen in August 2012, and at that time he had no symptoms related to his past esophageal cancer, but was being treated for active prostate cancer, status post XRT with Lupron injections. The examiner opined that the Veteran’s service-connected conditions did not contribute to his death, noting he died from septic shock due to a gastric perforation caused or predisposed by his previous esophageal cancer status-post esophagectomy/XRT/Chemo that had most likely weakened his esophagus. The examiner indicated that none of the Veteran’s service-connected conditions were known to cause esophageal cancer or predispose one to develop gastric perforation. The examiner opined that treatments for the service-connected conditions did not contribute to his death, noting XRT and Lupron treatments for prostate cancer were not known to cause esophageal cancer or predispose one to develop gastric perforation, and that no debilitating effects and general impairment of health were known to occur from XRT and Lupron treatments for prostate cancer. The examiner also found that service treatment records did not reveal any other diagnosis which would have contributed to his death. Finally, the examiner opined that the Veteran’s herbicide agents exposure did not cause or contribute to his esophageal cancer, noting that herbicide agents exposure was not known to cause esophageal cancer or predispose one to develop gastric perforation citing to a medical study by the Institute of Medicine. The appellant submitted a medical opinion from a private clinical consultant pharmacist, R.S., D.Ph., ASCP, dated in January 2018. In the letter, Dr. S., indicated he had been asked to research exposure to Agent Orange as related to the Veteran’s esophageal cancer. Dr. S. noted review of the following study: Agent Orange Exposure and Cancer Incidence in Korean Vietnam Veterans: A Prospective Cohort Study, as well as an Board decision for another Veteran. Dr. S. also cited to lifestyle and risk factors related to esophageal cancer, from the Mayo Clinic and the Cancer Treatment Centers of America. In asking the appellant about the Veteran’s life style, she related that the Veteran did not use alcohol or tobacco, and to her knowledge he had no history of gastroesophageal reflux disease (GERD). Dr. S. indicated it was important that the Veteran did not live a lifestyle that predisposed him to possible esophageal cancer, noting that the appellant stated he did not have any related symptoms or diagnosis, as related to the risk factors, for development of esophageal cancer. Dr. S. opined that with the elimination of the associated risk factors related to esophageal cancer, “[o]ne could conclude that the Veteran’s exposure to Agent Orange and its documented cariogenic ingredient dioxin was the cause of his esophageal cancer”. In the April 2018 remand, the Board found Dr. S.’s opinion to be speculative, and noted that the cited study did not appear to support his opinion, as one of the conclusions was that Agent Orange exposure was found to non-significantly increase the risk of esophageal cancer. In an August 2018 VA DBQ (disability benefits questionnaire) report, a VA physician opined that the Veteran's herbicide agents exposure did not cause or contribute to his death. For rationale, the VA physician noted that although the death certificate noted a perforation of his stomach, the terminal hospital records did not show a stomach perforation occurred that would have been related to esophageal cancer or its treatment 23 years prior. The VA physician also observed that although in the March 2018 letter, Dr. S. noted the Veteran’s wife indicated he did not use tobacco, medical records clearly documented he was a cigarette smoker in the past, and further cited recent medical literature which showed that cigarette smoking was a well-established risk factor for adenocarcinoma of the esophagus. The VA physician also noted that the medical article submitted by Dr. S reported no statistically significant increase in esophageal cancer in 180,000 Veterans with previous Agent Orange exposure, and that the National Academy of Sciences, in Veterans and Agent Orange - Update 2014, determined there was not sufficient evidence of an association between Agent Orange and esophageal cancer. In reviewing the VA physician’s opinions in 2016 and 2018, the Board finds them to probative and persuasive, because they are definitive and based on an accurate medical history, and are supported by provide supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As noted above, Dr. S.’s opinion is based on an inaccurate medical history, as the record shows that the Veteran did have a history of smoking, which is one of the risk factors for esophageal cancer, and Dr. S. cited to a study which did not support the opinion. Additionally, prior Board decisions do not serve as precedent as claims for VA benefits are decided on the individual facts of each case. Thus, the Board gives more probative weight to the VA examiner’s opinions. In summary, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran’s death. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Casula, Counsel