Citation Nr: 18148205 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 14-31 859A DATE: November 7, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT The probative evidence of record demonstrates that the Veteran died as a result of cardiopulmonary arrest due to metastatic squamous cell carcinoma from a primary location of the tonsil, and that a disability of service origin did not cause or contribute substantially or materially to his cause of death. CONCLUSION OF LAW The evidence does not establish that a service-connected disability caused or contributed materially or substantially to the Veteran’s death, nor that the cause of death is otherwise related to service. §§ 1110, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to January 1970 to include service in Vietnam. The Veteran died in February 2012, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, OK. The Appellant requested a videoconference hearing but failed to show up at two Board hearing dates. Service connection for cause of Veteran's death The Appellant asserts that the Veteran’s death was due to his exposure to herbicide agents while stationed in Vietnam. Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. 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. 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. Contributory cause of death is inherently one not related to the principal cause. In determining whether the 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 casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312. Service connection may be granted for a disability when it resulted from disease or injury incurred in or aggravated by active military, naval, or air 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). Service connection for certain chronic diseases, including malignant tumors is presumed if manifested to a degree of 10 percent or more within the first post service year. 38 C.F.R. §§ 3.307, 3.309. In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the evidence must show the following: (1) that the veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents listed 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). The list of diseases associated with exposure to certain herbicide agents includes respiratory cancers (cancer of the lung, bronchus, larynx, or trachea). 38 C.F.R. § 3.309(e). The Appellant asserts that Veteran’s cancer, which caused his death, was causally related to exposure to herbicide agents, particularly Agent Orange, during service. During the Veteran’s lifetime, service connection had been established for posttraumatic stress disorder (PTSD), gunshot wound through right shoulder with atrophy and loss of motion with residual scar, gunshot wound to the right chest with infection and hemathorax with residual scar, degenerative arthritis of the right shoulder, tinnitus, sand bilateral hearing loss. The Veteran’s death certificate shows he died due to metastatic squamous cell carcinoma. Treatment records reflect the primary cancer site was the tonsils. The Appellant does not contend, and the evidence does not show, that any already service-connected condition caused or contributed to the Veteran’s death. Rather, the Appellant contends that the Veteran’s tonsillar cancer (metastatic squamous cell carcinoma) was related to his in-service herbicide exposure in Vietnam. 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). However, tonsillar cancer, including cancers of the pharynx, are 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 tonsillar cancer. See 77 Fed. Reg. 47,924 (Aug. 10, 2012). Based on the law, the Appellant cannot benefit from this presumption, regardless of whether the Veteran was exposed to herbicides in service. Id. Therefore, there is no presumption of service connection based on herbicide exposure for the claimed tonsillar cancer. See 38 C.F.R. § 3.309(e); see also Notice, 75 Fed. Reg. 32540-03 (2010). Notwithstanding the foregoing, the 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 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). In this case, service treatment records are silent for complaints of, treatment for, and diagnosis of, tonsillar cancer or symptoms of tonsillar cancer. In addition, tonsillar cancer did not manifest within one year of service separation, or for many years thereafter. Further, there is no evidence apart from the Appellant’s contention, that links the Veteran’s tonsillar cancer to service or to herbicide exposure in Vietnam, and because she has not shown to possess the medical expertise to offer a probative opinion on the question of that nexus, her opinion is accorded no evidentiary weight. Here, the evidence does not show a disability for which service connection was in effect at the time of death caused or contributed to the Veteran’s death. His tonsil cancer is not among the disease for which service connection is presumed for those who were exposed to herbicide agents during service, and no probative evidence links the Veteran’s tonsillar cancer to herbicide exposure during service. Likewise, tonsil cancer was not shown in service or within the first post service year. In these circumstances, the greater weight of the evidence is against service connection for tonsil cancer, and therefore, service connection for the cause of the Veteran’s death is not warranted. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Jaigirdar, Associate Counsel