Citation Nr: 18148757 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-33 855 DATE: November 8, 2018 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in April 2012; the cause of death was squamous cell carcinoma of the head and neck. 2. At the time of his death, the Veteran was not service connected for any disabilities. 3. The Veteran’s death was not caused by a service-related disease or disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force from May 1965 to February1986. He died in April 2012. The appellant is his surviving spouse. This matter is on appeal from a September 2014 rating decision. In August 2018, the Board remanded the appellant’s claim for additional development, including a VA medical opinion discussed below. The Agency of original jurisdiction (AOJ) substantially complied with the August 2018 remand directives, and no further development is necessary. Cause of Death The Veteran died in April 2012, and his death certificate lists the cause of his death as squamous cell carcinoma of the head and neck. The appellant asserts that the Veteran’s squamous cell carcinoma of the head and neck was related to his in-service exposure to herbicide agents which ultimately resulted in his death. Specifically, she notes that he was diagnosed with squamous cell cancer of the right parapharyngeal area with lymph node involvement, which should be considered a respiratory cancer and presumptively service connected to his in-service exposure to Agent Orange. 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 either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310. A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a refutable presumption of service incurrence, if manifested to the required degree within a prescribed period from the Veteran’s separation from active duty; or one that is proximately due to or the result of, or aggravated by, a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309, 3.310(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related to the cause of death. A 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, or 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. Here, it is undisputed that the Veteran’s immediate cause of death was squamous cell carcinoma of the head and neck. However, service connection for the cause of the Veteran’s death requires more than just a showing that he had squamous cell carcinoma of the head and neck. Rather, it must be shown that squamous cell carcinoma of the head and neck was either directly or presumptively linked to his time in active service or the result of a service-connected disability. At time of death, the Veteran was not service-connected for any disabilities. Based on the evidence of record, the Board finds that a service-connected disability was not the principal cause of death. Nevertheless, as noted, the appellant has argued that the Veteran’s presumed exposure to herbicide agents while serving in the Republic of Vietnam caused the squamous cell carcinoma which caused his death. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a Veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran’s DD Form 214, certificate of release or discharge from service, documents his service in the Republic of Vietnam. Accordingly, he was presumed to have been exposed to herbicide agents, including Agent Orange, in service. The Veteran’s death certificate indicates that his immediate cause of death was squamous cell carcinoma of the head and neck. Under 38C.F.R.§3.309, presumptive service connection is warranted for diseases associated with exposure to certain herbicide agents. However, parapharyngeal cancer (squamous cell carcinoma of the head and neck) is not listed in 38C.F.R.§3.309(e). The appellant has argued that the Veteran’s cause of death by squamous cell carcinoma of the head and neck should be considered a respiratory disability which is listed as diseases associated with exposure to Agent Orange. However, under 38C.F.R.§3.309, (e), the respiratory conditions are limited to cancer of the lung, bronchus, larynx, or trachea. Squamous cell carcinoma is simply not listed, and VA regulations limit presumptive service connection to conditions expressly approved by the Secretary of VA. This does not end the analysis, as even if a Veteran is not entitled to presumptive service connection for a disability as due to herbicide exposure, service connection on a direct basis also must be considered. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To this end, the appellant submitted a February 2014 statement from Dr. Manfredi indicating that the Veteran was diagnosed with stage III/IV head and neck cancer of the squamous cell variety with the parapharyngeal area being the primary and lymph node involvement on the right side. Dr. Manfredi wrote that the Veteran’s cancer “could be related to his exposure to Agent Orange”, but added that he had no further details on the Veteran’s stay in Vietnam. While this opinion suggests the possibility of a connection between the Veteran’s presumed exposure to herbicide agents and his squamous cell carcinoma, “could be” in the context of a medical opinion is the same as “could not be” and therefore cannot provide the requisite nexus. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Board recognized that Dr. Manfredi’s statement was too equivocal to support a grant of service connection, but found that it did trigger the duty to obtain a VA medical opinion. In August 2018, the Board remanded the appellant’s claim for an opinion regarding the nature and etiology of the Veteran’s squamous cell cancer of the right parapharyngeal area with lymph node involvement, to include whether it was directly related to the Veteran’s conceded in-service exposure to herbicide agents including Agent Orange. In September 2018 a VA examiner reviewed the Veteran’s claim’s file to include all medical records, the death certificate, which noted that the Veteran was 67 years old at time of death in April 2012, and that squamous cell cancer of the head and neck as to cause of death. The examiner reported that no other contributory conditions were noted on the Veteran’s death certificate. The VA examiner reviewed the February 2014 private opinion of Dr. Manfredi indicating that the Veteran’s diagnosis “could be related to his exposure to Agent Orange.” However, the examiner noted that the opinion was not supported by any rationale or citation to medical evidence or literature. Moreover, the statement did not address or rule out the Veteran’s smoking history or alcohol consumption, both of which were included among the risk factors that are most frequently associated with the cancer the Veteran had. The VA examiner opined that the Veteran’s diagnosed squamous cell cancer of the right parapharyngeal area with lymph node involvement was less likely than not related to his active military service, to include his presumed exposure to herbicide agents (Agent Orange) while serving in the Republic of Vietnam. He explained that tobacco smoking and alcohol consumption are noted risk factors in the development of head and neck cancer, as noted in evidence based medical literature ie, Up-To-Date: Epidemiology and risk factors for head and neck cancer. The VA examiner observed that the Veteran had a history of smoking one pack per day for 45 years and alcohol consumption noted as 15 beers per week for the last 30 to 40 years. The examiner determined that although the February 2014 statement from Dr. Manfredi indicated that the Veteran’s diagnosis “could be related to his exposure to Agent Orange”, there was no supporting evidence nor rationale presented. The examiner reported that the medical evidence reviewed did not support Dr. Manfredi’s opinion. The VA examiner also noted that the Veteran’s conditions of the parapharyngeal space is not an area noted as a presumptive condition for a nexus for service connection for the Veteran’s exposure to Agent Orange. While the Board may not ignore a medical opinion, it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases; rather, it is the Board’s duty to assess the credibility and probative value of evidence, and, provided that it supplies an adequate statement of its reasons or bases, it may assign greater probative weight to one medical opinion than to another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Here, there are medical opinions provided by multiple medical professionals. However, as explained above, the VA examiner’s opinion contained a well-reasoned rationale that was grounded in the medical literature and the specific facts of the Veteran’s situation. Conversely, the opinion from Dr. Manfredi lacked any meaningful rationale. As such, the VA examiner’s opinion is found significantly more probative. It is acknowledged that the appellant cited to a prior Board decision. However, decisions by the Board are nonprecedential in nature, as each case presented to the Board must be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. That is, the facts of each specific case must be evaluated in light of the evidence presented in that case. The same is true here. A medical opinion was obtained to assess the etiology of the Veteran’s squamous cell carcinoma, but the opinion ultimately found that based on the particular circumstances of the Veteran’s case, that it was less likely than not that the Veteran’s cancer either began during or was otherwise caused by his military service, to include as a result of any exposures therein. The Veteran died in April 2012. His death certificate lists the cause of his death as squamous cell carcinoma of the head and neck. At the time of his death, the Veteran was not service connected for any disabilities. As such, he was not service connected for squamous cell carcinoma of the head and neck and the weight of the evidence is against a finding that the Veteran’s squamous cell carcinoma of the head and neck began during his active service or related to his presumed exposure to Agent Orange during service. Consequently, it is not shown that the squamous cell carcinoma of the head and neck that caused the Veteran’s death was causally linked to his active service. Consideration has been given to the assertions of appellant that the Veteran’s squamous cell carcinoma of the head and neck was due to his active service. She is clearly competent to report the Veteran’s symptoms of squamous cell carcinoma of the head and neck that are observable through the use of her senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while the appellant may describe symptoms of squamous cell carcinoma of the head and neck, she lacks the medical training or qualification either to diagnose the Veteran with squamous cell carcinoma of the head and neck or to determine its etiology. Id. The Board would like to express that it is extremely sympathetic toward the appellant’s claim and is deeply appreciative of the Veteran’s military service, including his service during the Vietnam Era. However, based on the evidence of record, a service-connected disability was not the principal cause of death and service connection on a direct or presumptive basis is not supported by the weight of the evidence. Accordingly, the claim for service connection for the cause of the Veteran’s death is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel