Citation Nr: 18149304 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-34 073 DATE: November 9, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in September 2013; and, according to the certificate of death, the immediate cause of death was squamous cell carcinoma of esophagus invasive into left bronchus. 2. Squamous cell carcinoma of esophagus did not manifest during service or within a year of service discharge and is not otherwise shown to be casually related to service, including the Veteran’s presumed exposure to Agent Orange. 3. The Veteran’s service connected arthritis of the spine and left ear hearing loss is not shown to have caused or substantially or materially contributed to his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 to December 1971 and from December 1971 to January 1993. The appellant is the Veteran’s surviving spouse. This matter comes before the Board from an January 2014 rating decision. The RO issued subsequent rating decisions requesting new and material evidence; however, the January 2014 rating decision never became final as the appellant continued to submit evidence. New and material evidence is not required. 1. Entitlement to service connection for the cause of the Veteran's death A veteran’s surviving spouse is eligible for dependency and indemnity (DIC) benefits when a qualifying veteran dies from a service-connected disability. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.5 (a) (2018). The service-connected disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a) (2017). It is the principal cause if it was “the immediate or underlying cause of death or was etiologically related” to the death. 38 C.F.R. § 3.312 (b). It is a contributory cause if it “contributed substantially or materially” to the cause of death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312 (c)(1). 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, 1131 (2012). Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including malignant tumors, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2018). Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on 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)(iii). Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established based on direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records (STRs) are silent as to complaints, treatment, or diagnosis of any esophageal disorder to include cancer of esophagus. There is also no evidence that the cancer was diagnosed within a year of service discharge. The diagnosis of cancer was established in 2013. Related treatment records note the Veteran’s report of symptoms beginning in February 2013. There is likewise no evidence establishing that the Veteran’s service connected arthritis of the lumbar spine (rated as 10 percent disabling) and/or left ear hearing loss (rated as non-compensable) caused or substantially or materially contributed to the Veteran’s death. The appellant does not contend otherwise. Rather, the appellant states that the Veteran’s squamous cell carcinoma of esophagus was caused by his in-service exposure to Agent Orange while in Vietnam. She maintains that the Veteran was more disposed to developing cancer because of his service, including exposure to Agent Orange. The appellant submitted medical documents detailing his treatment after he was diagnosed with squamous cell carcinoma of esophagus. These records do not provide a positive etiological opinion linking the Veteran’s cancer to exposure to Agent Orange. There is no medical evidence in the record indicating the Veteran’s squamous cell carcinoma of esophagus was caused by or otherwise related to service. Exposure to Agent Orange has been conceded. However, squamous cell carcinoma of esophagus is not a condition for which the Agent Orange presumption applies. In so finding, the Board notes that the 2006 Institute of Medicine (IOM) studies (hereinafter referred to as Update 2006) have been found by VA to be inadequate and/or insufficient to support an association between esophageal cancer and Agent Orange. In this regard, the Board notes that whenever the VA Secretary determines that a positive association exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he must publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary’s determination must be based on consideration of National Academy of Sciences (NAS) reports and all other sound medical and scientific information and analysis available to the Secretary. See 38 U.S.C. § 1116 (b)-(c). In July 2007, the NAS issued Update 2006. With respect to esophageal cancer, NAS found that no new data had emerged since Update 2004 to alter the conclusion that the cumulative evidence of such an association between esophageal cancer and Agent Orange is inadequate or insufficient. See 75 Fed. Reg. 32540, 32543 (June 8, 2010). As such, the Board does not agree with the argument set forth by the appellant. The Board has considered the Appellant’s contention that a relationship exists between the Veteran’s cause of death and his service, to include her belief that his fatal cancer, was incurred in service as a result of his in-service herbicide agent exposure. However, this case at hand is not the type of situation discussed in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) and a number of other related cases holding that lay evidence may be sufficient to establish this required nexus (i.e., link) between the Veteran’s military service and his disability and/or death. Although the appellant is competent to report her observations on the Veteran’s medical symptoms and discomfort during his lifetime, she is not competent to render a medical opinion addressing the etiology of his esophageal cancer, without evidence showing that she has medical training or expertise. See 38 C.F.R. § 3.159 (a)(1), (2). She does not meet any of the three exceptions for competent lay evidence as listed under Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). (CONTINED NEXT PAGE) Based on an extensive review of the record, the Board finds that the persuasive evidence of record demonstrates that the Veteran’s cause of death was not related to a service connected disability or his active service, including his exposure to Agent Orange in Vietnam. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Rekowski, Associate Counsel