Citation Nr: 18155294 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-56 323 DATE: December 4, 2018 ORDER Service connection for esophageal cancer as due to toxic herbicide exposure is granted. Service connection for the Veteran’s cause of death as due to esophageal cancer, to include as due to toxic herbicide exposure, is granted. REMANDED Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s esophageal cancer is etiologically related to his exposure to toxic herbicides during his service in the Republic of Vietnam. 2. The Veteran died in May 2017 and his immediate cause of death was respiratory failure due to or as a consequence of metastatic esophageal cancer. 3. The Veteran’s esophageal cancer was an underlying cause of his death. CONCLUSIONS OF LAW 1. The criteria for service connection for esophageal cancer as due to toxic herbicide exposure have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for the Veteran’s cause of death as due to esophageal cancer, to include as due to toxic herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to August 1973, including service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal from April 2015 and August 2017 rating decisions by the Department of Veterans Affairs (VA). The Appellant is the Veteran’s surviving spouse. The current case was initially comprised of two different appeals. One appeal included the claim for service connection for esophageal cancer and a request for an increased rating for the Veteran’s service-connected PTSD. The other appeal stream is for service connection for the Veteran’s cause of death. In both appeal streams, there is a request for a hearing before the Board. However, the Board finds that it can grant the Veteran’s service connection and cause of death claims with the evidence of record. As a result, there is no prejudice to the Appellant in the denial of a hearing with respect to these two claims. In a February 2017 statement, approximately 2.5 months prior to the Veteran’s death, the Veteran’s representative filed a formal claim for entitlement to a TDIU. Therefore, the Board finds that the issue of a TDIU has been properly asserted and has captioned the issue as seen above. 1. Entitlement to service connection for esophageal cancer, to include as due to toxic herbicide exposure 2. Entitlement to service connection for the Veteran’s cause of death as due to esophageal cancer, to include as due to toxic herbicide exposure The Veteran asserted that his esophageal cancer was due to his exposure to toxic herbicides in the Republic of Vietnam. After the Veteran’s death, the Appellant filed a cause of death claim alleging that his death, which was caused by esophageal cancer, was due to his exposure to toxic herbicides. The Board agrees and concludes that service connection for esophageal cancer is warranted. The Board also finds that the Veteran’s esophageal cancer caused his death. 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. 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Notably, these were the key compounds found in the tactical herbicides used during that time, with “Agent Orange” being the most common. Service connection is warranted for a veteran who has been exposed to toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin’s disease, non-Hodgkin’s lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson’s disease, B-cell leukemias, respiratory cancers, and ischemic heart disease. 38 C.F.R. § 3.309(e). Initially, the Board concludes that service connection is warranted for the Veteran’s esophageal cancer. Military personnel records confirm that the Veteran served in the Republic of Vietnam. As a result, he is presumed to have been exposed to toxic herbicides during service. Despite the Veteran’s esophageal cancer not being a presumptively-related disease for toxic herbicide exposure, service connection is still appropriate. Two different physicians have opined in support of the service connection claim. In September 2014, a physician stated that it is very likely that the Veteran’s esophageal cancer is due to his exposure to Agent Orange during his three tours of service during the Vietnam War. The physician specifically noted that he did not have other diagnoses that are significant as a cause of his cancer. Additionally, in October 2016, an oncologist noted her discussion with the Veteran about his previous Agent Orange exposure and concluded that since it is a known carcinogen, it is the most likely cause of his esophageal cancer. The Board notes that there is no medical evidence opining against a link between the Veteran’s toxic herbicide exposure and his subsequent diagnosis of esophageal cancer. Therefore, the Board concludes that service connection for esophageal cancer is warranted as the opinions provide sufficient evidence to support a connection between the Veteran’s esophageal cancer and his toxic herbicide exposure during service. Cause of Death The Appellant has filed a claim asserting that the Veteran’s cause of death is due to his military service. In order to establish service connection for the cause of a veteran’s death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). 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; 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(c)(1). In this case, the Veteran’s death certificate reflects that he died in May 2017. His immediate cause of death was respiratory failure due to or as a consequence of metastatic esophageal cancer. Consequently, as the Board has specifically found that the Veteran’s esophageal cancer is etiologically related to his military service, and his esophageal cancer was an underlying cause of death listed in the death certificate, service connection for the cause of the Veteran’s death is warranted. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. In December 2016, VA received a substantive appeal, VA Form 9, indicating the desire for a Board hearing for the issue of entitlement to a higher initial rating for PTSD. Although there was some subsequent confusion about whether a hearing was desired or not, most notably in a February 2018 e-mail, the Appellant’s representative has subsequently clarified that a hearing was desired. As opposed to the service connection and cause of death claims, the Board cannot grant the maximum benefit for the Veteran’s increased rating claim. As a result, a Board hearing is required upon remand. 2. Entitlement to a TDIU is remanded. In a February 2017 statement, approximately 2.5 months prior to the Veteran’s death, the Veteran’s representative filed a formal claim for entitlement to a TDIU. As the Board has granted the claims for service connection and cause of death, the Board finds that the issue of a TDIU must be remanded to await the assigned ratings. Additionally, if granted, the increased rating claim may impact any decision respecting an award of a TDIU. After the above development and any additionally indicated development has been completed, the issue of entitlement to TDIU must also be adjudicated. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Appellant for a hearing for the issue of entitlement to an initial rating in excess of 30 percent for PTSD. 2. After the above development and any additionally indicated development has been completed, issue a rating decision adjudicating the issue of entitlement to a TDIU for purposes of accrued benefits. If entitlement to TDIU is denied, the Veteran must submit a timely notice of disagreement to this decision to begin the appeal process. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Borman, Associate Counsel