Citation Nr: 18160227 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 15-11 488 DATE: December 26, 2018 ORDER Entitlement to service connection for the Veteran’s cause of death is denied. FINDING OF FACT 1. The Veteran died in February 2009. The Veteran’s certificate of death lists the immediate cause of death as metastatic pancreatic adeno carcinoma. No other cause of death is listed. 2. At the time of the Veteran’s death, the Veteran was not service-connected for any disability. 4. The Veteran was presumptively exposed to herbicide agents during active service. 5. The Veteran’s cause of death is not presumptively related to herbicide agent exposure during active service. 6. The weight of the evidence shows that the Veteran died of metastatic pancreatic adeno carcinoma. 7. The Veteran’s cause of death is not etiologically related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1131, 1310 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from October 1965 to April 1966, and from April 1967 to June 1970. The Veteran died in February 2009. The Appellant is the Veteran’s surviving spouse, who successfully substituted as Appellant on his claim for entitlement to service connection for pancreatic cancer pending at the time of the Veteran’s death. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied entitlement to service connection for the Veteran’s cause of death. Jurisdiction over the claim was subsequently transferred to the VA RO in San Francisco, California. In August 2016, the Board referred the matter for a Veterans Health Administration (VHA) expert medical opinion, which was obtained in August 2018 and associated with the record. Neither the Appellant nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Entitlement to service connection for the Veteran’s cause of death. Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran’s death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303 (d) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Pancreatic adeno carcinoma, and claimed lung cancer, are not “chronic diseases” listed under 38 C.F.R. § 3.309 (a); therefore, the provisions of 38 C.F.R. § 3.303(b) do not apply in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116 (f) (2012); 38 C.F.R. § 3.307 (a)(6)(iii) (2017). “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). To establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin’s lymphoma, soft tissue sarcoma, Hodgkin’s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson’s disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309 (e) (2017). Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. Id. at note 3. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii) (2017). VA regulations specify that the last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). VA’s Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a) (2017). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b) (2017). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312 (c) (2017). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154 (a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102, 4.3 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Within a May 2012 notice of disagreement, the Appellant contends that service connection for the Veteran’s cause of death should be granted under one of two theories. First, she contends that the Veteran died of pancreatic cancer, which was directly caused by his exposure to herbicide agents while in Vietnam, despite pancreatic cancer not being listed as a presumed chronic disease under 38 C.F.R. § 3.309(e). In the alternative, the Appellant contends that the Veteran had lung cancer due to his conceded exposure to herbicide agents, which contributed substantially and materially to his death. As an initial matter, the Board notes that the Veteran’s certificate of death shows that the Veteran died in February 2009. The certificate of death lists the immediate cause of death as metastatic pancreatic adeno carcinoma. No other cause of death is listed. Upon his death, the Veteran did not have a service-connected disability. Upon review of all the evidence, the Board finds that the Veteran was presumptively exposed to herbicide agents during the Vietnam Era. The Veteran’s DD Form 214 shows that the Veteran was awarded the Vietnam Service Medal, Vietnam Campaign Medal with device, and Combat Action Medal. Additionally, military personnel records show the Veteran participated in operations in Danang area in the Republic of Vietnam from March 1969 to April 1970. While the Veteran was presumptively exposed to herbicide agents during active service, the Board finds, and the Appellant concedes, that metastatic pancreatic adeno carcinoma is not a disease listed within 38 C.F.R. § 3.309(e) for which presumption of service connection based on exposure to herbicides is warranted. Rather, the Appellant contends that the Veteran’s cause of death was by lung cancer, thus warranting presumptive service connection for the Veteran’s cause of death as due to his conceded exposure to herbicide agents. Additionally, and in the alternative, the Appellant claims that service connection should be granted on a direct basis for the Veteran’s cause of death by metastatic pancreatic adeno carcinoma. Upon review of all the evidence, lay and medical, the Board finds that the Veteran did not have diagnosed lung cancer at the time of his death, and that the Veteran’s cause of death is not etiologically related to service. As previously discussed, the Veteran’s certificate of death shows that the Veteran died in February 2009, with the immediate cause of death listed as metastatic pancreatic adeno carcinoma. The Veteran’s certificate of death is signed by Dr. K.G. Service treatment records do not contain treatment, complaints or a diagnosis of metastatic pancreatic adeno carcinoma or lung cancer. VA treatment records include a diagnosis of pancreatic cancer in April 2005 status post Whipple procedure. A March 2006 CT scan showed findings highly suspicious for pancreatic adenocarcinoma, and the Veteran had undergone a biopsy procedure of a pancreatic head tumor. In a November 2006 letter, the Veteran’s private physician, Dr. D.M., opined that the Veteran’s recently diagnosed pancreatic cancer should be classified as a service related disease, because it was well known that exposure to Agent Orange induces a variety of cancers. The private physician opined that pancreatic cancer is most likely not on the list (of presumed diseases related to exposure to Agent Orange) because it reflects the low incidence and poor prognosis of this cancer, most likely resulting in too little data accumulated on this cancer. In a November 2007 statement, the Veteran indicated that he was diagnosed with lung cancer as of November 2007. VA treatment records from November 2007 show that the Veteran had lung lesions and that it was likely that his cancer was metastatic to his lungs. Treatment notes later that month show the Veteran’s pancreatic adenocarcinoma status-post Whipple procedure increased in size and in number of lung nodules, and that the Veteran was beginning chemotherapy. A January 2008 letter from the Veteran’s private physician, Dr. K.G., shows that the Veteran’s diagnosed pancreatic cancer has progressed to his lungs and he was receiving salvage chemotherapy. The private physician opined that it was highly possible that this cancer was caused by exposure to Agent Orange. A statement received in February 2008 from the Veteran shows that the Veteran claimed pancreatic cancer was the primary cancer, and that lung cancer is secondary to his pancreatic cancer. A March 2009 letter from private physician Dr. K.G. shows that the Veteran, after his diagnosis of pancreatic cancer, had developed enlarging lung nodules, which were not biopsied and were due to cancer to the lungs. The private physician opined that the Veteran eventually died of his pancreas cancer and cancer in the lungs. In a March 2010 letter from private physician Dr. K.G., she opined that it was very unusual for pancreatic cancer to metastasize to the lungs, and stated that it was just as likely for lung cancer to have been the second primary cancer. The private physician indicated that the Veteran died of progressive cancer in the lungs, and that the lesions in his lungs were not biopsied, as it would not have changed the prognosis or treatment. The private physician opined that it was just as likely for the Veteran to have died from lung cancer as the primary cancer. A January 2011 VA medical opinion shows that the VA examiner reviewed the Veteran’s claims file, and responded to Dr. K.G.’s March 2010 letter, indicating her statement that “it is very unusual for pancreatic cancer to metastasize to the lungs” is not supported by review of the medical literature. The VA examiner stated that The American College of Physicians guide to staging of pancreatic cancer lists “metastatic disease (typically to liver and peritoneum and occasionally to the lung)” and that the statistical likelihood of spread of pancreatic cancer to the lung is much greater than the statistical likelihood of an individual developing a de novo cancer of the lung. The VA examiner pointed out that Dr. K.G. signed the Veteran’s death certificate and her subsequent letter is contradictory to the official signed death certificate. In conclusion, the VA examiner indicated there is no evidence to support the Veteran’s death was due to a primary lung cancer, and that there is substantial evidence and medical literature to support that this Veteran’s death was due to metastatic pancreatic adeno carcinoma. Within an August 2018 VHA medical opinion, the VA oncologist indicated that the Veteran was diagnosed with stage IIB adenocarcinoma of the pancreas in April 2006, status post Whipple procedure, and was treated with adjuvant chemo and radiation, consistent with guidelines. On a February 2008 follow up CT scan, the Veteran was noted to have numerous pulmonary nodules, scattered throughout both lungs. The VA oncologist opined that this time frame, from initial diagnosis and CT findings, are consistent with metastatic pancreatic cancer without a doubt. Prior to this, the Veteran did not have a history of lung carcinoma, and the Veteran’s death in February 2009 is consistent with stage IV metastatic pancreatic cancer. The VA oncologist stated that agent orange/herbicide exposure in Vietnam might be related to many medical conditions, and some cancer, but pancreatic cancer is not one of them. Upon review of the above evidence, lay and medical, the Board finds that the Veteran did not have diagnosed lung cancer at the time of his death in February 2009. While private physician Dr. K.G. opined within March 2009 and March 2010 letters that the Veteran had died of progressive cancer in the lungs, the Board finds these opinions inconsistent with Dr. K.G’s prior opinions in a January 2008 letter, in which Dr. K.G. opined that the Veteran’s diagnosed pancreatic cancer had progressed to his lungs, and within the Veteran’s certificate of death itself, in which Dr. K.G. opined the Veteran’s immediate cause of death was by metastatic pancreatic adeno carcinoma, listing no other contributory causes of death. The Board, therefore, finds Dr. K.G.’s March 2009 and March 2010 medical opinions to have diminished probative value. See generally Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider…inconsistent statements, internal inconsistency, consistency with other evidence of record...). Within the March 2010 letter, Dr. K.G. reasoned that it was unusual for pancreatic cancer to metastasize to the lungs and making it was just as likely for lung cancer to have been the second primary cancer. However, a January 2011 VA examiner noted that The American College of Physicians guide to staging of pancreatic cancer lists “metastatic disease (typically to liver and peritoneum and occasionally to the lung)” and that the statistical likelihood of spread of pancreatic cancer to the lung is much greater than the statistical likelihood of an individual developing a de novo cancer of the lung. The January 2011 VA examiner concluded, upon review of the Veteran’s claims file, that there was no evidence to support the Veteran’s death was due to a primary lung cancer, and that there is substantial evidence and medical literature to support that the Veteran’s death was due to metastatic pancreatic adeno carcinoma. An August 2018 VA oncologist also opined that the Veteran’s medical treatment prior to his death, including chemotherapy for diagnosed stage IIB adenocarcinoma of the pancreas and CT scans showing numerous pulmonary nodules scattered throughout both lungs, were consistent with metastatic pancreatic cancer, without a doubt. The Board finds probative the January 2011 and August 2018 VA medical opinions of record, which were based on a review of the Veteran’s entire claims file, including specific consideration of Dr. K.G.’s March 2010 letter, and cited to relevant medical literature in rendering an opinion as to the Veteran’s cause of death. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (medical opinion probative when based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data). In finding Dr. K.G.’s March 2009 and March 2010 medical opinions to have diminished probative value, the Board finds that the weight of the evidence shows that the Veteran died of metastatic pancreatic adeno carcinoma, as listed on his February 2009 certificate of death, and not by lung cancer. Insomuch as the Appellant contends that the Veteran had diagnosed lung cancer at the time of his death, the Board finds that she is not competent to opine as to the diagnosis of the Veteran’s cancer, as she lacks the medical training and expertise to provide a complex medical opinion. Jandreau v. Nicholson, 492 F.3d 1372, (Fed. Cir. 2007). (Continued on the next page)   Upon review of the evidence, lay and medical, the Board finds that the Veteran’s cause of death is not etiologically related to active service. Service treatment records do not show treatment, complaints or a diagnosis of metastatic pancreatic adeno carcinoma, and the Veteran was first diagnosed with metastatic pancreatic adeno carcinoma in 2005, many years after service separation. Private medical opinions of record include a November 2006 letter, in which Dr. D.M. indicates that the Veteran’s diagnosed pancreatic cancer should be classified as a service related disease, because it was well known that exposure to Agent Orange induces a variety of cancers. A January 2008 letter from Dr. K.G. includes an opinion that it was highly possible that the Veteran’s pancreatic cancer was caused by exposure to Agent Orange. The Board finds that the November 2006 and January 2008 private medical opinions did not provide supporting rationale and do not provide the required degree of medical certainty for VA rating purposes. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (holding that equivocal opinions have limited probative value). Therefore, the Board affords limited probative value to these opinions. The Board finds probative the August 2018 VA medical opinion in which the VA oncologist unequivocally opined that while herbicide exposure in Vietnam might be related to many medical conditions, and some cancer, pancreatic cancer is not one of them. Therefore, the Board finds that the weight of the evidence shows that the Veteran’s cause of death was not etiologically related to service. Accordingly, the Board finds that the weight of the evidence is against the Appellant’s claim for service connection for the cause of the Veteran’s death. Because the preponderance of the evidence is against the claim, the claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel