Citation Nr: 20021585 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 12-08 520 DATE: March 26, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to service connection for seizures, bleeding in the brain, and stroke, for substitution purposes, is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam from May 1970 to April 1971 and is presumed to have been exposed to herbicide agents. 2. The preponderance of the evidence is against finding that the Veteran’s esophageal cancer began during service or is otherwise related to service, to include his presumed exposure to herbicide agents and likely exposure to diesel fuel, chemicals for cleaning weapons and environmental hazards. 3. The Veteran died in August 2010, the immediate cause of his death as recorded on the death certificate is pneumonia due to or as a consequence of metastatic cancer of the esophagus. 4. At the time of his death, the Veteran was not service connected for any disability. 5. The Veteran’s seizures, bleeding in the brain, and stroke did not begin in service and were not otherwise caused by his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of death are not met. 38 U.S.C. §§ 1110, 1112, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.312. 2. The criteria for service connection for seizures, bleeding in the brain, and stroke are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.1000, 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1969 to September 1971 and December 1990 to July 1991, including service in the Republic of Vietnam from May 1970 to April 1971 and subsequently in Southwest Asia (Saudi Arabia). He died in August 2010. The Appellant, his widow, is the substituted claimant with respect to the claims he filed for seizures, bleeding in the brain and stroke. The Appellant presented testimony at a Board hearing before the undersigned Veterans Law Judge in December 2016; a transcript of the hearing is associated with the claims file. These matters were previously before the Board and were remanded in February 2013, to schedule the Appellant for a Board hearing, and May 2017, to obtain a medical advisory opinion (in addition, the May 2017 Board decision denied service connection for right knee ganglion cyst). The Board finds there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran 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”-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Cause of Death (Metastatic Esophageal Cancer) The Veteran died in August 2010. The immediate cause of his death as recorded on the death certificate is pneumonia due to or as a consequence of metastatic cancer of the esophagus. The Appellant claims the Veteran’s esophageal cancer was related to service, to include his exposure to herbicide agents, diesel fuel, chemicals for cleaning weapons and environmental hazards. See, e.g., December 2016 Board hearing transcript. The Veteran was a light weapons infantryman and light wheeled vehicle mechanic in Vietnam and Southwest Asia. As such, it is presumed his was exposed to Agent Orange during the time he served in Vietnam during the Vietnam Era and was likely exposed to diesel fuel, chemicals for cleaning weapons, and environmental hazards during his military service in Vietnam and Southwest Asia. Service connection for certain diseases, such as a malignant tumor, may be also be established on a presumptive basis by showing that it manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As a malignant tumor is considered to be chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a 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. 38 C.F.R. § 3.312(c)(1). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). At the time of his death, the Veteran was not service connected for any disabilities. The claims folder does not show or suggest the Veteran’s esophageal cancer had its onset in service or within one year from his service separation (and it is not claimed otherwise). Consequently, service connection for esophageal cancer on the basis that it became manifest in (and thus was incurred during) his service or on a presumptive basis (as chronic diseases under 38 U.S.C. § 1112; 38 C.F.R. § 3.309(a)) is not warranted. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. 38 C.F.R. § 1116(f). In the instant case, the Veteran was exposed to herbicide agents coincident with his service in the Republic of Vietnam from May 1970 to April 1971. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). However, esophageal cancer is not acknowledged to be presumptively related to herbicide exposure. Notwithstanding such presumption, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran was first diagnosed with esophageal cancer in November 2008, approximately 37 years after his Vietnam service and 17 years after his Persian Gulf service. July 2010 hospitalization records show the esophageal cancer had metastasized to his brain, bones and lungs and was productive of seizures, stroke and bleeding in the brain. While the Veteran and the Appellant have asserted their belief that the esophageal cancer (and related seizures, stroke and bleeding in the brain) was related to his exposure to herbicide agents in Vietnam, they are not competent to make such a determination, as it is a complex medical question that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran’s esophageal cancer, which contributed to his death, falls outside the realm of common knowledge of a lay person. Id. Accordingly, the opinions of the Veteran and his widow as to the etiology of his esophageal cancer is not competent medical evidence. In May 2018, after review of the Veteran’s medical history and relevant medical literature, a VA physician opined that it is less likely than not that the Veteran’s metastatic esophageal cancer was caused by any incident of service, including his exposure to Agent Orange, diesel fuel, chemicals for cleaning weapons and/or environmental hazards incident to service in Vietnam or Southwest Asia. The examiner explained that “[t]he Veteran was known to have Barrett’s esophagus. This was the likely cause of his esophageal cancer and the subsequent metastases to lung and brain and which then resulted in his death. Scientific literature does not reveal an increased risk of development of esophageal cancer with Agent Orange, diesel fuel, chemicals for cleaning weapons and environmental hazards incident to service in Vietnam or Southwest Asia.” The Board finds the May 2018 VA opinion is entitled to great probative weight. The examiner had access to the claims file, reviewed the Veteran’s medical history and provided a fully articulated opinion supported by a reasoned analysis. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). The VA examiner is a medical professional competent to offer the opinion, expressed familiarity with the Veteran’s medical history and the opinion is supported by adequate rationale that cites to supporting factual data and medical literature. The opinion is probative evidence in this matter and, in the absence of probative evidence to the contrary, persuasive. The Board acknowledges the appellant’s sincere belief that the Veteran’s cause of death was etiologically related to his military service. However, there is no competent evidence that links the cause of the Veteran’s death, metastatic esophageal cancer, to a disability, injury or event shown to have begun in service, including exposure to Agent Orange, diesel fuel, chemicals for cleaning weapons and/or environmental hazards incident to service in Vietnam or Southwest Asia. The Board emphasizes that it is sympathetic to the Appellant and is grateful for the Veteran’s honorable service. However, the preponderance of the evidence is against the claim, the benefit of-the-doubt doctrine does not apply, and the claim for service connection for cause of death must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Seizures, Bleeding in the Brain and Stroke It is not in dispute that the Veteran had seizures, bleeding in the brain, and stroke prior to his death. See, e.g., July 2010 private treatment records. Although it is presumed the Veteran was exposed to herbicide agents and was likely exposed to diesel fuel, chemicals for cleaning weapons and environmental hazards during his Vietnam and Southwest Asia service; his service treatment records are silent as to complaints or treatment referable to seizures, bleeding in the brain or stroke (and it is not claimed otherwise). Rather, it is argued that the Veteran’s seizures, bleeding in the brain and stroke are the result of his Agent Orange related esophageal cancer. See, e.g., December 2016 Board hearing transcript. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The only medical opinion as to this matter is the opinion of the May 2018 VA examiner that, “[g]iven that the cause of his stroke, seizures and brain bleed were due to esophageal cancer metastases and given that it is less likely than not that esophageal cancer was caused by any incident of service to include exposure to Agent Orange, diesel fuel, chemicals for cleaning weapons and/or environmental hazards incident to service in Vietnam or Southwest Asia, then it is less likely than not that stroke, seizures and a brain bleed were related to his service, to include exposure Agent Orange, diesel fuel, chemicals for cleaning weapons, and environmental hazards.” The opinion reflects familiarity with the record and the Veteran’s medical history, and includes rationale that cites to supporting factual data. It is probative evidence in this matter, and, in the absence of competent evidence to the contrary, persuasive. As decided above, there is no competent evidence that links metastatic esophageal cancer (the cause of the Veteran’s death) to a disability, injury or event shown to have begun in service, including exposure to Agent Orange, diesel fuel, chemicals for cleaning weapons and/or environmental hazards incident to service in Vietnam or Southwest Asia. Accordingly, although the Board is sympathetic to the Appellant and is grateful for the Veteran’s honorable service, as service connection for esophageal cancer is denied herein, the claim of service connection for seizures, bleeding in the brain, and stroke secondary to esophageal cancer lacks legal merit. The benefit-of-the-doubt doctrine is, therefore, not for application and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Hughes The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.