Citation Nr: 20023098 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 15-03 046 DATE: April 3, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in June 2010. The immediate cause of death listed on his death certificate is metastatic nasopharyngeal cancer with significant contributing factor listed as hypertension. 2. At the time of the Veteran’s death, service connection was in effect for diabetes mellitus and erectile dysfunction. 3. The preponderance of the evidence is against a finding that a metastatic nasopharyngeal cancer or hypertension is attributable to service, or any incident of service; and metastatic nasopharyngeal cancer and hypertension are not diseases presumptively associated with exposure to herbicide agents under the applicable law. 4. A service-connected disability has not been shown to have either caused or contributed substantially or materially to the cause of the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from December 1968 to April 1970. The Veteran died in June 2010; the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant and her daughter testified before the undersigned Veterans Law Judge at a hearing in April 2019. A transcript of the hearing has been associated with the claims file. The appeal was remanded in August 2019 for further development. The Board observes that additional medical records were received following the last adjudication by the RO in the January 2020 supplemental statement of the case. However, as the appellant’s substantive appeal was received in December 2014, which is after February 2, 2013, an automatic waiver of evidence submitted by the claimant or his/her representative is presumed. Because the appellant submitted these records, a waiver of RO consideration is presumed. 1. Entitlement to service connection for the cause of the Veteran’s death is denied. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 C.F.R. § 3.5. Service connection for the cause of a veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the veteran’s death. 38 C.F.R. § 3.312. Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or primary, cause of death when such disability, 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). 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(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Certain diseases have been determined to be associated with the use of herbicides in Vietnam and VA regulations identify those diseases that are presumptively associated with herbicide exposure in Vietnam. 38 C.F.R. § 3.309(e). Metastatic nasopharyngeal cancer and hypertension are not diseases identified as presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). However, the statutory and regulatory provisions governing presumptive service connection for certain diseases deemed to be associated with herbicide exposure is a legal consideration rather than a medical consideration. The exclusion of a disability from the list of disabilities for which presumptive service may be assigned does not preclude service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board further notes that in the Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS) found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicide agents used during the Vietnam War. Hypertension has been upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. In this case, the Veteran’s primary cause of death was his metastatic nasopharyngeal cancer with significant contributing factor listed as hypertension. See June 2012 Death Certificate. The appellant argued that the Veteran’s metastatic nasopharyngeal cancer and hypertension manifested due to his presumed exposure to herbicide agents while stationed in Vietnam. See April 2019 Hearing Transcript. A review of the records shows that the Veteran was stationed in Vietnam and as such presumed exposure to herbicide agents is conceded. See January 2009 Military Personnel Record. The Veteran was service connected for diabetes mellitus and erectile dysfunction at the time of his death. Having carefully reviewed the evidence of record, the Board finds that the criteria for service connection for the cause of the Veteran’s death are not met. The Veteran died of metastatic nasopharyngeal cancer with hypertension as a contributory factor. The more persuasive evidence of record does not show that metastatic nasopharyngeal cancer and hypertension are attributable to exposure to herbicide agents in service, and metastatic nasopharyngeal cancer and hypertension are not diseases presumptively associated with exposure to herbicide agents under the applicable law. Turning to the medical evidence, the Board finds that there is no metastatic nasopharyngeal cancer or hypertension related in-service event, injury, or disease. A review of the service treatment records shows that the Veteran had normal mouth, throat, and neck with no diagnosis of high blood pressure and/or hypertension in the March 1968 entrance examination and March 1970 separation examination. See October 2007 STR – Medical. Thus, there was no showing of any hypertension or nasopharyngeal cancer during service. As for presumptive service connection based on exposure to herbicide agents, the Board concedes that the Veteran was exposed to herbicide agents as he was stationed in Vietnam. See January 2009 Military Personnel Record. However, the Board notes that metastatic nasopharyngeal cancer and hypertension are not recognized diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). As such, the Board finds that the appellant cannot avail herself under the theory of presumptive service connection based on exposure to herbicide agents. However, as the statutory and regulatory provisions governing presumptive service connection for certain diseases deemed to be associated with herbicide exposure is a legal consideration rather than a medical consideration, the Board remanded the issue on appeal in August 2019 in order to obtain a medical opinion as to whether the Veteran’s metastatic nasopharyngeal cancer and hypertension were a result of his exposure to herbicide agents. Pursuant to the August 2019 Board remand, in January 2020, a VA examiner opined that the Veteran’s metastatic nasopharyngeal cancer is less likely than not incurred in or was caused by the Veteran’s in-service exposure to herbicide agents as there is no documented diagnosis or symptoms in service. Further, there is no credible medical evidence to support that metastatic nasopharyngeal cancer is caused by agent orange or other herbicides. The examiner also opined that although the recent findings from Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS) concluded that there is a significant evidence to link hypertension to exposure to herbicide agents, it is less likely than not that the Veteran’s hypertension incurred in or was caused by the Veteran’s exposure to herbicide agents as hypertension is a multifactorial disease. While exposure to herbicide agents is a risk factor, there is insufficient medical evidence to conclude that it was the cause of the Veteran’s hypertension in 1988, about 18 years after service. In support of her claim, the appellant submitted multiple medical articles. However, even the articles show that although there may be a relationship between the Veteran’s metastatic nasopharyngeal cancer and hypertension to his exposure to herbicide agents, none state that herbicide agents cause nasopharyngeal cancer and hypertension. For instance, in the article Cancer Epidemiology, Biomarkers & Prevention, it was noted that occupational exposure to fumes, smoke, dust, or chemicals overall was associated with a two to six fold higher risk of nasopharyngeal cancer in some but not all studies. See March 2020 Correspondence. In fact, a few studies reported no association between solvents overall and risk of nasopharyngeal cancer and other studies observed no association with any occupational exposures examined. In the article Nasopharyngeal Cancer Mortality in a Cohort of Vietnam Veterans, the study found that there is a greater than expected frequency of nasopharyngeal cancer deaths among deceased veterans; but again, the study noted that a follow-up investigation was needed to see potential associations between nasopharyngeal cancer and herbicide agents. As such, in the light most favorable to the appellant, the studies indicate that further studies are required to show causation. Importantly, the appellant did not submit any medical opinion linking any such study to the Veteran’s individual case. In addition, the Board notes that the appellant submitted articles about posttraumatic stress disorder (PTSD) but finds that these articles are not pertinent as the Veteran is not service connected to PTSD or has any outstanding claim for PTSD. Based on the forgoing, the Board affords great probative value to the January 2020 examiner’s assessment as the examiner’s rationale was thorough with a full review of the medical records and death certificate. Importantly, the January 2020 VA examiner indicated that there were insufficient medical records available to conclude herbicide exposure was the cause of his hypertension. Despite the additional time to submit records to show a link between the Veteran’s metastatic nasopharyngeal cancer and hypertension to exposure to herbicide agents, the appellant did not submit any medical opinion to substantiate her claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant’s active participation in a claim for VA benefits). The Board notes that in May 2019 a physician responded to the appellant’s request for a medical opinion by stating that he is unable to comply with the request as they have little to no records of the Veteran’s metastatic nasopharyngeal cancer. See March 2020 Medical Treatment Record – Non-Government Facility. There is no record that the appellant tried to obtain another nexus opinion. As no post-service medical records substantiating such a relationship between service and his cause of death have been submitted, the Board finds that there is no positive nexus between the Veteran’s metastatic nasopharyngeal cancer and hypertension and his conceded exposure to herbicide agents. The Board has considered the appellant’s and third party statements and testimony that the Veteran’s metastatic nasopharyngeal cancer and hypertension were due to his exposure to herbicide agents. See March 2020 Correspondence and April 2019 Hearing Transcript. However, the Board finds that the appellant and her daughter are not competent to link the cause of the Veteran’s death to service or exposure to herbicide agents as they lack the requisite medical and technical expertise. As this is a medical matter, requiring medical training and expertise, the Board affords her and the third party statements little probative value. Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Board notes that the appellant has also submitted prior Board cases that granted service connection for nasopharyngeal cancer due to exposure to herbicide agents. See March 2020 BVA Decision records. Board decisions, however, are not precedential, and “previously issued Board decisions will be considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303. “Each case presented to the Board will be decided on the basis of the individual facts of the case.” Id. As such, the Board affords no probative value to the prior Board cases submitted by the appellant. Importantly, the Board finds it highly significant that the appellant has not submitted an opinion from a medical professional that uses the medical literature she cites in order to find that the Veteran’s nasopharyngeal cancer and hypertension are etiologically related to his exposure to herbicide agents. The record is also silent for any medical nexus opinion by a qualified physician stating such. The studies and articles submitted by the appellant in support of her claim are insufficient to establish the required medical nexus between the Veteran’s nasopharyngeal cancer and hypertension to exposure to herbicide agents. Accordingly, as no competent evidence has been provided that establishes a nexus between the Veteran’s presumed in-service exposure to herbicides and his metastatic nasopharyngeal cancer and hypertension, the claim for service connection for cause of death is denied. There is no doubt to resolve as the evidence is not in equipoise. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, Associate Counsel 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.