Citation Nr: 20043383 Decision Date: 06/26/20 Archive Date: 06/26/20 DOCKET NO. 16-54 012 DATE: June 26, 2020 ORDER Service connection for the cause of the Veteran’s death is denied. Service connection for gastric cancer, for the purpose of entitlement to accrued benefits, is denied. FINDINGS OF FACT 1. The Veteran died in September 2011; his death certificate listed esophageal cancer as the immediate cause of death, and tobacco use as contributing to death. 2. At the time of his death, the Veteran was not service-connected for any disabilities, including esophageal cancer or any tobacco related disabilities. 3. At the time of the Veteran’s death a claim for service connection for gastric cancer was pending. 4. The appellant is the Veteran’s surviving spouse. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 2. The criteria for service connection for gastric cancer, for the purpose of entitlement to accrued benefits, have not been met. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.160, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1969 to August 1971, to include service in the Republic of Vietnam. He died in September 2011. The appellant is his surviving spouse. In September 2017, the Board denied service connection for the cause of the Veteran’s death and service connection for gastric cancer. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In August 2018, CAVC issued an order vacating the September 2017 Board decision and remanded the issues for readjudication consistent with the Joint Motion for Remand (JMR), which found that the Board had not provided an adequate statement of reasons or bases for its finding that VA’s duty to assist had been satisfied without a VA medical nexus opinion having been obtained. In September 2019, the Board remanded the issues to obtain a medical opinion in accordance with the JMR from CAVC. Service Connection for Cause of Death To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability was incurred in or aggravated by service, and either caused or contributed substantially or materially to cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related to the cause of death. 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. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). The appellant asserts that the Veteran’s cause of death is related to his military service, specifically that his exposure to herbicides while serving in Vietnam caused his esophageal cancer and ultimately caused his death. The Veteran died in September 2011. His death certificate listed esophageal cancer as the immediate cause of death, and noted that tobacco use contributed to death. No other primary or contributory causes are listed on the Veteran’s death certificate or identified in treatment records. The Veteran was not service-connected for any disabilities at the time of his death, to include esophageal cancer or any tobacco related disorders. The Board notes that the record reflects that the Veteran served in the Republic of Vietnam, and as such he is presumed to have been exposed to herbicide agents while in service. However, esophageal cancer and tobacco related disorders, are not diseases listed for presumptive service connection due to exposure to herbicides such as Agent Orange. 38 C.F.R. § 3.309(e). A review of the Veteran’s service treatment records (STRs) does not reflect the Veteran to have been diagnosed with esophageal cancer, or any tobacco related disabilities during his military service. Nor do they reflect any complaints or treatments that may be construed to be related to esophageal cancer, or any tobacco related disabilities during his military service. A review of the Veteran’s treatment records reflects that the Veteran received notification in August 2010, after having taken part in VA’s Agent Orange Registry, that certain abnormalities were found in his lab work. He was recommended to follow up with his primary care provider. The Veteran underwent an esophagogastroduodenoscopy (EGD) with biopsy on October 26, 2010. The findings from the gastric mass biopsy were positive for invasive adenocarcinoma, and the Veteran was diagnosed with gastric cancer. Two statements were submitted from the Veteran’s physicians. One dated November 18, 2010, reported that the Veteran had been recently diagnosed with gastric cancer, and was currently in the process of being evaluated to initiate treatment. The other statement dated April 20, 2011 reported that the Veteran was being treated for metastatic esophageal cancer. On September 18, 2011 the Veteran was taken to the emergency room, because he had become uncomfortable under respiratory distress due to an inability to receive his pain medication. He was admitted for purposes of comfort and adequate pain control. The Veteran was made comfortable and on September 19, 2011 he passed away. Final discharge diagnoses were noted for 1. End stage metastatic esophageal cancer, 2. Chronic obstructive pulmonary disease exacerbation, 3. History of tobacco abuse, and 4. Anasarca. A VA medical opinion was rendered in April 2020, in which the examiner reported that a review of the Veteran’s STRS showed no treatment for symptoms or diagnosis of esophageal cancer. It was noted that the Veteran’s medical treatment records reflected that the onset of the Veteran’s condition was in 2010 with three months of symptoms reported and a diagnosis rendered in October 2010. The examiner reported that on October 26, 2010 the Veteran underwent an EGD after about three months of odynophagia to pills and 30 pounds of weight loss. The procedure showed a three-centimeter mass at the gastro-esophageal junction extending into gastric cardia. The biopsy showed moderately differentiated adenocarcinoma. The Veteran was diagnosed with stage IV esophageal adenocarcinoma. The examiner noted that a review of the Veteran’s medical treatment records reflected the Veteran to have a history of chronic smoking and a history of past alcohol use. A primary care follow-up note from November 2010, noted the Veteran’s assessment as gastric cancer, chronic tobacco use, and alcohol recovery since 2008. A notation from December 2010, which reflected the Veteran’s EGD findings also noted a social history reported by the Veteran of tobacco use at one pack per day for 45 years, and former heavy alcohol use, but no use of alcohol for the prior two years. The examiner found that medical literature provided evidence to support that smoking and alcohol consumption are risk factors for esophageal cancer. Thus, the examiner found that the Veteran’s esophageal cancer was less likely than not (less than 50 percent probability) incurred in or caused by his active military service, to include as a result of his presumed exposure to herbicide agents while serving in Vietnam. The appellant submitted two statements in April 2012, in which she reported that the Veteran had tested positive for Agent Orange in August 2010, and was thereafter recommended to follow up with his primary care provider. About six weeks later the Veteran was told that he had cancer. She reported that after having testing done the Veteran was found to have esophageal cancer, which had spread to his stomach and liver. She noted that the Veteran had two brothers who had also served in Vietnam, one who had served in an area heavily sprayed with Agent Orange, and one who had not. She reported that the Veteran’s brother who had served in the heavily sprayed area also had esophageal cancer and had been service-connected for it. She noted that the Veteran’s brother had also passed away from his esophageal cancer. She also reported that the one brother who had not served in a heavily sprayed area of Vietnam was alive and in good health, meaning without cancer. The Board regrets the prevalence of esophageal cancer in the appellant’s family. Unfortunately, Board decisions are only binding to the specific case decided, and that non-mutual collateral estoppel generally does not apply to the government. See 38 C.F.R. § 20.1303; United States v. Mendoza, 464 U.S. 154, 104 S. Ct. 568 (1984). The United States Court of Appeals for Veterans Claims (Court) has suggested that prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case. However, here, no evidence has been presented showing why the Veteran’s case is akin to his brother'-in-law’s case, aside from the fact that they both served in Vietnam. Ultimately, the Board did obtain a medical opinion to address the relevance, if any, of the Veteran’s presumed herbicide exposure in his development of esophageal cancer. In a Notice of Disagreement (NOD) submitted by the appellant in August 2012, the appellant noted that according to the list of diseases associated with Agent Orange from VA, respiratory cancers are presumptive due to Agent Orange/herbicide exposure. Therefore, she believed that the death of the Veteran should be service-connected due to his exposure to Agent Orange. In addition, she sent in a list of diseases that are considered to be presumptive for service connection due to exposure to Agent Orange, which appears to have come from VA’s website. In the appellant’s Form 9 Appeal to the Board in June 2013, she noted that she had intended to submit an article from the VFW magazine that showed the VA reversed the decision concerning esophageal cancer, however she had found other evidence to submit. She reported that she had found emergency room documentation showing that the Veteran had secondary malignant neo lung cancer, malignant neo esophagus NOS, digestive malignancy with CC, and obstructive chronic bronchitis with acute exacerbations. She stated that the secondary malignant neo lung cancer was presumptive to Agent Orange. In a statement submitted in September 2015, the appellant stated that she had an autopsy report from September 26, 2011, that stated the Veteran was suffering from malignant neo lung cancer. However, presumptive service connection refers to primary cancer cite and not where a cancer metastasized to. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996). Here, it is shown that the primary origin of the cancer was esophageal and not the lungs. At the hearing before the Board in October 2016, the appellant testified that the Veteran’s cancer started in his esophagus and then spread to the cardia section of his stomach. The appellant’s representative noted that the Veteran served in Vietnam, and that while they realized that esophageal cancer was not on the presumptive list for herbicide exposure, it was the belief that the Veteran’s esophageal cancer was the result of herbicide exposure. As to the question of whether any doctor had ever suggested that there might be a link between the Veteran’s exposure to herbicides and his esophageal cancer, the appellant’s daughter reported “yeah.” However, the appellant was unsure if an opinion linking the two had ever been offered, and the representative could not recall such an opinion in the record. The Board acknowledges the appellant’s lay statements, along with her sincere belief that the Veteran died of a service-related condition. However, the appellant, as a lay person without specialized training, knowledge, or experience, has not been shown possess the requisite expertise to render etiological opinions concerning complex medical questions such as the etiology of esophageal cancer. See Jandreau v. Nicholson, 492. F.3d 1372 (Fed. Cir. 2001). In addition, the record reflects that the appellant was sent multiple letters requesting additional evidence from the appellant as recent as March 2020, which included a request for any opinions from the Veteran’s treating physician’s linking herbicide exposure to the Veteran’s cause of death. No medical opinions linking the Veteran’s esophageal cancer to his military service, to include exposure to herbicides while serving in Vietnam, have been associated with his record. As such, the evidence does not show that the Veteran’s esophageal cancer, or any tobacco related diseases were incurred in or caused by his active military service. Nor does it show that the Veteran’s esophageal cancer, or any tobacco related diseases manifested to a compensable degree within one year of the Veteran’s discharge from active military service. Accordingly, the criteria for service connection for the cause of the Veteran’s death have not been met, and the appellant’s claim is denied. Accrued Benefits The appellant seeks to continue the Veteran’s claim for service connection for gastric cancer that was pending at the time of his death, for the purpose of accrued benefits. Periodic monetary benefits under laws administered by VA, to which an individual was entitled to at the time of death under existing ratings or decisions, or those based on evidence in the file at the time of death and due and unpaid, shall, upon the death of such individual be paid as follows: Upon the death of a Veteran to the living person first listed below: (A) The Veteran’s spouse; (B) The Veteran’s children (in equal shares); (C) The Veteran’s dependent parents (in equal shares). Upon the death of the spouse or in the case of a remarried surviving spouse, to the children of the deceased Veteran. In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of the last sickness and burial. 38 U.S.C. § 5121(a)(2), (3), (5); 38 C.F.R. § 3.1000(a). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121(c). For a surviving spouse to be entitled to accrued benefits, “the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision.” Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 19998); The term “pending claim” means a claim which has not been finally adjudicated. 38 C.F.R.§3.160(c). The term “finally adjudicated claim” means a claim that has been adjudicated by VA as either allowed or disallowed, and has either become final by the expiration of one year after the date of notice of an award or disallowance, or has become final by disposition on appellate review, whichever occurs first. 38 C.F.R.§3.160(d). The Veteran filed a claim for service connection for gastric cancer in December 2010, which was denied by an April 2011 rating decision. As previously noted, the Veteran passed away in September 2011. As such, a claim was pending at the time of his death. The appellant, the Veteran’s surviving spouse, filed a claim for accrued benefits in November 2011. Unfortunately, service connection for gastric cancer is not warranted. The record reflects that the Veteran’s gastric cancer was a part of his metastatic esophageal cancer, which as found above was not incurred in or caused by his active military service, to include as a result of his presumed exposure to herbicides. In addition, gastric cancer, like esophageal cancer, is not one of the diseases listed for presumptive service connection due to exposure to herbicides such as Agent Orange. 38 C.F.R. § 3.309(e). There is also no medical evidence of record linking the Veteran’s gastric cancer to his military service on a direct basis. The Board would like to extend its deepest sympathy for the appellant’s loss of her spouse, and offer its heartfelt appreciation for the Veteran’s military service. However, the Board is ultimately bound by the laws passed by Congress, and the above decision is written in accordance with those relevant statutes and regulations. Accordingly, the claim for service connection for gastric cancer, for the purpose of entitlement to accrued benefits, is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.