Citation Nr: 20049947 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 09-38 276 DATE: July 28, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to burial benefits is granted. FINDINGS OF FACT 1. The Veteran died in October 2008 and his death certificate lists the sole cause of death as esophageal cancer with liver metastasis. 2. During his lifetime, the Veteran was not service-connected for any disabilities by VA. 3. The Veteran is presumed to have been exposed to herbicides. 4. The Veteran is presumed to have been exposed to contaminated water at Camp Lejeune, North Carolina. 5. Resolving all doubt in the appellant’s favor, the Veteran’s esophageal cancer was cause by his presumed exposures to herbicides and contaminated water. 6. The appellant incurred expenses related to the Veteran’s funeral and burial. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.309, 3.312. 2. The criteria for entitlement to burial benefits have been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1600-3.1610 (as in effect prior to July 7, 2014); 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to April 1970. He died in October 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Jurisdiction has since been transferred to the RO in Louisville, Kentucky. In April 2012, August 2013, and February 2018, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. 1. Entitlement to service connection for the cause of the Veteran's death The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. See 38 U.S.C. § 1310; see also 38 C.F.R. § 3.312. A service-connected disability is considered the “principal” cause of death when that 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. 38 C.F.R. § 3.312(c). A contributory cause must be causally connected to the death and must have “contributed substantially or materially” to death, “combined to cause death,” or “aided or lent assistance to the production of death.” Id. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In the present claim, the Veteran died in October 2008. His death certificate lists the cause of death as esophageal cancer with liver metastasis. See October 2008 Certificate of Death. At the time of his death, service connection had not been established for any disability. The appellant asserts that the Veteran’s esophageal cancer was the result of his presumed exposure to herbicide agents (Agent Orange) while the Veteran was stationed in Vietnam and/or his presumed exposure to contaminated water while he was stationed at Camp Lejeune, North Carolina. Therefore, the appellant contends the Veteran’s esophageal cancer is a service-connected cause of death. As stated above, at the time of his death, service connection had not been established for any disability. Thus, the central issue in the present cause of death case is whether service connection is warranted for the Veteran’s esophageal cancer. 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). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, from February 28, 1961, to 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 that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The Veteran’s service records confirm he was stationed in Vietnam during the relevant time period. Accordingly, his exposure to herbicide agents is established by the evidence of record. It has been established that veterans who served at U.S. Marine Corps Base Camp Lejeune were potentially exposed to contaminants present in the base water supply prior to 1987. The chemical compounds involved have been associated by various scientific organizations with the possible development of certain chronic diseases. As the Veteran’s service records show he was stationed at Camp Lejeune during the relevant time period, it will be assumed that he was potentially exposed to chemicals known to have contaminated the water at Camp Lejeune. For Veterans, such as this Veteran, who had service at Camp Lejeune between August 1953 and December 1987, VA has defined a legal presumption to the effect that the diseases of kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of 38 C.F.R. § 3.307(d). 38 C.F.R. § 3.309(f)(8). This rule will apply to claims received by VA on or after March 14, 2017, the effective date of the final rule and to claims pending before VA on that date. Under 38 C.F.R. § 3.160(c), a claim that has not been finally adjudicated (which includes claims where a final and binding decision has been issued but the appeal period has not expired) is still considered a pending claim. The Board notes that esophageal cancer is not a disorder that is presumed to be related to exposure to herbicides or contaminated water under 38 C.F.R. § 3.309. Although VA cannot presume under law that the Veteran’s esophageal cancer is related to toxic exposures at Camp Lejeune or herbicide agents, this does not prevent the appellant from presenting evidence showing a direct causation in this particular case. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In support of her claim, the appellant submitted a medical opinion which opined that the combination of exposure to contaminated water and herbicides more likely than not led to the development of the Veteran’s esophageal cancer. In support of this opinion, the physician stated that Agent Orange is made up of dioxin and 2,4,5-T, which are classified as carcinogens by the National Toxicology Program and the International Agency for Research on Carcinoma. He further rationalized that the Veteran’s exposure to herbicides and contaminated water was primarily through ingestion which resulted in direct contact with the esophageal mucosa. As a result of this contact, cellular mutation led to the development of esophageal cancer. The examiner also acknowledged the Veteran’s other risk factors, including his history of tobacco use, but concluded that the Veteran’s exposures to herbicides and contaminated water contributed to the development of his esophageal cancer. See December 2017 R.H., M.D. Statement. The appellant also submitted a prior Board Decision in which service connection for esophageal cancer based on herbicide exposure was at issue to support her claim. The Board strives for consistence in all of its decisions. That being said, the Board notes its decisions are nonprecedential and are binding only with respect to the specific case decided. The fact that another Veterans Law Judge (VLJ) decided that a particular veteran’s circumstances warranted granting service connection for esophageal cancer is not binding upon the undersigned VLJ dealing with an entirely different Veteran under an entirely different set of circumstances. See 38 C.F.R. § 20.1303. The Board notes that there are negative etiological opinions of record dated December 2010, October 2011, August 2012, February 2017, March 2019, April 2019, and April 2020. These opinions, however, primarily rely on esophageal cancer not being listed as a presumptive condition associated with exposure to herbicides or contaminated water at Camp Lejeune. Additionally, none of these opinions considered the combined effects of herbicides and contaminated water. Accordingly, the Board finds these opinions inadequate. In sum, the Veteran’s esophageal cancer has been attributed by competent medical evidence to his in-service exposures to contaminated water and herbicides. Although there are VA medical opinions of record that are unfavorable, the Board finds that, at the least, the evidence for and against the claim is in relative equipoise. When the evidence for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. See 38 U.S.C. §§ 1154(b), 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the appellant and entitlement to service connection for the Veteran’s cause of death is warranted. 2. Entitlement to burial benefits Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which included burial allowances for service-connected and non-service-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the existing regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new regulations renumbered as 38 C.F.R. §§ 3.1700 through 3.1713. See 79 Fed. Reg. 32,653-32,662 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713). The final rule is applicable to claims for burial benefits pending on or after July 7, 2014. (The appellant’s claim for burial benefits has been pending since March 2009, i.e., before the effective date of the rule change on July 7, 2014). Generally, when a regulation changes during the pendency of a claim, VA may consider both the new and old provisions, with due consideration to the effective date of the changes and apply the most favorable criteria (subject to effective date rules). However, the provisions potentially applicable to the facts of this case have undergone no substantive changes. Both versions are equally favorable. The Board will principally cite the old regulations, in effect at the time the appellant’s claim was filed in March 2009. As service connection for the cause of the Veteran’s death has been granted above, the criteria for service-connected burial benefits have been met. See 38 C.F.R. § 3.1600(a). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.