Citation Nr: 21062036 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-40 976 DATE: October 6, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in August 1999. The death certificate lists metastatic pancreatic cancer as the immediate cause of death with no contributory cause of death. 2. The Veteran had active service in the Republic of Vietnam and is presumed to have been exposed to herbicides during service. 3. The Veteran's pancreatic cancer did not have its onset in service, did not manifest to a compensable degree within one year of discharge, and is not otherwise causally related to service, to include presumed exposure to herbicides. 4. A service-connected disability did not cause or contribute substantially or materially to the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death, to include due to exposure to herbicides have not been met. 38 U.S.C. §§ 1110, 1112, 1310, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1967 to May 1970, including service in the Republic of Vietnam. He died in August 1999. The Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (the Board) on appeal from the January 2016 Department of Veterans Affairs (VA) Pension Management Center (PMC) decision. The decision confirmed and continued a prior denial of service connection for the cause of the Veteran's death because no new and material evidence had been received to reopen the claim. The Appellant's Notice of Disagreement (NOD) was received in February 2016. In June 2017, the Regional Office (RO) issued a Statement of the Case, and the Appellant's VA Form 9, substantive appeal to the Board was received in August 2017. In the December 2019 Board decision, the claim was reopened and remanded for further development and adjudication. The claim was once again remanded in August 2020. Entitlement to service connection for the cause of the Veteran's death, to include due to presumed exposure to herbicides. The Appellant contends that the Veteran's primary cause of death is related to his presumed exposure to herbicides in service. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active military service was the principal or contributory cause of death. 38 C.F.R. § 3.312. For a disability to constitute the principal cause of death, it must be one of the immediate or underlying causes of death or must be etiologically related to the cause of death. For a disability to be a contributory cause of death, it must have contributed substantially or materially to cause death; combined to cause death; or aided or lent assistance to the production of death. It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312 (b), (c). Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Turning to the evidence of record, the Veteran's service treatment records (STRs) do not contain any reference ot diagnosis, treatment, symptoms, or complaints, related to metastatic pancreatic cancer. The Veteran's VA treatment records indicate that he was diagnosed with pancreatic cancer in January 1998, when he presented with symptoms of painless jaundice. The Veteran died in August 1999. His death certificate lists metastatic pancreatic cancer as the immediate cause of death. There are no contributory causes of death listed. The VA terminal hospital records further show that the Veteran had pancreatic cancer with metastasis to the liver. At the time of his death, the Veteran had the following service-connected disabilities: postoperative cranioplasty with right skull defect, headaches, paralysis of the musculospiral nerve, radial nerve paresis, right ankle gunshot wound, left muscle group IV fragment wound, fracture right ulna, tender scar mid-forearm, and malaria. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. See 38 C.F.R. § 3.309 (e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to exposure to herbicide agents do not include pancreatic cancer. 38 C.F.R. § 3.309(e). The presumptive regulations, however, do not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In December 2019, the RO obtained a medical opinion. The VA examiner noted that the National Academy of Sciences aids the Agent Orange Committee in periodically reviewing epidemiological studies to assess disease statistical relationships to Agent Orange in Vietnam Veterans. The VA examiner indicated that the NAS has determined that there is no positive association between herbicide exposure and pancreatic cancer. The VA examiner also indicated that the NAS still sets the gold standard for Agent Orange related conditions with their expert extensive review of epidemiological studies. The VA examiner noted that pancreatic cancer is more common in obesity, diabetics, high fat diet, chronic pancreatitis, and smoking. Pursuant to the April 2020 Board remand, the December 2019 VA medical opinion is inadequate to the extent that it solely relied upon the NAS finding that there was inadequate or insufficient evidence to support a categorical association between herbicides used in Vietnam and development of pancreatic cancer. In May 2020, the RO obtained an addendum medical opinion. The VA examiner thoroughly summarized the Veteran's records and concluded that it is less likely than not that the Veteran's cancer was etiologically related to his military service, to include his presumed in-service exposure to herbicides, including Agent Orange. The VA examiner noted that the incidence of pancreatic cancer in United States for males 50 to 64 years old is 23.1 per 100,000 (per National Cancer Institute) and is higher in males than females. The VA examiner also noted that current medical knowledge does not support a causal relationship between Agent Orange and pancreatic cancer. The VA examiner clarified that this means that there is no association, based on established epidemiologic literature, including occupational studies, case control studies, and biologic plausibility studies. The VA examiner indicated that large studies of Vietnam Veterans found no significant increase in either pancreatic cancer or pancreatic cancer mortality. The VA examiner also indicated that a review of the Veteran's records does not reveal evidence that his cancer was related to service, including exposure to Agent Orange. The VA examiner also addressed the literature submitted by the Appellant and noted that there was nothing in the materials that supported a nexus in this case. Additionally, the Appellant submitted several articles and documents in support of her contentions. There is a May 2015 internet article summarizing a case of a widow who prevailed in obtaining service connection for pancreatic cancer due to exposure to Agent Orange on behalf of her late husband. There is an unpublished study regarding increased risk of pancreatic cancer in Veterans deployed during Vietnam War. However, that study specifically indicates that diabetes is a known risk factor for pancreatic cancer. Additionally, there is no indication that any causation between exposure to herbicides and pancreatic cancer was explored. In other words, the study merely reviewed pancreatic cancer rates among Texas men. A third article submitted consists of a study on the treatment and survival rates of stage IV pancreatic cancer at VA hospitals. There is also an article called "Letter to a Vietnam Veteran's Wife on Pancreatic Cancer", outlining use of herbicides in the Republic of Vietnam and citing several sources on pancreatic cancer. There is also a news article regarding a pharmacist who diluted chemotherapy drugs for thousands of cancer patients and was sentenced to 30 years in prison. Based on the above, the preponderance of the evidence is against the claim. The Veteran's pancreatic cancer did not have its onset in service, did not manifest to a compensable degree within one year of discharge, and is not otherwise causally related to the Veteran's service, to include presumed exposure to herbicides. Moreover, the evidence does not show, nor has the Appellant contended, that any of the Veteran's established service-connected disabilities caused or contributed to his death. Accordingly, service connection is not warranted. The Veteran's pancreatic cancer did not have its onset in service and did not manifest to a compensable degree within one year of discharge. In this case, the Veteran's STRs do not contain any mention of in-service symptoms or treatment for pancreatic cancer. Moreover, the Veteran's VA treatment records indicate that he was diagnosed in January 1998, approximately 28 years after discharge. The remaining question is whether the Veteran's pancreatic cancer was otherwise causally related to any in-service injury or disease, to include the presumed exposure to herbicides. With respect to a nexus, the Appellant has alleged that the Veteran's pancreatic cancer is related to his in-service exposure to herbicides. However, the May 2020 VA medical opinion indicates that there is no nexus between the Veteran's pancreatic cancer and presumed exposure to herbicides in service. The VA examiner thoroughly reviewed and summarized the Veteran's records and provided appropriate medical literature in support of their contentions. The VA examiner indicated that males in the Veteran's age range have a higher risk of incidence of pancreatic cancer, and that large studies showed no higher prevalence of pancreatic cancer or pancreatic cancer-related deaths amongst Vietnam Veterans. Moreover, the VA examiner addressed the Veteran's particular case and found that his records do not contain evidence linking his pancreatic cancer to service, including exposure to Agent Orange. The VA examiner also addressed the records submitted by the Appellant. The May 2020 VA medical opinion is afforded probative value as the Appellant's contentions were completely addressed, and full rationale was provided for conclusions reached. Although the Appellant sincerely believes that the Veteran's pancreatic cancer was caused by presumed in-service exposure to herbicides, she is not competent to provide a medical opinion in this case. The diagnosis and etiology of the cause of the Veteran's death cannot be competently addressed by the Appellant as a lay person. The issue is medically complex, as it requires knowledge of interpreting complicated diagnostic medical testing and interpretation of medical records and studies. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, while the Appellant may testify to the Veteran's observable symptoms, she is not competent to provide a diagnosis or a nexus opinion in this case. As such, her opinion is not probative. With respect to the internet articles and studies submitted by the Appellant, they cannot be assigned probative value and cannot serve as the basis for a finding of a nexus in this case. The Court has held that, generally, medical treatises are too inexact, standing alone, to satisfy the nexus requirement for service connection. See Sacks v. West, 11 Vet. App. 314, 317 (1998). Moreover, in this case, the majority of the internet articles do not address whether there is a nexus between exposure to herbicides and the Veteran's pancreatic cancer. For example, the studies outline prevalence of pancreatic cancer in Vietnam veterans, but do not address whether exposure to herbicides can cause pancreatic cancer. Articles outlining contents of herbicides likewise do not address causation. The first article regarding the widow securing service connection for pancreatic cancer due to exposure to herbicide does not pertain ot the Veteran's medical situation or address the particular etiology of the Veteran's pancreatic cancer, and is therefore it is too general to show the requisite causal connection between the Veteran's pancreatic cancer and his service. In this light, the probative medical evidence does not support a nexus between the Veteran's cause of death and his service. The Veteran's pancreatic cancer did not have its onset until 28 years after discharge, and the record does not link pancreatic cancer to service, including presumed exposure to herbicides. Thus, while there is evidence of a diagnosed disability along with presumed in-service exposure to herbicides, the preponderance of the competent evidence fails to show a nexus in this case. Moreover, the evidence does not show, nor has the Appellant contended, that any of the Veteran's established service-connected disabilities caused or contributed to his death. The Veteran's death certificate lists metastatic pancreatic cancer as his immediate cause of death and makes no mention of any other disabilities. Thus, the evidence does not establish that the Veteran's service-connected disabilities either caused or contributed significantly to his death. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. The benefit of the doubt doctrine is not for application, and entitlement to service connection for this disability is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.