Citation Nr: 21062370 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-40 864 DATE: October 7, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran died in June 2013; he was not service connected for any disabilities. 2. The death certificate listed extensive bilateral pulmonary embolism as the immediate cause of death, with underlying causes of grade 4 glioblastoma multiforme and esophageal cancer, recurrent. 2. The evidence does not demonstrate that bilateral pulmonary embolism, glioblastoma multiform or esophageal cancer were incurred in service or that glioblastoma multiform or esophageal cancer were manifest within one year of separation from active service. 4. The Veteran's death was not caused by, or substantially or materially contributed to, by an event, injury, or disease incurred in active military service, to include presumed herbicide exposure. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death are not met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.303, 3.304, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from August 1968 to August 1970, with service in the Republic of Vietnam from October 1969 to August 1970. He died in June 2013. The appellant is his surviving spouse. The matter was initially before the Board on appeal of a September 2014 rating decision. In July 2019, the appellant testified at a video conference hearing before a Veterans Law Judge (VLJ) other than the undersigned; a transcript is of record. A December 2019 Board decision denied entitlement to service connection for the Veteran's cause of death. The appellant appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC). A December 2020 CAVC Order vacated the Board's December 2019 decision and remanded the claim to the Board for further development and re-adjudication consistent with terms of a November 2020 Joint Motion for Remand (JMR). An April 2021 Board letter advised the appellant that the VLJ who conducted the hearing is no longer with the Board and offered her the opportunity for another Board hearing before a VLJ who would decide her appeal. In May 2021, the appellant responded that she did not desire another hearing and wanted the case decided on the evidence of record. In June 2021, the Board remanded the claim for further development. Entitlement to service connection for the Veteran's cause of death Service connection for the cause of a Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability is considered the principal cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, 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. Determinations as to whether service connection may be granted for a disability that caused or contributed to the Veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include brain tumors, manifesting themselves to a compensable degree within one year after service must have had their onset in service. 38 U.S.C. §§1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). At the outset, the Board notes that the record contains no indication, nor has the appellant contended, that the Veteran's fatal disabilities were manifest to a compensable degree within one year after discharge. Therefore, service connection on this basis is not established. In this case, the Veteran died in June 2013. Prior to death, he was not service connected for any disabilities. The death certificate listed extensive bilateral pulmonary embolism as the immediate cause of death, with underlying causes of grade 4 glioblastoma multiforme and esophageal cancer, recurrent. The appellant claims that the Veteran's extensive bilateral pulmonary emboli, grade 4 astrocytoma/glioblastoma multiforme, and recurrent esophageal cancer that caused his death were due to exposure to Agent Orange. The Veteran served in Vietnam from October 1969 to August 1970; therefore, he is presumed to have been exposed to herbicide agents/Agent Orange during service. The Board notes that bilateral pulmonary emboli, grade 4 astrocytoma/ glioblastoma multiforme, and esophageal cancer are not disabilities for which presumptive service connection based on exposure to the herbicide Agent Orange is warranted. Nevertheless, a claimant is not precluded from establishing service connection for a disease claimed to be related to herbicide exposure, as long as there is proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Despite the fact the disabilities are not listed as diseases presumptively associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e), the appellant may still establish service connection on a direct basis. In a February 2016 medical statement, the Veteran's private physician indicated that he was diagnosed to have, and was and treated for, adenocarcinoma of the esophagus and was diagnosed to have glioblastoma multiforme of the brain which ultimately led to his death. The provider related that the Veteran's wife reported that he was exposed to "Agent Orange" when he was in Vietnam. He opined that although there was no obvious cause of the above malignancies in the Veteran, he could not really say whether Agent Orange played a role in the malignancies, but it could have. In the November 2020 JMR, the parties agreed that vacatur and remand was required because the Board failed to provide an adequate statement of reasons or bases regarding any decision on the Secretary's duty to assist under 38 U.S.C. § 5103A(a), to include consideration of the February 2016 letter from the Veteran's private physician. In its June 2021 remand, the Board found the February 2016 private medical opinion to be inadequate for rating purposes. The Board remanded the claim to obtain an advisory medical opinion addressing the etiology of the Veteran's death-causing extensive bilateral pulmonary emboli, grade 4 astrocytoma/glioblastoma multiforme, and recurrent esophageal cancer. VA obtained a medical opinion in June 2021. The clinician opined that it was less likely than not that the Veteran's exposure to herbicides caused his esophageal cancer, astrocytoma/glioblastoma (brain cancer) or pulmonary emboli. As rationale, the clinician stated that cancers of the gastrointestinal system, including esophageal cancer, have been extensively studied in Vietnam veterans and no link has been established with Agent Orange exposure, citing to the American Chemical Society (ACS). He also stated that "[b]ased on the epidemiologic evidence from new and previously reported studies of populations that had potential exposure to the COIs [chemicals of interest], the committee concludes that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the COIs and brain cancer or other nervous-system cancers," citing to the National Academy of Sciences (NAS) 2018 update. He further explained that the Veteran's pulmonary emboli that ultimately caused his death was due to his malignancies with some explanation of pulmonary embolism (hypercoagulation) and its relationship to malignancies. As a factual and legal determination, the Board assigns significant probative weight to the June 2021 VA clinician's opinion, discussed above, as it was conducted by a medical professional, it indicates review of the Veteran's medical history and the clinician's opinion and rationale show informed clinical reasoning and judgment with citations to appropriate medical literature. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). Review of the Veteran's service treatment records does not show any complaints, treatment or diagnosis indicative of bilateral pulmonary embolism, glioblastoma multiform or esophageal cancer. The remaining evidence of record does not link any of these disabilities to service. The Board has considered the appellant's assertions that the Veteran's death was caused by in-service Agent Orange exposure. The Board acknowledges that the appellant is competent to attest to her observations of the Veteran's symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the appellant's statements may be competent to support a claim for service connection where the events or the presence of a disability, or symptoms of a disability are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Extensive bilateral pulmonary emboli, grade 4 astrocytoma/ glioblastoma multiforme, and esophageal cancer, however, are not subject to lay diagnosis or etiology opinions. The appellant does not have the medical expertise to discern the nature of or to provide an opinion regarding the etiology of these disabilities. Although the appellant purports that the Veteran's death was caused by his in-service herbicide exposure, her statements alone are not competent to provide the medical nexus. The Board has also considered the articles submitted by the appellant regarding herbicide agents in Vietnam, entitled "Facts about Herbicides," "2,3,7,8 Tetrachlorodibenzo-p-dioxin solution Material Safety Data Sheet," and "Widow Wins VA Benefits from Agent Orange Exposure." While the Board finds them probative for background information regarding Agent Orange and other herbicide agents, it notes that the articles do not offer any opinion or supported medical conclusions regarding the specific etiology of the Veteran's diagnosed conditions. The Board is sympathetic to the appellant's loss. As discussed above however, the probative evidence of record demonstrates that the Veteran's fatal disabilities were not at least as likely as not caused by, or substantially contributed to by service, to include presumed herbicide exposure. The Board accordingly finds that the preponderance of the evidence is against the appellant's claim of service connection for the cause of the Veteran's death. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, 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.