Citation Nr: 21062813 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 12-00 116 DATE: October 12, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1964 to March 1967. The Veteran died in January 2009 and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). This matter was denied in an October 2018 Board decision. The Appellant appealed the denial of entitlement to service connection for cause of death to the United States Court of Appeals for Veterans Claims (Court). The Court issued a May 2020 Memorandum Decision setting aside the Board's denial of the claim seeking entitlement to service connection for cause of death, and remanded the matter back to the Board for further agency consideration. The May 2020 Memorandum Decision indicated that the Board erred in failing to consider whether VA's duty to assist required an opinion with respect to whether the Veteran's service-connected disabilities, to include posttraumatic stress disorder (PTSD), bilateral hearing loss, and tinnitus, were a primary or contributory cause of the Veteran's death. The Appellant further alleged that the RO did not comply with the Board's September 2015 remand directives because after the Compensation Service found no evidence to support the Appellant's contention that the Veteran was exposed to herbicide agents during service, further development was conducted using the Defense Personnel Records Information Retrieval System (DPRIS) as opposed to the Joint Services Records Research Center (JSRRC), as specifically requested in the September 2015 Board remand. The Memorandum Decision also indicated that the Board erred in its October 2018 decision when it failed to explicitly assess whether the RO substantially complied with the Board's September 2015 remand directives, and whether the DPRIS responses were from the JSRRC. The matter was remanded to the Board for further fact-finding on this issue. Past Board Remand Compliance & Herbicide Agent Exposure The evidence reflects that the Veteran died in January 2009. The cause of his death was large B-cell lymphoma and graft versus host disease. See January 2009 Florida Certificate of Death. At the time of death, the Veteran was service-connected for PTSD, bilateral hearing loss, and tinnitus. The Appellant argued that the Veteran's lymphoma, and ultimately, his cause of death, were related to claimed in-service exposure to herbicide agents. The Appellant stated that the Veteran was a parachuter who made jumps from C-130 aircraft, which he believed were previously used to disperse herbicide agents in Southeast Asia, to possibly include the Republic of Vietnam. The Appellant also alleged that the Veteran was exposed to herbicide agents during his service in the Dominican Republic. Lastly, she stated that she and the Veteran had a baby girl who passed away shortly after birth in 1970 as an indirect result of a birth defect that is claimed to have been associated with herbicide agent exposure. In the September 2015 decision, the Board remanded the claim for the RO to request from the Compensation Service a review of the herbicide agent operations maintained by the Department of Defense (DoD) in an attempt to determine whether the Veteran was exposed to herbicide agents during his service in the Dominican Republic, to include possible secondhand exposure from C-130 aircraft used in the Dominican Republic, but claimed to have been previously used in herbicide agent operations in Southeast Asia. If the claimed exposure could not be verified by the Compensation Service, the RO was requested to undertake additional efforts to verify the Appellant's claims with the JSRRC. The record contains a response from the Compensation Service in July 2017 which could not verify the claims that the Veteran was exposed to herbicide agents during his active duty service. The response indicated that the DoD has provided a list of locations outside of Vietnam and the Korean Demilitarized Zone where Agent Orange was used, tested, or stored. The inventory did not list Fort Braggthe Veteran's primary duty station from July 1964 to March 1967, absent a temporary duty in the Dominican Republic from April 1965 to approximately October 1965as being a location where herbicide agents were stored, used, or tested. The response further stated that Fort Bragg was not on the Agent Orange Shipping Line. Regarding the Appellant's contention that the Veteran sustained secondhand exposure to Agent Orange in the Dominican Republic from C-130 aircraft which previously dispersed herbicide agents in Southeast Asia, the Compensation Service response indicated there was no scientific evidence available to VA showing that being in the vicinity of aircraft or equipment previously used in Vietnam could reasonably be considered as exposure to active Agent Orange or result in long-term health effects. The Veteran's attorney has argued this explanation is contradicted by 38 C.F.R. § 3.307(a)(6)(v), which states that "[a]n individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent." The Board is not persuaded by this argument. First, the Veteran's attorney has taken an overbroad interpretation of the Compensation Service's statement. The response from Compensation Service merely explained that there was no scientific evidence showing that "being in the vicinity of aircraft or equipment previously used in Vietnam can be considered as exposure to active Agent Orange or can result in long-term health effects." In other words, scientific evidence does not support Agent Orange exposure based solely on isolated contact with an aircraft that was once used in Vietnam. The Compensation Service was responding to the Appellant's narrow allegation that the Veteran was exposed to herbicide agents outside of Vietnam, during his Dominican Republic service, where he infrequently came into contact with aircraft alleged to have been use in Vietnam herbicide agent operations. While the Veteran had a military career total of 34 to 38 jumps, it is unclear how many of these jumps took place in the Dominican Republic. See April 1969 VA Form 1-9. Contrary to the attorney's arguments before the Court, the Compensation Service did not indicate that service on or aboard an aircraft used in herbicide agent operations could never satisfy exposure to herbicide agents. Indeed, as set forth in 38 C.F.R. § 3.307(a)(6)(v), there are limited circumstances when regular and repeated service near or aboard aircraft known to have sprayed herbicide agents could constitute valid exposure. Despite the above, 38 C.F.R. § 3.307(a)(6)(v) has no application in this appeal, as that regulation applies only to individuals with Air Force or Air Force Reserve servicewhich the Veteran did not have. Additionally, this regulation only applies to C-123 aircraft, and the Appellant has only alleged herbicide agent exposure based on the Veteran's service aboard C-130 aircraft. Moreover, while the Appellant is competent to recall the Veteran's allegation that he jumped from C-130s planes, looked up the tail numbers from some of the planes, and found that they corresponded to aircraft used in Asia to spray Agent Orange, this recollection is not dispositive of the matter. In July 2009, the RO sent a letter to the Appellant requesting that she submit the tail numbers of the C-130 planes the Veteran claimed to have recorded. The Appellant did not respond with the requested information. Further, she has not clarified which system or database the Veteran used to allegedly verify that the tail numbers from the planes he served on were actually in Southeast Asia or engaged in herbicide agent operations prior to his service aboard the planes. In this regard, the Appellant's allegations are purely speculative, cannot be subject to independent verification, and lack the degree of probative value necessary to substantiate her claims that the Veteran was exposed to herbicide agents through regular and repeated contact with aircraft used in Southeast Asia to disperse herbicide agents. The Board finds no further evidentiary development is warranted regarding the Appellant's allegation that the Veteran experienced secondhand exposure to herbicide agents through his service aboard C-130 aircraft in the Dominican Republic. Following the receipt of the July 2017 memorandum from Compensation Service, the RO undertook further attempts to verify the Appellant's herbicide agent exposure theory through the DPRIS. In September 2017, a response from the DPRIS indicated that the 1965 records for the Veteran's unit could not be located, but a review of the 82nd Airborne Division Power Pack Dominican Republic Report did not mention the use, storage, spraying, testing, or transporting of any herbicide agents in the Dominican Republic from April 1965 to May 1965. Much of the litigation at the Court focused on whether this response from the DPRIS equated to a response from the JSRRC as explicitly requested in the September 2015 Board remand, and whether the RO substantially complied with the Board's remand directives as required by Stegall v. West, 11 Vet. App. 268 (1998). According to the DPRIS webpage, "DPRIS provides a conduit for the secure electronic retrieval of document images from the Military Services' Official Military Personnel File (OMPF) systems, and narrative data from the [JSRRC], in response to request initiated by authorized and approved government agency users, authorized subordinate agencies, and veterans." See DPRIS homepage, https://www.dpris.dod.mil/home.html, last accessed October 1, 2021. Thus, the DPRIS response was from JSRRC, and the RO did not error in this regard. However, upon review of the record, the Board finds additional evidentiary development is warranted in an attempt to verify the Appellant's general allegation that the Veteran was exposed to herbicide agents during his service in Dominican Republic (aside from the claim regarding exposure through C-130 aircraft). The Board is unable to find any information in the July 2017 Compensation Service memorandum specifically discussing whether herbicide agents were used in the Dominican Republic during 1965, as directly requested in the September 2015 Board remand. Additionally, the search conducted by the DPRIS regarding herbicide agent exposure in the Dominican Republic focused only on the periods of April to May 1965, when the record contains credible evidence that the Veteran served in the Dominican Republic from April 1965 to approximately October 1965. As such, the Board finds the July 2017 Compensation Service memorandum and the September 2017 DPRIS response to be incomplete, insofar as they did not address the full scope of the Veteran's claimed herbicide agent exposure for all applicable time periods (aside from the claim regarding exposure through C-130 aircraft). Upon remand, the RO is requested to contact the Compensation Service and verify whether herbicide agents were used, handled, stored, or tested in the Dominican Republic from April 1965 to October 1965. Since the September 2017 DPRIS response was received, VA has enacted a regulatory amendment removing the reference to the JSRRC from relevant regulations, as the JSRRC no longer exists. See 86 Fed. Reg. 15413 (Mar. 23, 2021). Nonetheless, the military records previously researched by the JSRRC remain available for research by VA as an official source of records through the VA Records Research Center (RRC). If the Compensation Service cannot verify that the Veteran was exposed to herbicide agents during his 1965 Dominican Republic service, the claim is to be forwarded to the RRC in an attempt to verify whether herbicide agents were used, tested, stored, or handled in the Dominican Republic from April 1965 to October 1965. If the Appellant's allegations regarding the Veteran's in-service exposure to herbicide agents in the Dominican Republic are verified, there is no basis to seek a VA medical opinion, as presumptive service connection shall be in order, given that chronic-B-cell leukemias and Non-Hodgkin's lymphoma are on the list of diseases presumptively related to in-service herbicide agent exposure. See 38 C.F.R. § 3.309(e). The Appellant has argued that the Veteran could have also been exposed to herbicide agents in Vieques Islands, Puerto Rico; at Fort Benning; at Fort Gordon; at Fort Polk; or in Jacksonville, Florida. See February 2009 letter. There is no evidence that the Veteran ever served at Vieques Island, Puerto Rico or Jacksonville. See Veteran's Record of Assignments, associated with the electronic claims file on January 25, 2016. Additionally, while the Veteran did have limited service at Forts Benning, Gordon, and Polk, there is no allegation from the Appellant that the Veteran ever told her he suspected he was exposed to herbicide agents at these military bases, and the Appellant has no firsthand knowledge of any potential herbicide agent exposure at these bases. As such, the Appellant's arguments are speculative and do not warrant evidentiary development verifying herbicide agent exposure at these locations. Claimed Exposure to Dichloro-diphenyl-trichloroethane (DDT) In August 2021, nearly 12 years after initiating the claim, and after litigation at the Court, the Appellant alleged for the first time that the Veteran's large B-cell lymphoma may have been the result of in-service exposure to DDT during the Veteran's service in the Dominican Republic. In support of this theory, the Appellant submitted a Department of Agriculture report entitled, The Pesticide Review 1967, which states that over 1 million pounds of DDT were exported to the Dominican Republic between 1964 and 1966, where it was suggested that the chemical was largely used in the agriculture of sugar cane. In an August 2021 brief, the appellant's attorney, makes a broad and unsupported inferential leap that this report proves the Veteran was exposed to DDT during his service in the Dominican Republic. The record lacks any statement from the Appellant recalling any recollection from the Veteran that he was exposed to DDT during his active duty service, and the Appellant has no firsthand knowledge of such exposure. Contrary to the attorney's assertion, there is no probative evidence establishing that the Veteran ever served in or near sugar cane plantations or fields. Further, there is no evidence of record proving that the Veteran was actually exposed to DDT during the course of his Dominican Republic service, and the attorney's arguments are based purely on speculation, rendering them void of probative value. As the record contains nothing more than unsubstantiated speculationand no primary evidentiary supportthat the Veteran may have been actually exposed to DDT during his active duty service, VA's duty to assist in verifying this allegation has not been triggered, and no further evidentiary development is warranted regarding this theory of entitlement. In August 2021, the Veteran's attorney submitted a medical opinion from Dr. P.C. (Avitus Health) which opined, in relevant part, that the Veteran's claimed in-service exposure to DDT was at least as likely as not a contributing or aggravating factor in the Veteran's eventual diagnosis of non-Hodgkin's lymphoma. The Board affords this medical opinion no evidentiary weight, as it is conclusory, unsupported by an explanatory rationale, and is based on an unsubstantiated factual premise. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion."); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion...." It is unclear how Dr. P.C. was able to link the Veteran's lymphoma diagnosis to DDT, when the record lacks any probative evidence establishing that the Veteran was ever actually exposed to DDT. The fact that Dr. P.C. was willing to issue a medical nexus opinion based purely on speculative claims of in-service DDT exposure, without any primary evidentiary support in the file, calls into question the integrity and reliability of any medical opinion issued under his name. As the Appellant's allegation that the Veteran was exposed to DDT during his Dominican Republic service has not been probatively demonstrated, there is no basis upon which to seek a VA medical opinion regarding this theory of entitlement. Service-Connected Disabilities Claimed as Principal/Contributory Cause of Death I. PTSD The Appellant has alleged that the Veteran's service-connected PTSD "substantially and materially aided and lent assistance and expedited [the Veteran's] death." See February 2009 lay statement. In support of this contention, the Appellant submitted an August 2021 private medical opinion from Dr. P.C. (Avitus Health) that listed the Veteran's relevant medical history regarding his diagnoses of PTSD and non-Hodgkin's lymphoma and cited medical literature to support the conclusion that the Veteran's non-Hodgkin's lymphoma was a direct-result of his service-connected PTSD. Regretfully, the Board finds that Dr. P.C.'s medical opinion is entitled to no probative value because it cherry-picked statements from the cited medical literature; misinterpreted, misstated, or misapplied several key components from the cited medical literature; ignored relevant nuances and points of caution/disagreement from the cited studies; and was ultimately based on vague generalities without any foundation in the medical evidence of record. Dr. P.C. cited an article titled, "Cancer incidence and mortality following exposure to distal and proximal major stressors" for the position that "patients...with psychological trauma and subsequent chronic stress/anxiety have increased rates of...cancer." However, this article supports no such position. In fact, the first paragraph of the article stated that "the putative effect of [stressors] on cancer remain ambiguous." Further, the study explored cancer incidence and mortality by combining a proximal (parental bereavement) with a distal (Holocaust exposure) major stressor. There is no evidence that the Veteran's PTSD was the result of parental bereavement or Holocaust exposure, and thus, it remains unclear how this article is relevant to the Veteran's particular circumstances. Additionally, the results of the study concluded that "[i]ndividuals who faced both a proximal (bereavement) and distal (Holocaust) major stressors had no additive risk for cancer incidence and mortality." Emphasis added. Dr. P.C. then relied on an article titled "Cancer incidence and survival following bereavement" which investigated the association between the "the loss of an adult son, and its effect on cancer incidence and survival." Dr. P.C. failed to articulate how the factual premise from this medical study was applicable to the Veteran's circumstances, given that the Veteran's service-connected psychiatric disability has been shown through record evidence to be related to in-service combat trauma, anxiety/depression related to tinnitus, and adjustment to his cancer diagnosis. There is no evidence that the Veteran's psychiatric disorder was the result of the loss of an adult child. Next, Dr. P.C. cited the article "Do stress-related psychosocial factors contribute to cancer incidence and survival?" for the proposition that psychological stress is associated with a higher rate of cancer incidence and reduced survival in cancer patients. The results of the metanalysis suggested that stress-related psychosocial factors had an adverse effect on cancer outcomes, although effects varied by type of psychosocial factor, cancer site, and cancer outcome. The authors noted that their review demonstrated a much stronger positive finding than many other studies, and their review was impacted by several limitations. The authors explained that their review of the longitudinal literature revealed evidence of publication bias, suggesting that publications were more likely to accept positive rather than negative or inconclusive results, which could have impacted the credibility of their review. Additionally, the authors explained that the prospective studies may have also been affected by recall bias; some studies used registry information to measure stressor information instead of self-reporting; and the method for grouping levels of stress and other psychosocial factors were inconsistent across the reviewed studies. The authors stated, "the current findings on the adverse effect of stress-related psychosocial factors on cancer point to the value of further research in the field, but they should be interpreted with caution, and additional prospective research is needed." Contrary to Dr. P.C.'s implication, this study does not convey conclusive findings based on medical principles that are universally accepted by scientific professionals. Further, the study shows, at best, a statistical correlation between psychosocial stressors and cancer incidence/mortality and did not investigate avenues of pathological causation. To support his medical opinion, Dr. P.C. also relied on information from the article, "Physical health conditions associated with full and threshold PTSD in U.S. military veterans: Results from the National Health and Resilience in Veterans Study." Dr. P.C. stated that this research showed that "patients with a history of psychological trauma had higher odds of having cancer." The Board finds no persuasive authority for this proposition in the cited article. In relevant part, the article stated, "With regard to the cancer-related finding, our results accord with prior work suggesting no PTSD-cancer association." While the study found that veterans without trauma exposure had the lowest rates of cancer, it did not prove or otherwise conclude that trauma-exposed veterans had higher odds of developing cancer, as asserted by Dr. P.C. Lastly, Dr. P.C. cited the article, "Post-traumatic stress and cancer: Findings from a cross-sectional nationally representative sample" to support the proposition that patients with PTSD have a "significantly greater" prevalence of cancer, particularly those with more severe psychological symptoms. In the introduction, the researchers conceded that "for trauma/PTSD increasing risk of cancer...direct empirical support for this hypothesis is lacking." Furthermore, the statistical correlation between trauma and cancer incidence noted by the researchers varied by sex, type of cancer diagnosis, and the characteristics of the trauma experienced by the subjects. For instance, respondents with PTSD who identified an illness as their worst traumatic exposure had significantly greater odds of experiencing "any" cancer. In fact, in Table 3, the study shows that respondents with PTSD based on a combat stressors and cancer diagnoses were not analyzed because there were fewer than 5 respondents. Dr. P.C.'s opinion is based entirely on generalities without discussing the relevant nuances set forth in the journal article. Based on selective interpretation of the cited studies, Dr. P.C. opined that "[t]he medical literature supports the conclusion that PTSD and chronic stress can lead to cancers including leukemia and lymphoma" and as such, the Veteran's non-Hodgkin's lymphoma was at least as likely as not a direct result of the Veteran's service-connected PTSD. (Emphasis added). In addition to the fact that Dr. P.C.'s narrative is based on a generalized and overbroad assessment of the cited literature, without any discussions of the qualifying, contradictory, or nuanced factors referenced in the reports, his opinion that PTSD "can" lead to cancer is purely speculative, and he has cited to no record evidence objectively indicating such a link, and he has not identified any biological pathway supporting the contention that PTSD caused, aggravated, or substantially or materially contributed to the Veteran's non-Hodgkin's lymphoma and/or the Veteran's death. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998). For the reasons stated above, the Board finds the August 2021 private medical opinion of Dr. P.C. is not fully informed by the cited literature or supporting evidence in the Veteran's medical records, and as such, it is bereft of any probative value in this appeal. However, since Dr. P.C. has provided the necessary indication that the Veteran's service-connected PTSD may have substantially or materially contributed to the Veteran's death from non-Hodgkin's lymphoma and graft versus host disease, VA's duty to obtain a VA medical opinion has been triggered, and the claim is remanded for such action. 38 C.F.R. § 3.159(c)(4)(i)(C). II. Tinnitus and Hearing Loss Although the Appellant sincerely believes that the Veteran's bilateral hearing loss and tinnitus may have substantially or materially contributed to the Veteran's non-Hodgkin's lymphoma and death, there is no indication, aside from the Appellant's mere conclusory generalized lay statements that this is so. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (Since all claimants could make bare assertions that a service connected illness caused or aggravated a medical problem, requiring examinations in such cases without more "would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case."); see also February 2009 lay statement. As a layperson, the Appellant is competent to report matters within her own personal knowledge; however, a lay person without appropriate medical training and expertise simply is not competent to opine on more complex medical questions, such as which disabilities could have caused or contributed to the Veteran's non-Hodgkin's lymphoma or death. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As the record is devoid of any indication (beyond the Appellant's lay contentions) that the Veteran's service-connected tinnitus and bilateral hearing loss substantially or materially contributed to the Veteran's death, VA's duty to assist in obtaining a VA medical opinion has not been triggered regarding this theory of entitlement, and no further evidentiary development is warranted on this basis. The matter is REMANDED for the following action: 1. Request from the Compensation Service a review of the inventory of herbicide agent operations maintained by DoD to determine whether the Veteran was likely exposed to herbicide agents during his April 1965 to October 1965 service in the Dominican Republic. If the exposure cannot be verified by the Compensation Service, verification should be sought through VA's RRC. 2. Also refer the matter to an appropriate VA examiner for a medical nexus opinion. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiry: Is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected PTSD was a principal or contributory cause of the Veteran's death? The Appellant argues that the Veteran's service-connected PTSD caused, aggravated, or aided assistance to the Veteran's death from non-Hodgkin's lymphoma. A disability will be considered 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. To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(b), (c)(1). The VA examiner is requested to consider and address the August 2021 private medical opinion linking the Veteran's death from non-Hodgkin's lymphoma to his PTSD, and the medical literature cited therein. The VA examiner's medical opinion must be accompanied by a complete explanatory rationale based on the VA examiner's clinical experience and medical expertise; established medical principles; and/or citations to the electronic claims file, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.