Citation Nr: 21065167 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-11 550A DATE: October 25, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is DENIED. FINDINGS OF FACT 1. In June 2013, the Veteran passed away; the cause of death was identified as esophageal cancer. 2. At the time of the Veteran's death, he was not service-connected for any disabilities. 3. The preponderance of the evidence indicates that the Veteran's esophageal cancer was not incurred during service in the United States Army or otherwise related to service. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed to, by an event, injury, or disease incurred during service in the U.S. Army. 38 U.S.C. §§ 1110, 1112, 1113, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Army from January 1972 to January 1992. The Veteran's military personnel records (MPRs) reflect that a portion of his active duty service was in Saudi Arabia, during Operation Desert Storm. In June 2013, the Veteran passed away; his death certificate identifies esophageal cancer as the cause. Entitlement to service connection for the cause of the Veteran's death is denied. In July 2013, the Appellant submitted a VA Form 21-534EZ. Therein, the Appellant initiated a claim for service connection for the cause of the Veteran's death (in June 2013). Service connection may be granted for a disorder resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (1) the existence of a present disorder; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disorder and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498 (1995). In cases of service connection for the cause of the death of the Veteran, the first requirement of a current disorder will always have been met, i.e., the current disorder being the one that caused the Veteran to die. However, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). To grant service connection for the cause of the veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, or one which may be presumed to have been incurred during such service. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered 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 thereto. 38 C.F.R. § 3.312 (b). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. The evidence must demonstrate that there was a causal connection between the disability and the Veteran's demise. 38 C.F.R. § 3.312 (c). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). In July 2013, VA received correspondence from an attorney. Therein, the attorney reported that an expert physician had reviewed the Veteran's chest x-ray and diagnosed mild Asbestosis. Additionally, after review of the Veteran's CT scan, the attorney's medical expert identified Pleural Disease. The Board notes that an assessment was also made for moderately differentiated adenocarcinoma of the distal esophagus, but an etiology for same was not addressed or identified. In April 2015, the Appellant submitted a VA Form 21-4138. Therein, the Appellant posited that the Veteran served in multiple military campaigns, to include Operation Desert Storm. The Appellant also posited that, "(h)e was also exposed to an extreme amount of fumes and poisonous gases during Desert Storm. He told me how they burned tires, brakes shoes, human feces, insulation and everything imaginable. He told me how it was such a putrid smell and would choke him. The doctors discovered he had been exposed to asbestos when they took x-rays because he had recently been diagnosed with esophageal cancer. The fact that he has been exposed to asbestos and the cancer was not only in his esophagus but also his lungs and his liver, is precisely why I believe his cancer was directly related to his military service." The Board notes that while the Appellant is competent to testify about the symptoms she observed during the course of the Veteran's esophageal cancer, she is not competent to identify the etiology of the deceased Veteran's esophageal cancer. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992)). In July 2015 and March 2016, the Veteran's service treatment records (STRs) were associated with the claims file. After review, the Board notes that the STRs do not contain a notation that would support the Veteran was seen or treated for esophageal cancer during service in the U.S. Army. In August 2015, VA Form 21-2507 a was associated with the Veteran's claims file. Therein, the Veteran's exposure to asbestos was conceded based on his military occupational specialty. In August 2015, a VA physician reviewed the Veteran's claim file and medical treatment notations. In the resultant report, the physician noted that, "(a)sbestos exposure is not indicative of asbestosis." The physician relayed that, "(d)eath certificate does not indicate asbestosis was a contributory cause of this Veteran's death." The physician posited that, "(a)sbestos exposure and asbestosis is not an etiological risk factor associated with the development of esophageal cancer." The physician opined that, "(t)he majority of evidence indicates that it is not at least as likely as not the Veteran's death was substantially and/or materially caused by, related to, or a result of in-service asbestos exposure or if it was a contributory factor in his death." In April 2018, the Appellant supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). At that time, the Appellant averred that, "I noticed his heartburn started getting worse and worse, he started getting more GERD, and I seriously, seriously believe that it was due to being in Desert Storm, the burn pits . . .." In May 2018, VA received correspondence from the Collom & Carney clinic. Therein, two providers commented on the now-deceased Veteran's treatment history in New Boston, Texas. The providers revealed a treatment history that included yearly contact with Veteran prior to his passage. The providers reported no family history for esophageal cancer. Ultimately, the providers opined that, "(w)e believe that there is a good possibility that (the Veteran's) metastatic adenocarcinoma of the distal esophagus could be related to frequent and constant inhalation of fumes from these burn pits that he endured during his service in Desert Storm." In October 2018, the Board addressed the Appellant's claim for service connection for the cause of the Veteran's death. At that time, the Board observed that the August 2015 VA provider did not have an opportunity to consider and/or address any medically accepted relationship between esophageal cancer and exposure to burn pits (and their byproducts). Ultimately, the Board remanded the claim to the agency of original jurisdiction (AOJ) to in order to obtain a medical opinion, from an appropriate medical examiner, to determine whether the Veteran's listed cause of death, Esophageal Cancer, was related to his U.S. Army service. In July 2021, a VA medical opinion was associated with the claims file. Therein, the physician opined that the Veteran's cause of death was not related to military service, not related to conceded asbestos exposure, and was not related to any open burning of wastes during the Operation Desert Storm era. The physician relayed that, "STRS do not contain complaints, diagnosis, or treatment for an esophageal condition, including cancer. The esophageal cancer was not diagnosed during active duty service or within a year after separation from service. Evidence supports no continuity of symptoms from service discharge until the cancer diagnosis in 3/2012, which is some 20+ years after military separation." The physician also relayed that, "(s)cientific evidence does not support asbestosis or asbestos exposure causes esophageal cancer . . .. The death certificate does not indicate asbestosis was a contributory cause of this Veteran's death. The esophageal cancer is not etiologically related to the conceded in-service asbestos exposure. The asbestos condition did not cause the Veteran's death. The asbestos condition was not a contributory factor in this Veteran's demise." Additionally, the physician relayed that, "(r)eview of VBMS and CPRS indicate no history of a multi-symptom undiagnosable illness consistent with Gulf War syndrome. The esophageal cancer is a well understood condition and would not be caused by a GW syndrome." The examiner relayed that, "(t)he esophageal cancer is not related to SW Asian environmental exposure related to burn pit residues. The esophageal cancer condition is related to smoking, ethanol use and gender . . .." After a thorough review of the evidence, and the applicable medical principles, the physician opined that, "(t)he Veteran's death was neither materially related to nor contributed to by his military service, nor by the conceded asbestos exposure, nor by SW Asian residues from burning waste." Ultimately, upon consideration of the entire record, the Board concludes that the preponderance of the evidence does not support a finding that a medical disorder incurred during U.S. Army service caused, or contributed to, the Veteran's death. While the Veteran's treating health care providers in a May 2018 statement felt that there was a good possibility that the Veteran's esophageal "could be" related to burn pit exposure. This opinion is speculative in nature. The speculative terminology "could be" provides an insufficient basis for an award of service connection, limiting the probative value of the opinion. See Winsett v. West, 11 Vet. App. 420, 424 (1998). See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). In contrast, the July 2021 VA medical opinion provided a detailed medical rationale and comprehensively considered the medical evidence of record, including conflicting medical evidence regarding etiology. Therefore, the Board affords more weight to the negative July 2021 VA medical opinion. The Board emphasizes that it is sympathetic to this Appellant and is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). As the evidence is against the Appellant's claim, there is no reasonable doubt to resolve in her favor. Therefore, the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Ultimately, the Board concludes that the preponderance of the evidence is against the Appellant's claim of entitlement to service connection for the cause of the Veteran's death; therefore, the benefit-of-the doubt rule does not apply to this entitlement claim. The claim for service connection for the cause of the Veteran's death must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.