Citation Nr: 21065377 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 12-34 586 DATE: October 26, 2021 ORDER Service connection for a heart condition, to include as due to exposure to dichlorodiphenyltrichloroethane (DDT) and herbicides and for the purpose of accrued benefits is dismissed. Service connection for diabetes mellitus type II (DMII), to include as due to exposure to DDT and herbicides and for the purpose of accrued benefits, is granted. Service connection for neuroendocrine cancer, to include as due to exposure to DDT and herbicides and for the purpose of accrued benefits, is granted. Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. In September 2021, prior to the promulgation of a decision in the appeal, the Appellant's representative withdrew the appeal seeking service connection for a heart condition, to include as due to exposure to dichlorodiphenyltrichloroethane (DDT) and herbicides. 2. Resolving reasonable doubt in the Appellant's favor, the Veteran's DMII is at least as likely as not related to DDT exposure, while in service. 3. Resolving reasonable doubt in the Appellant's favor, the Veteran's neuroendocrine cancer is at least as likely as not related to herbicide agent exposure while in service. 4. The Veteran's death was caused by neuroendocrine cancer. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal seeking service connection for heart condition are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for service connection for DMII are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for neuroendocrine cancer are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1969. He died in April 2012. The Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the St. Paul Pension Management Center of the Department of Veterans Affairs (VA). This appeal has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). In November 2011, VA received the Veteran's claim for service connection for heart condition, DMII, and neuroendocrine cancer. While the claim was pending, on April 7, 2012, the Veteran passed away. Thereafter, in a February 2016 decision, the Board determined that the Appellant qualifies as the Veteran's surviving spouse. The Appellant testified before the undersigned at an April 2015 travel board hearing regarding the issue of service connection for the cause of the Veteran's death. A copy of the transcript is of record. Most recently, this matter was before the Board in March 2019. At that time, it was remanded for additional evidentiary development. In October 2019, the Board denied the claims and the Appellant appealed the denial to the U.S. Court of Appeals for Veterans' Claims (CAVC). A July 2020 Joint Motion for Remand was issued, and all four claims were returned to the Board. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In September 2021 correspondence, the Appellant's representative withdrew the appeal seeking service connection for heart condition, to include as due to exposure to dichlorodiphenyltrichloroethane (DDT) and herbicides. As such, there remains no allegation of error of fact or law for the Board to address. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. Service Connection DMII The Appellant contends that the Veteran's DMII is service connected. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran was diagnosed with DMII. The first element is satisfied. As for the second element, Defense Personnel Records Information Retrieval System (DPRIS) records show that the Veteran's unit was exposed to DDT. Based on the DPRIS response, VA has conceded that the Veteran was exposed to DDT in service. The second element is also satisfied. Thus, this case turns on whether or not there is a nexus between the DMII and DDT. The Board finds that the evidence is in relative equipoise that the Veteran's DMII was caused by his exposure to DDT. Therefore, service connection is granted. In October 2018, after reviewing the record, Dr. G., a VA examiner, opined that it is less likely than not that the Veteran's DMII was incurred in or caused by his service. Dr. G. said there was no evidence of DMII in the Veteran's service treatment records, the Veteran's DMII was not diagnosed until many years after service, and there is no medical rationale to link the Veteran's DMII with his service. In March 2019, a second VA examiner gave a similar opinion. The examiner wrote that, although DDT exposure is being studied as a cause of DMII, current medical evidence does not support the development of DMII as related to DDT exposure. The examiner also noted that, while in animal models perinatal and prenatal exposure have increased the susceptibility to DMII, the Veteran's exposure was neither perinatal nor prenatal. In September 2021, Dr. M.K. wrote a letter detailing the connection between DDT exposure and DMII. In his letter, Dr. M.K. cited numerous studies. In his analysis of the literature concerning the association between DDT exposure and DMII, Dr. M.K. pointed to studies for and against a finding that DDT and DMII are associated. Of note, the studies focused on agricultural workers that had been exposed to DDT. Thus, his opinion is based on a very measured analysis and an appropriate age group. Therefore, the Board finds him credible. Based on his review of literature, Dr. M.K. opined that the majority of recently published epidemiology studies link DDT to development of DMII. He added that it was more likely than note that exposure to DDT caused or aggravated diabetes pathogenesis in the Veteran. After reviewing record, medical experts have come to different sensible conclusions. The evidence is thus in relative equipoise in showing that the Veteran's DMII was as likely as not due to the Veteran's DDT exposure. Therefore, the Board grants service connection for DMII. Neuroendocrine cancer The Appellant contends the Veteran's cancer is caused by the Veteran's exposure to Agent Orange. Once again, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The first element is satisfied, the Veteran had cancer. As for the second element, the Veteran submitted a statement saying he had been exposed to Agent Orange while serving in Bang Pla, Thailand. Military records confirm the Veteran was in Thailand from May 4, 1968 through August 9, 1969. Defense Personnel Records Information Retrieval System (DPRIS) records confirm the Veteran's report of his unit's presence in Bangkok and Bang Pla for the purpose he described. However, the response stated there was no documentation that personnel in his unit were exposed to Agent Orange while performing their daily duties and no documentation of the use, testing, spraying or storage of Agent Orange at Bangkok from May 4, 1968 through August 9, 1969. That being said, the Veteran signed a statement saying that his unit had been responsible for ensuring that radio antennas were functioning properly, and that Agent Orange was sprayed frequently to keep the antenna field clear. Photographic evidence shows that the Veteran's work site was at the permitter of the base. In this particular instance, the Board finds that the Veteran spent a considerable amount of time on the permitter of the base and draws upon the presumption afforded to military police who spent a considerable amount of time at the permitter of a military base. The Board sees no reason that this Veteran's time was not similar to military police's time on the permitter. Therefore, drawing upon the presumption afforded to other military personnel, the Board finds that the Veteran was exposed to Agent Orange or another similar herbicide agent. The second element is therefore satisfied. In September 2021, Dr. M.K. wrote a letter stating that Agent Orange is associated with many types of cancer. In support of his opinion, Dr. M.K. stated that soft tissue sarcomas, most hematologic neoplasms, and lower respiratory tract cancers are officially recognized as linked to herbicide exposure. Neuroendocrine cancer is listed as the cause of the Veteran's' death. According to Dr. M.K. small cell lung cancers is the most common type of neuroendocrine cancer. (Sometimes neuroendocrine cancers are called small cell cancers.) Dr. M.K.'s literature review found five studies indicating that there is an association between pesticides/herbicides and neuroendocrine or lung cancer, two negative or neutral studies, and three neutral or inconclusive reviews. As a result, Dr. M.K. stated it was as likely as not that pesticide exposure led to the Veteran's neuroendocrine cancer. Dr. M.K. bolstered his opinion by noting that there were "strong signs" that the Veteran's cancer originated in the Veteran's lungs. Signs included where the cancer metastasized and a TTF-1 staining positive. Therefore, Dr. M.K. opined that because the neuroendocrine tumor originated from the lungs, it would be presumptively associated with herbicide agent exposure. In further support of his opinion, Dr. M.K. wrote that cancer would not be expected to manifest within one year of service. Residuals of Agent Orange remain in the body for years, if not decades, after initial exposure. Dr. M.K.'s opinion is the only opinion on record that discusses Agent Orange agent exposure. Dr. M.K.'s opinion is balanced and credible. Therefore, the Board gives it great weight. The Board, grants service connection for the Veteran's neuroendocrine cancer. Cause of death Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). To establish entitlement to service connection for the cause of a Veteran's death, the evidence of record must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered as the principal (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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In the present case, neuroendocrine cancer, which is also small cell cancer, was the principal cause of the Veteran's death. The Veteran's death certificate lists neuroendocrine cancer as the cause of death. Given that service connection for neuroendocrine cancer is being granted, the appeal for service connection for the Veteran's cause of death is also granted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.