Citation Nr: 21069072 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-02 910 DATE: November 17, 2021 ORDER Service connection for the cause of the Veteran's death is granted. FINDING OF FACT The Veteran's stomach cancer was etiologically related to his military service, including exposure to herbicide agents in Vietnam; this disability contributed materially to his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5103A, 5107; 38 C.F.R. §§ 3.310, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1969 to January 1971, including foreign service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and Republic of Vietnam Meritorious Unit Commendation Gallantry Cross with Palm. The Veteran died in November 2009, and the appellant is his surviving spouse. The appellant offered testimony during a June 2020 videoconference hearing. A transcript of this proceeding has been associated with the record. This appeal was then remanded by the Board in September 2020 to obtain a VA nexus opinion. Such opinions were obtained in November 2020, January 2021, and September 2021. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Cause of Death The appellant is pursuing service connection for the cause of the Veteran's death. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred or aggravated in service either caused or contributed substantially or materially to cause of death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For the disability to constitute a contributory cause, 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 U.S.C. § 1310; 38 C.F.R. § 3.312. It must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease, or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). Therefore, resolution of this appeal is two-fold: (i) Did a service-connected disability cause the Veteran's death, or (ii) were the causes of his death entitled to service connection? On the first point, the Veteran was service-connected for posttraumatic stress disorder (PTSD) at the time of his death. However, the appellant neither contends, nor is there evidence to the contrary, that this disability was etiologically related to the Veteran's death. Thus, the appeal does not succeed on this basis. Rather, the appellant contends that the Veteran died from stomach cancer for which service connection is warranted due to in-service herbicide exposure. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The first two elements of direct service connection are easily met in this case, as private treatment records show that the Veteran was diagnosed with stomach cancer in March 2009. He also served in Vietnam during the regulatory period, such that his in-service exposure to herbicide agents is presumed. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307, 3.309; see also September 2012 rating decision ("the Veteran served in Vietnam and we concede that the Veteran was exposed to herbicide agents . . ."). Thus, the remaining question is whether the Veteran's stomach cancer was etiologically related to his in-service herbicide exposure. There are multiple opinions of record for review. Weighing in favor of the appeal is a May 2009 private treatment letter which states that: "Since [the Veteran] has been exposed to Agent Orange, it is probable that it may be responsible for the development of the gastric cancer." In a subsequent September 2009 letter, the same private examiner opined that "[the Veteran] has been exposed to Agent Orange that, I believe, is responsible for the development of the gastric cancer." By way of rationale, the examiner noted that gastric cancer is uncommon in the United States, and for the Veteran to have developed such a rapidly growing cancer at such a young age was unusual and caused a suspected relationship to his in-service Agent Orange exposure. In contrast, a November 2020 VA examiner opined that the Veteran's stomach cancer was less likely than not related to his service. Here, the examiner listed a series of factors known to contribute to the development of stomach cancer, including various gastric conditions including ulcers and polyps; smoking; obesity; diet; surgical history; blood type; viral infections; genetics; and occupational/environmental exposures. In this case, medical records show that the Veteran has a history of peptic ulcer disease and smoking, and do not establish a cause of gastric cancer other than these two conditions, which were diagnosed after his military separation. The examiner also cited to a September 2012 rating decision which stated that the Veteran's causes of death (specifically, metastatic gastric cancer with bowel obstruction and malnutrition) are not presumptively linked to herbicide exposure. In a January 2021 addendum opinion, the same VA examiner addressed the September 2009 positive opinion, and concluded that with "so many diseases and illnesses linked to Agent Orange, it's impossible to single out specific symptoms." For example, those associated with chronic B-cell leukemia are different than those associated with prostate cancer, yet both conditions are presumptively linked to herbicide exposure under VA regulations. However, there are no tests to determine herbicide exposure, which is why VA presumes that all Vietnam veterans who served during a particular timeframe were exposed. Other cancers associated with Agent Orange exposure include Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, respiratory cancers, and soft-tissue sarcomas, in addition to other illnesses which VA presumptively links to such exposure. Thus, there is "no medical literature review" that supports that stomach cancer is a complication of, or caused by, Agent Orange exposure. A separate VA examiner offered an opinion in September 2021. Therein, the examiner did not select a statement which most closely approximates the etiology of the claimed condition. However, the examiner did note that "[e]verything was reviewed" and there were three factors raised "to justify linking [A]gent [O]range with the development of poorly differentiated [adeno]-carcinoma in the stomach: relatively young age, aggressive course, [and] rarity of disease." These concerns are not "dispositive," whether individually or in the aggregate, and there was nothing unusual when considering the aggressive treatment provided. Additionally, there was no medical literature cited to overcome the customary VA criteria, such that the linkage referenced in the private treatment letters was not supportable. Each of the above opinions contains notable strengths and weaknesses. Regarding the May and September 2009 private treatment letters, each contains a positive nexus opinion offered by a medical expert with direct and longstanding knowledge of the Veteran's medical and military histories. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). The latter specifically contemplates the unique nature of the Veteran's specific cancer in support of the positive opinion, and there is no evidence that the examiner misstated any relevant facts in providing their opinions. However, the language used by the examiner in both letters supports only a possible nexus between the Veteran's cancer and military service, as opposed to a definitive link, and is supported by a fairly cursory rationale. In contrast, the November 2020, January 2021, and September 2021 VA opinions are more definitive in nature and supported by more detailed rationales. Id. However, these opinions are based largely on the premise that a link is not present simply because the Veteran's specific cancer is not included on VA's presumptive list of diseases. This premise has no probative value, as the VA regulations are meant only to embody those illnesses with such definitive links to herbicide exposure that their etiologies may be presumed, without precluding the possibility that additional disabilities may be established on a case-by-case basis. These opinions also seemingly imply that there is absolutely no medical literature to support a link between stomach cancer and herbicide exposure, when the Board's own research clearly contradicts such a finding. See, e.g., https://www.ncbi.nlm.nih.gov/books/NBK219653/ (last accessed November 9, 2021). In considering the above, the Board finds that the positive and negative opinions hold equal probative weight in this case. Thus, the evidence is in equipoise, and the benefit of the doubt must be resolved in the appellant's favor. In so finding, a nexus is established between the Veteran's fatal stomach cancer and his military service. See death certificate (recording metastatic gastric cancer as the Veteran's immediate cause of death). Accordingly, the appeal seeking service connection for the cause of the Veteran's death is hereby granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.