Citation Nr: 21069274 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-00 618 DATE: November 18, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in November 2014, and his death certificate listed as the only cause of death metastatic esophageal cancer with metabolic encephalopathy. 2. At the time of his death, the Veteran was not service connected for any disability. 3. The preponderance of the evidence of record fails to demonstrate that the cause of the Veteran's death was related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1964 to May 1967, to include verified service in the Republic of Vietnam from November 1066 to May 1967. See Military Personnel Record (rec'd June 24, 2015 ). The Veteran was also awarded the Vietnam Service Medal and Vietnam Campaign Medal. See Form DD-214 (rec'd June 10, 2015 ). The Veteran died in November 2014, and his surviving spouse is the appellant who filed this claim. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This claim was initially denied by the Board on May 21, 2020, but that denial was vacated by a Joint Motion for Remand (JMR) granted by the Court of Appeals for Veterans Claims (Court) on April 13, 2021. By the JMR, vacatur of the May 21, 2020 Board decision was because the January 17, 2020 VA examination failed to address the relevance or lack thereof of correspondence from Dr. D.G., MD received December 30, 2016. See Court JMR ( April 13, 2021 ); BVA (First, Vacated) Decision ( May 21, 2020 ); VA Exam ( Jan. 17, 2020 ); Medical Treatment Record (rec'd Dec. 30, 2016 ). To comport with the JMR, the Board remanded the claim on July 30, 2021 for the requested addendum opinion incorporating Dr. D.G.'s memorandum as received on December 30, 2016. See BVA Remand ( July 30, 2021 ). An appropriate addendum opinion was obtained on September 21, 2021. See VA Exam ( Sept. 21, 2021 ). The appellant was then issued a Supplemental Statement of the Case (SSOC) on September 22, 2021. See SSOC (Sept. 22, 2021). The Board concludes that the appellant has been afforded substantial compliance with all remand directives, see Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board accordingly reasserts jurisdiction. 1. Entitlement to service connection for the cause of the Veteran's death is denied. The appellant seeks dependency and indemnification benefits as the surviving spouse of the Veteran. She contends, in essence, that the Veteran's esophageal cancer which caused his death was due to exposure to Agent Orange. See June 2015 statement. Alternatively, she asserted that the Veteran's prostate cancer substantially contributed to his death because the prostate cancer and treatment for the condition weakened his immune system, which impacted the approved medication and treatment options for his esophageal cancer, which resulted in his death. See July 2016, December 2016 and April 2017 statements. The Veteran's cause of death, as listed on his death certificate, is metastatic esophageal cancer with metabolic encephalopathy. See Death Certificate (Nov. 2014) (rec'd June 10, 2015 ). There is no notation of prostate cancer as an underlying cause of death, nor is it mentioned as a significant condition contributing to death. See id. at Question No. 33, Parts 1 and 2 et seq. Additionally, at the time of his death, the Veteran was not service connected for any disability. 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. As noted above, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). Moreover, where a veteran served continuously for 90 days or more during active service, and cancer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for certain specified diseases, such as prostate cancer, may be granted on a presumptive basis if the veteran served during specified time periods, was exposed to an herbicide agent and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. § 3.307(a)(6), 3.309(e). A veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In this case, the appellant has asserted that the Veteran was diagnosed with prostate cancer, and that his history of prostate cancer rendered him ineligible for a certain treatment for esophageal cancer. The Veteran's military service records and DD Form 214 confirm his presence in Vietnam while on active duty. For this reason, it is presumed that he was exposed to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(iii). The appellant has not asserted, nor does the record suggest, that esophageal cancer was present in service or that the cause of the Veteran's death is directly related to service based on actual causation. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Indeed, the Veteran's service treatment records are silent for any complaints, treatment or diagnosis related to the esophagus, and his May 1967 separation examination was normal with no defects noted. Further, on the accompanying report of medical history, the Veteran described his health as good and denied stomach, liver, intestinal and digestive trouble. The first post-service evidence of esophageal cancer is in 2012, which is more than four decades after the Veteran separated from service. The medical evidence of record does not show, or otherwise suggest, that the Veteran's esophageal cancer is related to service. Accordingly, service connection for the cause of death is not warranted on a direct basis. Service connection is also not warranted on a presumptive basis. The record does not show evidence of cancer within one year of the Veteran's May 1967 discharge from service. See 38 C.F.R. §§ 3.307, 3.309(a). Further, esophageal cancer is not included in the list of presumptive conditions at 38 C.F.R. § 3.309(e), and the Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Thus, presumptive service connection based on the Veteran's immediate cause of death is not warranted as there is no relationship between esophageal cancer and exposure to herbicide agents. See 38 C.F.R. § 3.307(a)(6) and 3.309(e). The Board notes that, although the Veteran was not service-connected for prostate cancer at the time of his death, prostate cancer could be presumptively service-connected based on exposure to herbicide agents but is not warranted in this case. See 38 C.F.R. § 3.309. However, the most probative evidence is against finding that the Veteran's prostate cancer caused or substantially or materially contributed to his death. A December 2016 statement from the Veteran's private medical provider stated that he treated the Veteran for esophageal cancer, which later became metastatic and eventually caused his demise. He stated that the cancer was extremely aggressive and the Veteran had received a high dose of chemotherapy and that, due to the Veteran's history of prostate cancer, he did not qualify for a potential clinical trial which could potentially have improved his survival, although it was not curative. He noted that prostate cancer was diagnosed in 2009 and treated with radiation therapy and anti-androgen therapy. The statement did not link the Veteran's death to his prostate cancer or suggest that the Veteran's esophageal cancer resulted from, or was aggravated by, his prostate cancer. With regards to nexus, a September 2021 VA examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran's prostate cancer caused the Veteran's esophageal cancer which ultimately resulted in the Veteran's death. The examiner noted that according to Dr. G., the Veteran's prostate cancer had been in remission during the treatment of his esophageal cancer and that the clinical trial personnel stated in October 2014 that the Veteran was eligible for enrollment in a clinical trial with an orally administered inhibitor of P13K and mTOR, MLN0128 which is in direct contradiction to Dr. G.'s statement of the potential for a clinical trial although he did not qualify for that. The examiner noted that, two weeks later, clinical trial personnel at the Mary Crowley Research Center stated that the Veteran was no longer eligible due to his electrocochleography (ECOG) status has declined just in the last week since Friday and that Dr. G. had agreed that because of poor performance status, he was not considered to be a candidate for clinical trial in November 2014. The examiner noted that the Veteran's functional performance declined to a level that he was no longer eligible for the clinical trial per the Mary Crowley Research Center and Dr. G. himself, which is in direct contradiction to the 2016 statement by Dr. G. that "[p]art of the reason [the Veteran] did not qualify for his clinical trial was that he had a history of another cancer, namely prostate cancer that was diagnosed in 2009 and treated with radiation therapy and anti-androgen therapy." The examiner therefore opined that it was less likely than not (less than a 50 percent probability) that the Veteran's prostate cancer substantially or materially contributed to the Veteran's esophageal cancer, which ultimately resulted in the Veteran's death. The Board affords great probative value to the September 2021 VA etiology opinion. The VA examiner is a competent medical professional who is able to opine as to the etiologies of the Veteran's cancers, to include whether any of them can be attributed to his service. The opinion is entitled to probative value as it is based on a thorough review of the Veteran's medical history, and it includes a complete and clear rationale that fully addressed the issues raised. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, as the September 2021 etiological opinion specifically considers and weighs the December 2016 letter from Dr. D.G., the Board concludes that the appellant has been afforded substantial compliance with all previous remand directives. See Stegall, supra. There are no contrary probative opinion of record. The Board notes that a January 2020 VA etiology opinion was found to be inadequate in the April 2021 JMR. The Board is sympathetic to the appellant's belief that service connection for the cause of her husband's death is warranted, including her belief that his prostate cancer contributed to his death by weakening his immune system and impacting his treatment options. However, as a lay person, she has not been shown to have the specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide a medical diagnosis). Thus, her opinion regarding the cause of the Veteran's death is not competent medical evidence. The Board finds the VA examiner's opinion and objective medical evidence more probative and persuasive than the lay assertions. In summation, the preponderance of the evidence is against a finding that the Veteran's cause of death was related to his military service, to include presumed exposure to herbicide agents. Consequently, entitlement to service connection for the cause of the Veteran's death is not warranted. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.