Citation Nr: 21072114 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-49 849 DATE: December 2, 2021 ORDER Service connection for pancreatic cancer is granted. FINDING OF FACT Resolving reasonable doubt in the appellant's favor, the Veteran's pancreatic cancer is etiologically related to exposure to environmental toxins during his active service. CONCLUSION OF LAW The criteria for service connection for pancreatic cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from July 1986 to November 1986 and on active duty from January 1991 to July 1991, with additional service in the Army Reserves. The Veteran died in August 2019. The Veteran's surviving spouse has been substituted as the appellant in this appeal. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2019, at which time the issue on appeal was remanded for further development. This case has been returned to the Board for further appellate action. Service Connection Pancreatic Cancer Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, established that the disease was incurred in service. 38 C.F.R. § 3.303(d). Based on the Veteran's active service in Saudi Arabia, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e)(2) (2020). Pancreatic cancer is not a disability that is presumptively associated with Persian Gulf service. However, when a clamed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by demonstrating that the disease was in fact "incurred" during service by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Prior to his death, the Veteran asserted that his pancreatic cancer was related to his active service. Specifically, the Veteran's representative asserted that he was exposed to oil fields and depleted uranium while serving in Southwest Asia during Desert Storm. In April 1991, the Veteran reported that he had 19 pounds of weight loss on his southwest asia demobilization and redeployment medical evaluation report. Subsequently, on a June 1991 Desert Shield/Storm out-processing checklist the Veteran reported that he had swollen glands for which the cause was unknown. In December 2016, a private oncologist, Dr. R.S., opined that the Veteran's past exposure to multiple environmental carcinogens during his Gulf War service could not be ruled out as a contributing factor to his diagnosis of pancreatic cancer. In December 2017, a private physician opined that the Veteran's pancreatic cancer was possibly related to exposure to toxins and burning oil in operation Desert Storm. In December 2017, another private physician, Dr. M.B., opined that the Veteran's diagnosis of adenocarcinoma of the pancreas was possibly related to his military service. In September 2018, the Veteran reported that he first started experiencing symptoms of pancreatic cancer in June 2014. In a July 2020 medical opinion, a VA examiner opined that it was less likely as not that the Veteran's pancreatic cancer was proximately due to or the result of exposures to environmental toxins and hazards during military service in the Persian Gulf. The VA examiner reasoned that prostate cancer is not a presumptive condition recognized by the VA as being caused by military service in Southwest Asia. The VA examiner also stated that there was no clear record of exposure that led to the development of prostate cancer in the Veteran's case. Additionally, the VA examiner stated that exact etiology of the Veteran's pancreatic cancer is unknown and cannot be gleamed from the available medical records. The VA examiner noted that common risk factors are obesity, tobacco use, family history of pancreatic cancer, and genetic predisposition, but stated that it was not known how many of those risks the Veteran had. In August 2020, a VA examiner opined that the Veteran's pancreatic cancer was at least as likely as not incurred in or caused by his active service. The VA examiner reasoned that the Veteran was exposed to environmental toxins during his service in the Persian Gulf and that those toxins are well documented to cause pancreatic cancer. In a January 2021 addendum opinion, a VA examiner opined that the Veteran's pancreatic cancer was less likely than not incurred in or caused by his active service. The VA examiner noted that the exact environmental exposures during service had not been documented. Additionally, the VA examiner stated that exposures to environmental toxins of any kind had not been determined by medical research and study to be causative for pancreatic cancer. The VA examiner noted that primary risk factors for pancreatic cancer are tobacco, cigarette use, alcohol consumption, obesity and high calorie diet, genetic predispositions, and familial syndrome. However, the VA examiner noted that the claims file was lacking information on any of those possible risk factors for Veteran, so his true risk factors and etiology for pancreatic cancer could not be determined. The VA examiner also assessed that the July 2020 and August 2020 medical opinions were not valid. The Board initially notes that the favorable December 2016 and December 2017 private medical opinions do not contain supporting rationale and are speculative in nature due to their use of the language "possibly related." The July 2020 VA medical opinion is contradictory in nature, as it states that the etiology of the Veteran's pancreatic cancer is unknown and cannot be determined from the Veteran's medical records yet opines that the pancreatic cancer was not caused during his active service. The August 2020 VA examiner failed to elaborate on the medical research and studies documenting the association between environmental toxins and pancreatic cancer. The January 2021 VA medical opinion is contradictory in nature for the same reasons as the July 2020 opinion, as it states that the etiology of the Veteran's pancreatic cancer cannot be determined yet opines that the pancreatic cancer was not caused during his active service. Additionally, the VA examiner failed to provide any rationale regarding the disparities in relation to the August 2020 examiner's finding that environmental toxins were "well-documented" to cause pancreatic cancer. Further, the examiner based his opinion partially on a lack of evidence in the Veteran's service treatment records. The Board also acknowledges the VA examiner's assessment as to the probative value of the July 2020 and August 2020 medical opinions. However, the sufficiency of the record is a legal determination reserved for the Board and an insufficient basis on which to premise a medical opinion. In short, the Board acknowledges that none of the medical opinions of record are flawless. However, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary is required to give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Board finds that the August 2020 VA medical opinion, in combination with the positive etiological opinions from December 2016 and December 2017, to include the positive etiological opinion from a private oncologist, bring the evidence for and against the Veteran's claim at least into relative equipoise. Accordingly, resolving reasonable doubt in the appellant's favor, service connection for pancreatic cancer is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.