Citation Nr: 21073541
Decision Date: 12/09/21	Archive Date: 12/09/21

DOCKET NO. 05-37 934
DATE: December 9, 2021

ORDER

Entitlement to service connection for the cause of the Veteran's death is denied.

FINDING OF FACT

1. The Veteran died in November 2004. The death certificate lists the cause of death as generalized carcinomatosis due to metastatic cancer to the liver from an unknown primary site. 

2. At the time of his death, the Veteran did not have any service-connected disabilities.

3. The competent evidence does not demonstrate that the Veteran's death was related to his active duty service, to include his conceded exposure to herbicide agents. 

CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.300, 3.307, 3.309, 3.312.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service from February 1951 to February 1972.

The Veteran died in November 2004. The Appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Appellant testified before the undersigned Veterans Law Judge (VLJ) during a January 2009 Board hearing. A copy of the hearing transcript has been reviewed and associated with the claims file.

In a March 2009 decision, the Board denied service connection for the cause of the Veteran's death. The Appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The Court granted a joint motion for remand (JMR) in August 2010, vacating the Board's March 2009 decision and remanding the matter.

This matter was agin before the Board in January 2011, August 2014, and June 2015, and was remanded each time for evidentiary development. In October 2016, the Board issued another decision denying service connection for the cause of the Veteran's death. The Appellant again appealed the Board's decision to the Court, which granted another JMR vacating the Board's decision and remanding the issue in June 2017.

This matter was again remanded by the Board in November 2017 for development. The Board denied service connection for the cause of the Veteran's death again in December 2018, and the Appellant again appealed the Board's decision to the Court. In April 2020, the Court issued a memorandum decision that vacated the Board's November 2017 decision. 

This matter was again before the Board in March 2021 and July 2021, and it was remanded both times for further development.

Entitlement to service connection for the cause of the Veteran's death

Dependency and indemnity compensation (DIC) may be awarded to a veteran's surviving spouse, children, or parents for death resulting from a service-connected disability. 38 U.S.C. § 1310; see also Hanna v. Brown, 6 Vet. App. 507, 510 (1994). DIC benefits are thus predicated upon an adjudicatory finding that service connection for the cause of the veteran's death is warranted. Before an award of DIC may be made, therefore, service connection for the cause of the veteran's death must be established.

To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal 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.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Where a veteran served 90 days or more during a period of war and certain chronic diseases, including cancer, become manifest to a compensable degree 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 may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A veteran who, during active service, 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 during such service 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 C.F.R. § 3.307(a). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. Further, in certain circumstances, veterans who served in vessels in the inland waterways of Vietnam were exposed to herbicides. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).

If a veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 38 C.F.R. § 3.309(e). The National Defense Authorization Act for Fiscal Year 2021 added parkinsonism, bladder cancer, and hypothyroidism to the list of diseases presumptively associated with exposure to herbicide agents. See 38 U.S.C. § 1116(a)(2).

The list of diseases that are presumed to be related, or due to, herbicide exposure is updated by the Secretary based on information provided by the National Academy of Sciences (NAS). The Secretary of VA 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. Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924 - 47,928 (Aug. 10, 2012). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). 

When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). 

Lay evidence can be competent and sufficient to establish a diagnosis of a condition where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In claims for benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Appellant asserts that she is entitled to DIC benefits because the Veteran's death was related to his active duty service, to include as caused by his conceded exposure to herbicide agents.

The Veteran's death certificate lists the cause of death as generalized carcinomatosis due to metastatic cancer to the liver from an unknown primary site. Emphysema and smoking are listed as other contributing factors to his death. At the time of his death, the Veteran did was not service-connected for any disabilities.

The Veteran's service treatment records are silent for any evidence of any type of cancer existing prior to or during service. His service treatment records are negative for any prostate, colon, or liver problems. His separation examination in August 1971 was clinically normal, though shortness of breath with smoking was noted in the report of medical history.

In August 2003, the Veteran had blood work done that showed an elevated prostate-specific antigen (PSA) level of 5.4. In November 2003, the doctor discussed the possibility of prostate cancer and recommended a prostate biopsy. The doctor did not diagnose prostate cancer at that time. A VA treatment note form January 2004 indicates that the Veteran told the doctor he did not wish to have a prostate biopsy, even after the doctor told him that without it, they would be unable to detect prostate cancer. 

In October 2004, the Veteran had a scan of the abdomen which showed extensive liver metastatic disease with probable metastases in the right lung as well. A liver biopsy was performed and the tissue was positive for malignancy and findings compatible with adenocarcinoma. Another October 2004 treatment note indicates that he had occult blood in his stool. The Veteran was referred to Dr. P.V., an oncologist, for follow-up.

In November 2004, the Veteran was diagnosed with metastatic liver disease, with a liver lesion compatible with a colonic primary. The following day, a CT scan of the abdomen showed diffuse metastatic liver disease with multiple masses in the right and left lobe. Examination of the prostate revealed calcifications with no peripheral masses identified. A bone scan showed increased uptake in the superior right scapular area, indicating metastatic disease. His CT scan notes denote a history of colon cancer.

In an April 2005 letter, Dr. V. stated that he diagnosed the Veteran with metastatic cancer to the liver from an unknown primary in October 2004. 

In February 2006, Dr. V. submitted another letter indicating his conclusion that the Veteran's cancer originated either in the colon or in the prostate gland before metastasizing to the liver. He indicated that the Veteran's elevated PSA level suggests that the cancer began in the prostate gland. He indicated that another possibility is metastatic colon cancer because most cancerous lesions in the liver originate from the colon.  He also indicated that he believes the Veteran's cancer is related to the Veteran's herbicide agent exposure.

A VA medical opinion was obtained in March 2006, wherein the examiner opined that the Veteran's death was less likely than not related to prostate cancer. In support of this opinion, the examiner stated that a November 2004 prostate ultrasound showed calcification in the prostate gland, but no masses or abnormalities and that the Veteran's elevated PSA levels were likely due to inflammation. He stated that medical records indicate the most likely primary source of cancer being the colon because the liver biopsy was morphologically consistent with a colonic primary. He acknowledged that the Veteran's records showed some suggestion of metastasis to the tip of the scapula but opined that this was likely not related to prostate cancer because prostate cancer usually metastasizes to large bones, not small bones. The examiner also noted the inconsistencies in Dr. V.'s reporting, as his November 2004 treatment records indicate probable colon cancer with metastasis to the liver, but Dr. V. stated the primary source of the cancer was unknown.

In an August 2006 letter, Dr. V. wrote that he had intended to perform a bone scan to document the presence of metastatic cancer, but the Veteran passed away before the scan could be performed. Thus, he indicated that there is "no 100% scientific proof" but that his clinical suspicion that the Veteran's cancer began in the prostate is "very strong."

Dr. V. submitted another letter in June 2008 to amend and clarify his prior statements. He indicated that, based on his clinical observation, the Veteran had prostate cancer, which contributed to his death. He stated that the Veteran's abnormal PSA level of 5.4 means that he more likely than not had prostate cancer prior to his death.

In December 2010, the Appellant submitted additional argument and evidence in support of her claim for DIC benefits. The evidence includes a copy of Dr. V.'s medical credentials, an article examining the accuracy of cancer death certificates and its effect on cancer mortality statistics, a study showing an increased risk of soft tissue sarcoma following exposure to herbicide agents, an article reporting the occurrence of primary liver cancer may be due to viral infections or dioxin exposure, a report detailing an association between adverse health effects and exposure to herbicide agents, and an article reporting the addition of soft tissue sarcomas to the list of diseases presumptively related to herbicide agent exposure.

Another VA medical opinion was issued in October 2011. The examiner stated that there is no conclusive evidence to support Dr. V.'s statements that the Veteran had prostate cancer. She stated that his treatment notes show that he had occult blood in feces, which is very common in colon cancer, but do not mention hematuria, which is most common in prostate cancer. She also indicated that one of the primary organs for colon cancer metastases is the liver, while prostate cancer most commonly metastasizes to regional and distant bones such as the pelvis and vertebrae.

Another VA opinion was issued in October 2014, wherein the examiner opined that the cause of the Veteran's death was less likely than not related to his active duty service. He stated that the Veteran's records are silent for a diagnosis of carcinomatosis during his active duty service or within one year following his separation from service. He also disagreed with Dr. V.'s diagnosis of prostate cancer, as Dr. V.'s statements were inconsistent, the Veteran did not receive a prostate cancer diagnosis prior to his death, and no masses or abnormalities were found on the November 2004 ultrasound. The examiner stated that prostate cancer preferentially metastasizes to bones and that early involvement of other sites in the body is uncommon.

An additional VA opinion was obtained in September 2015. The examiner stated that the Veteran's death was less likely than not related to prostate cancer, as he had no diagnosed prostate cancer at the time he was found to have the liver metastatic lesions that led to his death. 

Another VA medical opinion was issued in February 2018. The examiner opined that it is more likely than not that the Veteran had a diagnosis of colon cancer at the time of his death. However, he opined that the primary colon cancer is less likely than not related to the Veteran's active duty service, including as caused by his conceded exposure to herbicide agents. In support of this opinion, the examiner noted that the Veteran was not diagnosed with cancer during service or within one year of his separation and no known association between herbicide exposure and the development of colon cancer exists. He indicated that the known risk factors for colon cancer include a diet high in fat and low in fiber, heredity, diabetes, tobacco use, and excess consumption of alcohol and/or processed meat.  The examiner addressed the evidence submitted by the Appellant in December 2010. He did not refute the findings of the submitted evidence but indicated that not all of the evidence is relevant to the present claim. He had no rebuttal to the article describing inaccuracies on cancer death certificates and their effect on cancer mortality statistics but stated that the cause of death listed on the Veteran's death certificate is accurate and there is no issue as to the cause of death. He also expressed no disagreement with the articles discussing causes of primary liver cancer but indicated that, based on the Veteran's liver biopsy, his liver cancer was from metastasis and not a primary liver cancer.

An addendum medical opinion was issued in September 2018. The examiner opined that the Veteran's colon cancer is less likely than not related to his active duty service. First, he explained that colon cancer is not a soft tissue sarcoma. He also indicated that the Veteran's service treatment records are silent for a diagnosis of colon cancer, and there is no evidence of colon cancer within one year of his discharge. Additionally, the examiner explained that a review of medical literature did not reveal a causative relationship between herbicide agents and colon cancer.

Another VA opinion was issued in March 2021. The examiner again opined that the Veteran's colon cancer is less likely than not related to his active duty service. He stated that, while studies have shown that exposure to certain pesticides may be a risk factor for colon cancer, the same has not been shown with herbicide agents. He indicated that the major risk factors for colon cancer include heredity and a history of polyps or ulcerative colitis.

The March 2021 examiner issued an addendum opinion in April 2021. He stated that colon cancer and herbicide agents are unlikely to be related and that colon cancer is not a soft tissue sarcoma. He reiterated previous statements that the Veteran's cancer was not diagnosed during service or within one year of his separation from service. He stated that the Veteran's service treatment records do not show any of the risks associated with colon cancer, such as a high fat and low fiber diet, and that he denied a family history of cancer.

A final VA medical opinion was issued in October 2021. The examiner stated that the known risk factors for colon cancer, including diet, genetics, inflammatory bowel disease, abdominal radiation, obesity, diabetes, tobacco, alcohol, and processed meat, are all not directly related to his active duty service because they relate to genetically inherited factors, lifestyle considerations, and other factors unrelated to the Veteran's health and medical conditions. He opined that the Veteran's colon cancer is less likely than not related to the Veteran's conceded herbicide agent exposure. He stated that colon cancer is not on the list of diseases presumptively related to herbicide agent exposure and that medical studies have not found a causal link between the two. He also noted that the Veteran's death certificate listed emphysema and smoking as other significant conditions contributing to death. He cited an article supporting a connection between smoking and colorectal cancers and opined that, since the Veteran smoked sufficiently to develop emphysema and was oxygen dependent, the smoking is at least as likely as not substantial enough to significantly increase the risk of colon cancer. 

After considering the relevant evidence of record, the Board finds that service connection is not warranted for the cause of the Veteran's death. In this regard, the preponderance weighs against a finding that the cancer that led to his death was incurred during service or is otherwise related to his active duty service, to include his exposure to herbicide agents.

First, the Board finds that presumptive service connection is not warranted for a chronic disease. While malignant tumors are on the list of chronic diseases subject to presumptive service connection, the Veteran's medical records do not demonstrate that he had any malignant tumors that manifested to a compensable degree within one year of his separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Next, the Board finds that presumptive service connection is not warranted based on the Veteran's conceded exposure to herbicide agents. In this regard, the preponderance of the evidence weighs against a finding that the Veteran had prostate cancer or a soft tissue sarcoma. Additionally, carcinomatosis, metastatic liver cancer, emphysema, and colon cancer are not on the list of diseases presumptively related to herbicide agent exposure. See 38 C.F.R. § 3.309(e).

Prostate cancer is a disease presumptively related to herbicide agent exposure. Id. However, the preponderance of the evidence weighs against a finding that the Veteran had a diagnosis of prostate cancer at the time of his death. Although he was shown to have an elevated PSA level and calcification in the prostate gland, he was not diagnosed with prostate cancer. Dr. V. stated that the primary source of his liver metastasis was likely the prostate or colon, and later amended his opinion to indicate that the Veteran did have metastatic prostate cancer. However, his opinion has been inconsistent and is contradicted by the medical evidence and by subsequent medical opinions. In November 2004, Dr. V. diagnosed metastatic colon cancer to the liver. He subsequently indicated that the primary cancer was unknown, that the prostate and colon were both possible primaries, and later that he had a strong belief of a prostate primary. He provided little support for his conclusion other than the findings of an elevated PSA level and prostate calcification. The March 2006 VA examiner opined that the elevated PSA level was most likely due to inflammation and that the possible metastasis to the tip of the scapula is not an indication of prostate cancer because prostate cancer preferentially metastasizes to large bones. He also stated that the liver biopsy was morphologically consistent with a colonic primary.  The October 2011 VA examiner also refuted Dr. V.'s opinion regarding prostate cancer, stating that occult blood in feces and liver metastasis are both common for colon cancer and that hematuria and metastasis to regional and distant bones, common with prostate cancer, were not shown. The October 2014 and September 2015 VA examiners concurred that it is less likely than not that the Veteran had prostate cancer. Therefore, the Board finds that the preponderance of the evidence weighs against a diagnosis of prostate cancer and presumptive service connection is not warranted. 38 C.F.R. § 3.307(a)(6), 3.309(e).

In reaching this determination, the Board assigns greater weight to the various VA medical opinions than to Dr. V.'s statements. See Owens, 7 Vet. App. at 433. This is because Dr. V.'s opinions have been inconsistent and his determination that the Veteran had prostate cancer is speculative and not supported by a well-reasoned rationale. The Veteran's treatment notes indicate that his liver metastasis was consistent with a colonic primary, and he was not diagnosed with prostate cancer prior to his death. The March 2006 examiner explained that the Veteran's elevated PSA level and prostate calcification are not indicative of prostate cancer, and the October 2011 examiner opined that the clinical findings were consistent with a colonic primary and not a prostate primary. Thus, Dr. V.'s statements are afforded less evidentiary weight.

The Board also finds that presumptive service connection is not warranted for the cause of the Veteran's death based on his carcinomatosis, metastatic cancer to the liver, or colon cancer because none of these diseases are on the list of diseases presumptively related to exposure to herbicide agents. See 38 C.F.R. § 3.309(e). The Appellant has argued that the Veteran's cancer should be considered a soft tissue sarcoma. However, the September 2018 and April 2021 examiners explained that colon cancer is not a type of soft tissue sarcoma. The September 2018 examiner stated that soft tissue sarcomas are a relatively rare group of cancers in body tissues such as muscle, fat, blood and lymph vessels, and connective tissue and includes liposarcoma, leiomyosarcoma, undifferentiated pleomorphic sarcoma, gastrointestinal stromal tumor, synovial and myxofibrosarcoma. The Appellant has not shown that she has the medical training necessary to render a diagnosis of soft tissue sarcoma, and the Veteran's treatment records do not otherwise indicate such a diagnosis. Therefore, the Board concludes that the Veteran did not have a diagnosed soft tissue sarcoma, and presumptive service connection for the cause of the Veteran's death is not warranted based on his exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6), 3.309(e).

The Board also finds that service connection for the cause of the Veteran's death is not warranted on a direct basis. In this regard, the evidence is insufficient to establish that any of the causes contributing to his death were incurred during service or are otherwise etiologically related to his service, including his conceded exposure to herbicide agents. His service treatment records are silent for carcinomatosis, colon cancer, or liver metastatic disease or cancer, and he was not diagnosed with any of these diseases for more than 30 years following his separation from service. As indicated by the February 2018 VA examiner, there is no known association between exposure to herbicide agents and the development of colon cancer. Although the Appellant has submitted evidence supporting a relationship between dioxins and primary liver cancer, the February 2018 examiner also explained that such evidence is inapplicable to this case because the Veteran's liver cancer was due to metastasis and was not a primary liver cancer. The September 2018 examiner stated that a review of medical literature did not support a causative relationship between herbicide agent exposure and colon cancer. The March 2021 also stated that, while certain pesticides may create a risk of developing colon cancer, such risk has not been associated with herbicide agents. The October 2021 also noted the lack of medical evidence supporting a link between herbicide agents and colon cancer and opined that the Veteran's history of smoking likely played a part in the development of colon cancer. The Veteran's August 1971 report of medical history shows a history of smoking during service and his death certificate lists smoking and emphysema as contributing factors to his death, the Board notes that VA regulations preclude service connection for disabilities etiologically related to smoking. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300.

In sum, the weight of the evidence supports a finding that the Veteran's liver cancer metastasized from a colonic primary cancer, rather than from the prostate gland, and the preponderance of the evidence weighs against a finding that his colon cancer with metastasis to the liver was incurred during service or within one year of separation or is otherwise etiologically related to his active duty service, including conceded herbicide agent exposure. 

In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. Accordingly, the Board finds that service connection for the cause of the Veteran's death is not warranted.

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Pratt

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.