Citation Nr: 21075800 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-39 231 DATE: December 21, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) benefits, to include service connection for the Veteran's cause of death, is denied. FINDING OF FACT 1. The Veteran died in March 2016. The death certificate lists the cause of death as adenocarcinoma of the esophagus metastatic to bone. 2. During the Veteran's lifetime, he was not service-connected for any condition. 3. The preponderance of the evidence fails to establish an etiological relationship between the Veteran's adenocarcinoma of the esophagus metastatic to bone and active-duty service, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1965 to October 1968, including service in the Republic of Vietnam. The Veteran has been awarded the Vietnam Service Medal, the Vietnam Cross of Gallantry with Palm Device, and the Vietnam Campaign Medal. The Veteran died in March 2016, and the Appellant is his surviving spouse. In February 2020, the Board remanded this matter to obtain a VA medical opinion. As the VA medical opinion has been obtained, there has been substantial compliance with the prior remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to Dependency and Indemnity Compensation benefits, to include service connection for the Veteran's cause of death The Appellant contends that she is entitled to Dependency and Indemnity Compensation (DIC) benefits due to the Veteran's death, which she believes is related to her husband's presumed exposure to herbicides during service in the Republic of Vietnam. The Veteran's March 2016 Certificate of Death shows he died naturally from adenocarcinoma of the esophagus metastatic to the bone. Service Connection for 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 C.F.R. § 3.312(a). To establish service connection for the cause of a Veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. A service-connected disability will be considered as the principal, or 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. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; 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(c)(1); Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Evidence and Analysis The Veteran's in-service exposure to herbicide agents is presumed based on his service in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Although adenocarcinoma is not listed among the diseases that are presumed to be associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e), the Veteran may still be entitled to service connection on a direct basis. See Combee v. Brown, 24 F.3d 1039 (Fed. Cir. 1994). In September 2016, the Veteran's private physician submitted a June 2016 letter on the Veteran's behalf. The private physician opined that the Veteran's exposure to herbicide agents more likely than not caused his esophageal cancer. However, the Board notes that the private physician did not provide any rationale as to how he came to the conclusion other than speculating that the Veteran did not have a lifestyle that put him at risk for esophageal cancer on any basis. Pursuant to the February 2020 remand, a VA medical opinion was obtained in May 2020. The May 2020 VA examiner reviewed the Veteran's medical history and found that the Veteran's esophageal cancer is less likely than not due to, or the result of, his military service, to include as due to his exposure to herbicide agents. The VA examiner acknowledged the private physician's letter stating that the Veteran's esophageal cancer was caused by exposure to Agent Orange in the service. The VA examiner also acknowledged the opinion that the Veteran had no other risk factors for the development of esophageal cancer, and that the Veteran's only risk factor for adenocarcinoma of the esophagus was exposure to Agent Orange. The VA examiner disagreed with these opinions. The VA examiner stated that there is not sufficient evidence to link adenocarcinoma of the esophagus to Agent Orange exposure. The VA examiner found that the Veteran did have significant risk factors for the development of adenocarcinoma of the esophagus. The examiner noted that an endoscopy performed in January 2015, at which time the Veteran's cancer was diagnosed, showed changes of Barrett's esophagus. In addition, an endoscopy performed in September 2015, after the Veteran had completed chemoradiation to treat his unresectable adenocarcinoma of the esophagus, showed changes of chronic gastroesophageal reflux disease (GERD), erosive esophagitis, and peptic stricture. GERD is a known risk factor for the development of adenocarcinoma of the esophagus. Of greater significance, Barrett's esophagus is a more potent risk factor for the development of adenocarcinoma of the esophagus. Clinical evidence and the medical literature support the concept that adenocarcinoma of the esophagus develops from Barrett's esophagus through a step wise series of mutations, with progression of non-dysplastic Barrett's esophagus to more advanced stages of dysplasia, and ultimately adenocarcinoma. The examiner concluded that the Veteran's picture is entirely consistent with the well-documented progression of GERD to erosive esophagitis, Barrett's esophagus, and ultimately adenocarcinoma, and occurred as an event unrelated to herbicide agent exposure In March 2020, the same private physician who submitted the June 2016 letter submitted another letter on the Veteran's behalf. The private physician restated his opinion that the Veteran's esophageal cancer was a direct result of his exposure to Agent Orange. The private physician reasoned that the Veteran did not have any other risk factors to make esophageal cancer more likely. The Board notes that the private physician who submitted the June 2016 and March 2020 opinions did not provide any citations to the Veteran's medical records and did not discuss the Veteran's particular medical history. Therefore, the Board assigns less probative weight to the private physician's opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). The May 2020 VA examiner reviewed the record and provided an opinion on the specific facts of this case as presented in the record. The examiner reviewed the record and provided appropriate rationales that are factually accurate, fully articulated, and soundly reasoned with citations to the Veteran's medical record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Board accepts the VA examiner's opinions as the most probative evidence as whether it is less likely than not that the Veteran's adenocarcinoma is related to service or to a service-connected disability. The Board acknowledges the lay statements made by the Appellant indicating that the Veteran's cause of death is related to his service, to include exposure to herbicide agents. The Appellant is competent to provide testimony concerning factual matters of which she has first-hand knowledge (i.e., witnessing the Veteran experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, a layperson without the appropriate medical training and expertise is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim. The record shows that the Veteran's adenocarcinoma was not present in service, nor has it been shown to be causally related to service, to include exposure to herbicide agents. Dependency and Indemnity Compensation (DIC) benefits When a Veteran dies from a service-connected disability or a disability that is entitled to service connection, the Veteran's surviving spouse is eligible for DIC benefits. See 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). As already discussed, the Board finds that entitlement to service connection for the cause of the Veteran's death has not been established in as much as a service-connected disability did not cause or contribute substantially or materially to his death from adenocarcinoma. Service connection is not in effect for adenocarcinoma, nor is it shown to warrant service connection. The Veteran's death certificate listed the immediate cause of his death as adenocarcinoma with no underlying causes, and there in turn is not the required attribution of his fatal cancer to anything that occurred during his military service. Because the Veteran's adenocarcinoma, as a result of this decision, is not service-connected, the appellant-widow is not entitled to derivative DIC benefits based on service connection for the cause of his death. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.