Citation Nr: 21006090 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-47 362 DATE: February 3, 2021 ORDER Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran's death certificate reflects that he passed away in July 2015. The immediate cause of death was thyroid cancer. 2. Resolving reasonable doubt in the appellant’s favor, the Veteran’s thyroid cancer is at least as likely as not related to in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1961 to October 1970. The Veteran had in-country service in the Republic of Vietnam during the Vietnam War, accordingly, exposure to herbicide agents is conceded. He died in July 2015. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2020, the appellant testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In June 2020, the Board remanded the claim for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). In December 2020, the appellant’s representative submitted a waiver of consideration by the agency of original jurisdiction in the first instance of any additional evidentiary submissions. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Entitlement to service connection for the cause of the Veteran’s death. The appellant seeks to establish service connection for the cause of the Veteran’s death. She contends that the Veteran’s thyroid cancer was the result of his exposure to herbicide agents, and ultimately resulted in the Veteran’s death. The Board concludes that, resolving reasonable doubt in favor of the appellant, the evidence of record supports the claim, as the record shows that the Veteran’s immediate cause of death was thyroid cancer, in-service exposure to herbicide agents, and is in approximate balance as to whether the Veteran’s cause of death was caused by in-service exposure to herbicide agents. To establish service connection for the cause of the Veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal (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). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it 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 causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). 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). VA regulations also provide that, if a veteran was exposed to herbicide agents during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption does not include thyroid cancer although, on January 1, 2021, the National Defense Authorization Act for 2021 added hypothyroidism to the list of those diseases presumptively associated with exposure to herbicide agents under U.S.C. § 1116(a)(2)(K). Consequently, the presumptive provisions of 38 U.S.C. § 1116 do not apply to the appellant’s claim for service connection for thyroid cancer. Nevertheless, a veteran who suffers from a disability that is not listed among those for which presumptive service is afforded based on herbicide exposure, is not precluded from establishing service connection for such disability as due to herbicide agents with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Mindful of the above, the Board finds that the appeal must be granted, as explained below. First, the record reflects that the Veteran died in July 2015, and his death certificate indicates that the immediate cause of death was thyroid cancer. The Veteran’s death certificate does not note any other condition or disease leading or contributing to his immediate cause of death. At the time of the Veteran’s death, he was not service-connected for thyroid cancer. Second, the evidence establishes that the Veteran served in the Republic of Vietnam during the Vietnam War; thus, it is conceded that he was exposed to herbicide agents. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Therefore, exposure to herbicide agents during service is presumed by regulation. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s cause of death is related to service. In that regard, the law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the claimant shall prevail upon the issue. 38 U.S.C. § 5107(b). In this case, there is favorable and negative competent, credible, and probative medical evidence. First, VA medical opinion, dated in September 2020, reflects the conclusion that the Veteran’s cause of death is less likely than not related an in-service injury, event, or disease, to include in-service exposure to herbicide agents. In support of this conclusion, the opinion identified and explained relevant history, and clinical findings, in-service and post-service; the opinion further identified and discussed medical literature in reaching the conclusion. For instance, the opinion, in citing to medical literature, provides that [t]hyroid cancer is the most common endocrine cancer, representing about 1% of all malignancies diagnosed worldwide, with approximately 600,000 men and women alive in the US who have a history of cancer of the thyroid. . . . The exception to this is the anaplastic subtype, which is ranked among the most deadly of all human cancers. There are no widely recognized and confirmed environmental causes of thyroid cancer other than ionizing radiation and dietary iodine intake (there are no known exposures to ionizing radiation associated with Vietnam service). Solvent exposure, especially occupational exposure and particularly benzene and formaldehyde used in the shoemaking and rubber industries, fungicides such as dioxin, polychlorinated biphenyls (PCB), hexachlorobenzene (HCB), polybrominated diphenyl ether (PBDE), and high consumption of green tea have all been associated with thyroid cancer but the evidence remains contradictory. (Emphasis Added). C&P Exam (September 2020). On the other hand, private medical opinion, dated in November 2020, reflects the conclusion that the Veteran’s cause of death is at least as likely as not related to in-service exposure to herbicide agents. The opinion, in support of this conclusion, similarly, identified and explained relevant history, and clinical findings, in-service and post-service; in addition, the opinion further identified and discussed medical literature in reaching the conclusion. For example, the opinion provides that the Veteran’s “malignancy shares similar risk factors with the more common thyroid cancers. Given the scarcity of literature, it is not unreasonable or presumptive to extrapolate similar risk factors including exposure to environmental chemicals such as dioxin, as being a strong risk factor for this malignancy.” (Emphasis Added). Here, both opinions note that the Veteran’s thyroid cancer, diagnosed as anaplastic carcinoma of the thyroid, is the rarest of all thyroid cancers and that the medical literature is scarce, or at most contradictory, in the etiology and pathology of the cancer. Further, both opinions note that there is not a widely recognized and confirmed environmental cause of thyroid cancer, however, dioxin (a chemical contaminant found in Agent Orange), as noted in both opinions, has been found to be a strong risk factor for thyroid cancer. Further, no other etiology has been offered to explain the Veteran’s thyroid cancer. Thus, there is an approximate balance of the evidence. The Board therefore concludes that, with the benefit of the doubt resolved in the appellant’s favor, a grant of service connection for the cause of the Veteran’s death is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Accordingly, the claim is granted. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.