Citation Nr: 21011767 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 18-51 703 DATE: March 2, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1970 to November 1973. He passed away in August 2004. The appellant is his surviving spouse.  This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  The Board has issued four prior remands on this claim in January 2019, February 2020, May 2020, and December 2020.  1. Entitlement to service connection for cause of death is remanded. At the time of his death in August 2004, the Veteran was service connected for scar residuals, postoperative residuals of spontaneous pneumothorax, and posttraumatic stress disorder (PTSD). In August 2004 the Veteran requested service connection for esophageal cancer as due to agent orange exposure. Following his death, the appellant filed an application for dependency and indemnity compensation (DIC), death pension and accrued benefits by a surviving spouse. In a January 2005 rating decision, the RO denied entitlement to accrued benefits, service connection for cause of death, and entitlement to DIC. The appellant did not appeal this rating decision, however, in September 2006 she requested to reopen her DIC claim. In support of her request, the appellant provided February 2007 correspondence contending that the Veteran’s esophageal cancer, which spread to his brain and lungs, should be service connected as his cause of death.” The RO issued a June 2007 rating decision denying service connection for cause of death due to no new and material evidence. The RO issued a July 2017 rating decision continuing to deny the claim for service connection for cause of death due to no new and material evidence. The appellant appealed the issue up to the Board. In January 2019, the Board remanded the claim to obtain additional VA treatment records reported by the appellant as available at the Miami VAMC. Following additional development, the Board reopened the claim for service connection for cause of death in February 2020. In December 2018, the RO obtained a medical opinion regarding the Veteran’s cause of death. First, the examiner opined that it was less likely than not that the Veteran’s diagnosed heart disease was a contributing factor in his death. Specifically, the examiner opined “My medical opinion is based upon review of the C-file in VBMS/VVA, to include the above noted medical records in capri, the death certificate which noted that the Veteran was 54 yo at time of death, 8/28/2004 as to the date of death, metastatic lung cancer as to cause of death, no other contributory conditions noted, occupation noted as ‘stair builder’ ‘construction’, and although the medical records of 7/16/2004 noted the following ‘1. Coronary artery disease, onset 10/26/98 – 3 vessel disease, s/p CABG 2000’, there was no evidence of any progression of the Veteran’s coronary artery disease that would have predisposed this Veteran / nor would have contributed to the conditions noted in the death certificate as to cause of death.” With regard to the Veteran’s cancer, the examiner opined that it was less likely than not that the Veteran’s primary site of cancer was the lung. The examiner again noted his review of the Veteran’s medical records and provided quotes from several treatment records indicating that the Veteran suffered from esophageal primary cancer. A review of the record provides that the Veteran passed away in August 2004 with his death certificate listing metastatic lung cancer as the immediate cause of death. However, as noted in the January 2019 Board remand, the evidence of record indicates that the Veteran’s lung cancer was metastatic from the gastrointestinal system, particularly the esophagus. While the Veteran had verified service in the Republic of Vietnam, primary carcinoma of the esophagus is not a disease subject to presumptive service connection due to herbicide exposure. Nevertheless, new treatment records from the Miami VAMC indicate that the Veteran was admitted in November 1986 with a diagnosis of paraproteinemia. One complication of paraproteinemia has been noted to be multiple myeloma, which is subject to presumptive service connection. The appellant has repeatedly contended that the Veteran’s herbicide exposure has contributed to his death. Accordingly, the Board remanded the claim in February 2020 in order to obtain a medical opinion from an oncologist and hematologist regarding the Veteran’s cause of death. In April 2020 a VA opinion was obtain from a doctor who specializes in hematology/oncology. He opined that it was unlikely that the Veteran’s gastroesophageal cancer was etiologically related to his presumed in-service herbicide exposure. In support of his opinion the examiner provided “Known risk factors for adenocarcinoma of the GE junctions include: gastroesophageal reflux disease – most, if not all esophageal adenocarcinomas arise from a region of Barrett’s metaplasia, which is due to GERD. Smoking – particularly in patients with Barrett’s esophagus. Obesity – by a ‘mechanical’ mechanism (disruption of normal esophageal sphincter function). There is no association between alcohol drinking and esophageal adenocarcinoma risk even at higher levels of drinking. Review of ‘Veterans and Agent Orange Update 2014’ comprised of updated epidemiologic studies, occupational and environmental studies, case-control studies and biologic plausibility leads to the conclusion that there is inadequate or insufficient evidence to determine whether there is an association between herbicides and esophageal cancer. No laboratory findings were available for review of JLV and therefore I am unable to comment on the Veteran’s paraproteinemia and whether it contributed to his death.” Given the complex nature of the medical questions at issue, the Board remanded the claim again in May 2020 to obtain additional opinions from an independent medical expert in oncology and hematology regarding the Veteran’s cause of death. In August 2020, the RO obtained another negative opinion from a nurse practitioner. Realizing this mistake, the RO obtained additional opinions from Dr. Y.R. who specializes in hematology, internal medicine, and medical oncology. With regard to the Veteran’s esophageal cancer, Dr. Y.R. opined that it was less likely than not incurred in or caused by the Veteran’s active service. As rationale for his opinion he provided “Patient had diagnosis of esophageal adenocarcinoma with brain mets and lung nodules. Did have craniotomy for the frontal lobe lesion and pathology indicated adenocarcinoma unknown primary. He then underwent endoscopy showing esophageal lesion and biopsy confirmed adenocarcinoma and this was deemed to be primary site of the metastatic brain lesion. He was treated with radiation followed by chemotherapy. He eventually underwent hospice. He did have history of heavy tobacco use of 2 ppd which is significant contributor to his diagnosis of esophageal adenocarcinoma. Esophageal adenocarcinoma is related to tobacco use and therefore, it is less likely than not that his condition was incurred or caused by the service time or related to his herbicide exposure during service.” With regard to the Veteran’s paraproteinemia, Dr. Y.R. provided “There is no clinical notes or information regarding the paraproteinemia. This is a clinical lab finding that could be due to variety of conditions benign or malignant. Specifically, can be related to multiple myeloma or other plasma cell dyscrasias. However, this would require bone marrow biopsy and therefore treatments. There is no documentation of bone marrow biopsy being done at all. In addition, diagnosis of myeloma would require treatment with prognosis back in 1980s and 1990s being very poor. Therefore it is less likely than not that the Veteran’s paraproteinemia from 1986 was a contributing factor to his death.” In November 2020, the appellant provided additional correspondence again arguing that she felt the Veteran’s death was connected to his agent orange exposure. The appellant noted that “we were never told of enclosed papers that show Agent Orange is associated with cancer of the esophagus, he also had coronary artery disease which is now called ischemic heart disease, along with gastrointestinal problems, circulation problems, PTSD, had collapsed lung, along with more medical problems. My opinion this all goes back to being exposed to Agent Orange.” In support of her contention, the appellant provided an article entitled “Poster 1675 Agent Orange is Associated with Esophageal Adenocarcinoma in Vietnam Veterans.” Is it unclear if this evidence was associated with the file prior to the Board’s December 2020 remand instructing to RO to obtain the full credentials of Dr. Y.R. to determine that he was in fact an independent medical examiner. In January 2021, the RO uploaded additional evidence into the Veteran’s electronic file, including a formal finding that Dr. Y.R.’s specialties include hematology and oncology and there is no evidence he is a VA employee. The Board notes that no opinion has been obtained regarding the effect the Veteran’s service-connected PTSD may have had on his cause of death. In an October 2010 report of information, the appellant contended that the Veteran’s PTSD caused him to be depressed and refuse treatment for his terminal cancer. The Board regrets that another remand is required, but in light of the Veteran’s November 2020 correspondence again highlighting the Veteran’s PTSD, along with the article establishing a potential link between esophageal cancer and herbicide exposure, additional opinions must be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from Dr. Y.R., if he is not available, obtain an addendum opinion from a medical doctor, M.D. (not a VA employee) who specializes in hematology and oncology regarding the Veteran’s cause of death. A copy of the Veteran’s entire claim file, including this remand, should be provided to the physician and a note that such was reviewed should be included in the report. The examiner should answer the following question: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s carcinoma of the esophagus was etiologically related to his presumed in-service herbicide exposure? In formulating an opinion, the examiner should specifically address and consider the article provided by the appellant in November 2020 entitled “Poster 1675 Agent Orange is Associated with Esophageal Adenocarcinoma in Vietnam Veterans”. The Board is cognizant that esophageal cancer is not a presumptive disease associated with herbicide exposure. The Board seeks a medical opinion on the likelihood that this Veteran’s esophageal cancer is related to his herbicide exposure given his medical history, family history, existence of or absence of other risk factors, and any other additional factors deemed relevant by the physician. The physician should provide a detailed rationale for his or her opinion. 2. Obtain an opinion regarding the Veteran’s service-connected PTSD and his cause of death. A copy of the Veteran’s entire claim file should be provided to the examiner and a note that such was reviewed should be included in the report. The examiner should answer the following question: (a.) Based on review of the evidence, is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected PTSD was a contributing factor in his death? The examiner must address the appellant’s contention that the Veteran’s PTSD caused him to be depressed and refuse treatment for his terminal cancer. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to mere speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.