Citation Nr: 21012347 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-02 179 DATE: March 4, 2021 ORDER Entitlement to service connection for cause of death (COD) is denied. FINDING OF FACT The preponderance of the evidence fails to show that the Veteran’s death from pancreatic cancer was caused or related to his active military service. CONCLUSION OF LAW The criteria for service connection for the COD of the Veteran have not been met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.303. 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to September 1970 and from November 1976 to August 1977. The Veteran died in April 2009. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, February 2020, and September 2020, the Board remanded the Veteran’s claim for additional development. The case is once again before the Board. SERVICE CONNECTION Pursuant to 38 U.S.C. § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. See 38 U.S.C. § 1310; see also Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory COD. See 38 C.F.R. § 3.312 (a). The disability is the principal COD if it was "the immediate or underlying COD or was etiologically related thereto." See 38 C.F.R. § 3.312 (b). It is a contributory cause if it "contributed substantially or materially" to the COD, "combined to cause death," or "aided or lent assistance to the production of death." See 38 C.F.R. § 3.312 (c) (1). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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. See 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a) (6) (iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. See 38 C.F.R. § 3.309 (e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Entitlement to service connection for COD is denied. The death certificate shows that the Veteran died in April 2009 and the immediate COD was metastatic pancreatic cancer. The RO has conceded that the Veteran served in the Republic of Vietnam and was exposed to herbicide agents. At the time of his death, he was not service connected for any disability. Service treatment records (STRs) are negative for complaints, treatment, or diagnosis of pancreatic cancer. There is likewise no evidence that the cancer or any other cancer was diagnosed until many years after service or evidence suggesting a continuity of symptomatology since service. The Appellant does not argue the contrary. Rather, the Appellant asserts that the Veteran’s fatal cancer was caused by his in-service exposure to herbicide agents or alternatively, his fatal cancer was caused by his diabetes mellitus type II (DM II) that was caused by his service exposure to herbicide agents. Pancreatic cancer is not among the listed presumptive disabilities for herbicide exposure. Thus, presumptive service connection under 38 C.F.R. §§ 3.307 (a) (6) and 3.309 (e) is not applicable. Under applicable law service connection cannot be granted for pancreatic cancer on a presumptive basis due to herbicide agents. There is no such mechanism in place. However, this does not preclude direct service connection based on actual exposure. See Combee v. Brown, 34 F.3d 1039 (1994). The first element of service connection is always satisfied if the current disability is the condition that resulted in the Veteran’s death. The Veteran’s death certificate recorded his immediate COD as pancreatic cancer. Thus, the first element of service connection is met. Regarding an in-service incident, injury, or illness to which the Veteran’s COD may be linked, the Appellant asserts that the Veteran’s fatal cancer was caused by his in-service exposure to herbicide agents or alternatively, his fatal cancer was caused by his DM II that was caused by his service exposure to herbicide agents. Thus, the second element of service connection is met. Regarding the third element of service connection, the most competent evidence of record does not support a nexus. In October 2020, a VA medical opinion was provided. The VA medical examiner determined that his DM II is at least as likely as not proximately due to or a result of his pancreatic cancer. As the Veteran’s DM II developed after his pancreatic cancer was discovered. The Veteran’s DM II would not have contributed to any debilitating effects and general impairment of his health to any extent that would have rendered him materially less capable of resisting the effects of the fatal pancreatic cancer or had any material influence in accelerating his death. The medical literature notes that DM II can develop due to the destruction of the pancreas tissue by the cancer. The International Agency of Research on cancer does not name DM II as a carcinogen in humans for pancreatic cancer. Further, the Veteran’s death was due to his pancreatic cancer which had metastases to his liver and brain. It is less likely as not that the Veteran’s pancreatic cancer had its clinical onset during service or that it is due to an event or incident relating to military service. The International Agency of Research on cancer does not name herbicide agents as a carcinogen in humans for pancreatic cancer. The Institute of Medicine concludes that there is inadequate/insufficient evidence to determine whether an association exists between GI cancers (pancreas) and exposure to herbicide agents including agent orange. The Board finds the VA examiner's opinion to be adequate and reliable and affords it great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The VA examiner's opinion was based on a thorough review of the record and it contains sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner considered the Veteran's relevant medical history and Appellant’s contentions when formulating the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). A private opinion was provided in July 2011. Dr. B.H. wrote that he believed exposure to Agent Orange is a likely contributing cause to the Veteran’s pancreatic cancer. No rationale was provided for this conclusion and there is no indication what records were reviewed in making this determination. In the August 2015 Board remand, the Appellant was informed that it would be helpful if the family physician were to provide a written statement explaining why he believes that the Veteran’s in-service exposure to herbicides e.g. Agent Orange contributed to the development of pancreatic cancer. No additional opinion has been received from Dr. B.H. Thus, the medical opinion is inadequate and less probative value. The Board has considered whether a remand is necessary for further development and determined that a remand is not necessary. See generally Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). As an April 2020 VA 21-0820 it shows that the RO called the Appellant to discuss the February 25, 2020 and March 27, 2020 development letter, which informed the Veteran that another written statement from Dr. B.H. was needed and enclosed a VA form 21-4142. The RO informed the Appellant that a specific request would be made for healthcare providers who treated or evaluated the Veteran prior to February 2009 as such records could show whether he had symptomatology or laboratory test results that may have been indicative of DM prior to the actual diagnosis. The Appellant stated she had no new evidence to submit and all records should be in the file. The Board acknowledges the competent and credible lay statements from the Appellant and others describing his symptomology. See Layno v. Brown, 6 Vet. App. 465 (1994). Nevertheless, lay individuals are not competent to opine on the etiology of a complex medical condition such as pancreatic cancer. Id. Therefore, the lay statements are given little probative weight. Ultimately, after a careful review of the evidence of record, the Board finds that service connection for the COD of the Veteran cannot be granted because the evidence does not support a finding that he suffered an in-service injury, illness, or incident, to which his COD may be etiologically linked. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, 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.