Citation Nr: 21012782 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-26 466 DATE: March 5, 2021 ORDER Dependency and Indemnity Compensation (DIC) for service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in January 2017. The death certificate lists the cause of death as respiratory failure and metastatic esophageal cancer. 2. Prior to the Veteran’s death, service connection was established for prostate cancer, tinnitus, and bilateral hearing loss. 3. The service-connected disabilities did not cause or contribute substantially or materially to the Veteran’s death, did not combine to cause death, and did not aid or lend assistance to the production of death. 4. Esophageal cancer was not chronic in service, not continuous since service separation, and was not shown to a compensable degree within one year of service separation. 5. The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed during such service to herbicide agents, to include Agent Orange. 6. Esophageal cancer is not on the presumptive list of diseases associated with herbicide exposure. 7. The cause of the Veteran’s death (esophageal cancer) was not incurred in service and is not etiologically related to service, including herbicide exposure during service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1112, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1971 to May 1973. The Veteran died in January 2017. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision from the Regional Office (RO), which denied service connection for the cause of the Veteran’s death. In November 2019, the appellant testified at a videoconference hearing from the RO in Boston, Massachusetts, before the undersigned Veterans Law Judge sitting in Washington, D.C. The hearing transcript has been associated with the record. In March 2020, the Board remanded the issue on appeal for additional development, including to obtain outstanding VA treatment records, to afford the appellant an opportunity to submit additional evidence in support of the claim including an addendum private medical opinion, and to obtain a VA medical opinion. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the March 2020 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Appellant nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection for Cause of Death Legal Criteria Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. 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. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The 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). Contributory cause of death is inherently one not related to the principal cause. In determining whether the 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 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). In order to establish service connection for cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and death. Under the relevant laws and regulations, 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; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. In this case, the cause of death, esophageal cancer, is a considered a “malignant tumor” recognized as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for the cause of death. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309(e). “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In order to establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Esophageal cancer is not listed as a disease for which presumptive service connection based on exposure to herbicides agents may be granted. 38 C.F.R. § 3.309(e). VA’s Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27, 630 (May 20, 2003). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Service Connection for Cause of Death is Denied. The death certificate indicates that the Veteran died in January 2017. The cause of death is listed as respiratory failure and esophageal cancer. The appellant contends that the Veteran’s cause of death, esophageal cancer, is due to Agent Orange exposure in Vietnam. Alternatively, the appellant asserts that the esophageal cancer was caused by the service-connected prostate cancer. The appellant testified that the Veteran had a history of elevated prostate specific antigen (PSA) since 2013, which continued to progress through 2015. While the appellant was not certain whether the prostate cancer or esophageal cancer developed first, the appellant asserted that there was a two-year lapse between the discovery of the Veteran’s prostate cancer and his death. See November 2019 Board hearing transcript. Initially, the evidence of record reflects that the Veteran died in January 2017. The death certificate lists the cause of death as respiratory failure and esophageal cancer. At the time of the Veteran’s death, service connection was in effect for prostate cancer, tinnitus, and bilateral hearing loss. With respect to disabilities for which service connection had been established at the time of death, the evidence of record does not purport to relate the service-connected tinnitus and bilateral hearing loss to the Veteran’s death. As for the service connected prostate cancer, the appellant asserts that the service-connected prostate cancer may have caused the metastatic esophageal cancer. The appellant testified that the Veteran had a history of stomach complaints and that an endoscopy confirmed a mass in the junction between the esophagus and the stomach. The appellant also testified that the Veteran had and elevated PSA since 2013, but she was unsure whether the esophageal cancer or prostate cancer developed first. See November 2019 Board hearing transcript. The post-service treatment records show an onset of an elevated PSA of 8.46 in March 2015 with symptoms of urinary frequency and slow urine. Treatment notes indicate that the Veteran had not presented with an elevated PSA prior to March 2015. Additionally, the Veteran did not have recurrent prostate infections, chronic prostatitis, and he had no history of a prostate nodule on physical examination. By May 2015, the Veteran’s PSA increased to 10.8 and a subsequent biopsy revealed low risk prostate cancer, with only one of 10 biopsied cores noted to be positive, a Gleason score of 3+3=6, and no indication of a metastatic disease. As for the esophageal cancer, the evidence indicates that poorly differentiated adenocarcinoma of the gastroesophageal junction was first diagnosed via esophagogastroduodenoscopy and biopsy in May 2015. At that time the Veteran endorsed a history of worsening gastroesophageal reflux symptoms for the previous two to three years, indicating an onset of gastroesophageal a few years prior to the onset of the Veteran’s elevated PSA in March 2015. Treatment notes indicate that esophageal cancer has been treated with chemotherapy and radiation in 2015 and 2016. See March 2015, May 2015, June 2015, July 2015, November 2015, February 2016, March 2016 private treatment records. The appellant has not provided a medical opinion that indicates a nexus between the service-connected prostate cancer and the Veteran’s cause of death, metastatic esophageal cancer. In July 2020, the VA examiner opined that the metastatic esophageal cancer has no etiologic relation to service-connected prostate cancer. The VA examiner explained that prostatic malignancy was confirmed by biopsy in May 2015 with low grade histopathology Gleason 3+3 in one biopsied core. No specific treatment for prostate cancer and no evidence of metastatic disease related to prostate cancer occurred during the life of the Veteran. Poorly differentiated advanced metastatic adenocarcinoma of the gastroesophageal junction was confirmed by upper gastrointestinal endoscopy in [May 2015] and was treated with chemotherapy and later external radiation. The VA examiner explained that metastatic esophageal cancer has no etiologic relation to service connected prostate cancer that was a very low grade, essentially asymptomatic non-metastatic condition in the Veteran. Additionally, the VA examiner opined that the service-connected prostate malignancy did not contribute singly or in combination with other conditions or contribute substantially or materially to the underlying cause of death by esophageal cancer in this Veteran, nor did it cause such significant debilitating health effects that would render the Veteran less capable of resisting the effects of esophageal cancer. See July 2020 VA examination report. No treating or examining physician of record has indicated an etiological relationship between the service-connected prostate cancer and the Veteran’s cause of death, metastatic esophageal cancer. The post-service treatment records do not indicate that the prostate cancer, tinnitus, or bilateral hearing loss are related to the cause of death (esophageal cancer). Furthermore, the death certificate does not indicate that any other medical condition, to include the service-connected disabilities, materially or substantially contributed to the Veteran’s cause of death, esophageal cancer. The Board will also consider whether the cause of the Veteran’s death was related to any disease, injury, or other incident of service. The Veteran served in the Republic of Vietnam from January 1972 to January 1973; therefore, in-service herbicide exposure is presumed. See February 2017 Claim, DD Form 214. See 38 C.F.R. § 3.307(a)(6)(m). Certain diseases associated with exposure to herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3 309(e). Esophageal cancer is not on the presumptive list of diseases associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, VA has determined that a presumption of service connection is not warranted for any disease not affirmatively named in the presumptive list. See 77 Fed.Reg. 47,924 (Aug. 10, 2012). Based on the law, the appellant cannot benefit from the herbicide nexus presumption, regardless of whether the Veteran was exposed to herbicides in service. Id. Notwithstanding the foregoing, the Veterans’ Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection on alternative bases. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). After reviewing all of the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran’s cause of death (respiratory failure and esophageal cancer) did not have its onset during, and is not otherwise related to, active service. The weight of the evidence is against finding that symptoms of esophageal cancer were “chronic” in service. The available service treatment records do not reflect any history, complaints, symptoms, diagnosis, or treatment for of a gastroesophageal condition or a malignant tumor during service. The evidence does not indicate, and the appellant does not assert, that esophageal cancer, to include symptoms thereof, developed during service. Post-service treatment notes also do not reflect that symptoms of a gastroesophageal condition began during active service or were continuous since service separation. The Board next finds that the weight of the evidence is against finding that symptoms of esophageal cancer were “continuous” since service separation. The appellant has not asserted that esophageal cancer symptoms were present since service separation. The appellant testified that the Veteran had problems with stomach complaints prior to his death and stated that an endoscopy confirmed gastroesophageal cancer at the junction between the esophagus and the stomach but did not indicate when these symptoms arose. Post-service treatment notes indicate that esophageal cancer was first diagnosed in May 2015, and the Veteran reported an onset of gastroesophageal reflux symptoms that progressively worsened over the course of the preceding two to three years, that is, since approximately 2012 or 2013 - approximately 39 to 40 years after service separation. Post-service treatment notes do not reflect lay histories, for the purpose of treatment, of gastroesophageal symptoms that began during active service, or were continuous since service separation. See May 2015, June 2015 private treatment records. This same evidence also shows that symptoms of esophageal cancer did not manifest to a compensable degree within one year of service separation. On the question of direct nexus to service, the appellant has not submitted competent and credible evidence of a link between the cause of death (esophageal cancer) and active service. While the post-service treatment records show an onset of esophageal cancer many years after service, the treatment records do not indicate that the Veteran’s esophageal cancer is etiologically related to service. The Board has considered the appellant’s lay assertion that the esophageal cancer is related to herbicide agent exposure or the service-connected prostate cancer. As a lay person, the appellant is competent to report any observable esophageal cancer symptoms the Veteran experienced at any given time; however, under the specific facts of the case that show no in-service symptoms of a gastroesophageal condition or malignant tumor, no gastroesophageal symptoms until almost 39 years after service, and an onset of gastroesophageal reflux symptoms two to three years prior to the onset of an elevated PSA in March 2015, the appellant does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of the Veteran’s esophageal cancer. The etiology of esophageal cancer requires medical expertise and falls outside the realm of common knowledge of a lay person. The etiology of the Veteran’s esophageal cancer involves a complex medical etiological question dealing with the origin and progression of the metastatic disease, and is diagnosed primarily on clinical findings and physiological testing rather than observation by the five senses. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (holding that a veteran is not competent to diagnose or render a nexus opinion about a disorder as complex as carcinoma (cancer)); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77, n.4 (Fed. Cir. 2007) (stating that lay persons are not competent to diagnose cancer); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For these reasons, and under the specific facts of this case that include no in-service injury, diagnosis, or symptoms of esophageal cancer, no esophageal cancer symptoms until years after service, and an onset of esophageal cancer symptoms prior to the onset of symptoms of prostate cancer, the appellant’s unsupported lay assertion is of no probative value. In a February 2017 statement, Dr. Gurevich, a private oncologist, wrote that the Veteran was treated for stage IV esophageal cancer with chemotherapy and radiation. Dr. Gurevich also noted that the Veteran had a history of prostate cancer, but did not indicate any nexus between the service-connected prostate cancer and the Veteran’s cause of death, esophageal cancer. Dr. Gurevich opined that there is a likelihood that the Veteran’s esophageal cancer was connected to exposure to Agent Orange in Vietnam. See February 2017 private treatment record. While Dr. Gurevich’s statement suggests a relationship between the Veteran’s esophageal cancer and in-service herbicide agent exposure, the opinion is not credible and is of no probative value as it is a conclusory statement that is not supported by any rationale, to include a discussion of the medical evidence and clinical history of the esophageal cancer, the presence or absence of other risk factors for the development of esophageal cancer, and/or the medical principles and literature that might have been relied upon to support a likely relationship between in-service herbicide agent exposure and the Veteran’s cause of death by esophageal cancer. The VA examiner in July 2020 opined that it is less likely than not that the cause of death, malignant esophageal cancer, was incurred in or etiologically related to active duty military service including herbicide exposure. The VA examiner considered the statements from Dr Gurevich and the clinical evidence of record, among other evidence, in forming the opinion. The examiner explained that poorly differentiated advanced metastatic adenocarcinoma of the gastroesophageal junction was made by upper gastrointestinal endoscopy. The condition was treated with chemotherapy and later external radiation, and the Veteran succumbed to the metastatic esophageal malignancy in January 2017. The VA examiner explained that extensive clinical and epidemiologic surveillance of Vietnam Veterans by the VA and National Institute of Medicine has not identified a definitive clinical association or link between Agent Orange herbicide exposure and any gastrointestinal malignancy including esophageal cancer, therefore, it is less likely than not that the cause of death, malignant esophageal cancer, was incurred in or etiologically related to active duty military. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the appeal of service connection for the cause of the Veteran’s death; consequently, the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.