Citation Nr: 21012960 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 13-31 808 DATE: March 8, 2021 ORDER Service connection for the Veteran's cause of death, including as due to exposure to herbicide agents, is denied. FINDING OF FACT The Veteran died in January 2011; his death certificate listed metastatic esophageal cancer as the immediate cause of death with no other causes or other significant conditions contributing to death; the Veteran’s cause of death is not related to his military service. CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312 (2020).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to July 1967, including service in the Republic of Vietnam. The Veteran died in January 2011 and the appellant is the Veteran’s surviving spouse. This matter is on appeal of an April 2013 rating decision. In April 2017, a hearing was held before the undersigned. A transcript of the hearing is of record. The Board remanded the appeal for further development in June 2016 and September 2018. In November 2020, the Board granted the appellant’s request for an extension of time to submit additional evidence or argument until December 21, 2020. As of the date of this decision, no additional evidence or argument has been received. Service Connection The Veteran’s January 2011 death certificate indicates that the cause of death was metastatic esophageal cancer. There were no listed underlying causes or significant conditions contributing to his death. The appellant and her representative contend that the Veteran’s metastatic esophageal cancer is etiologically linked to his service, more specifically to his exposure to herbicide agents while serving in the Republic of Vietnam. Alternatively, the appellant contends that at the time of his death, in addition to his esophageal cancer, the Veteran also had an underlying primary lung or respiratory cancer that substantially contributed to his death, and that this primary respiratory cancer is etiologically related to his exposure to herbicide agents while serving in the Republic of Vietnam. Service connection for a disability that caused a veteran’s death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of the veteran’s death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death or be causally related thereto. 38 C.F.R. § 3.312(b). Under 38 U.S.C. § 1116, a veteran who “served in the Republic of Vietnam” during the period beginning on January 9, 1962 and ending on May 7, 1975 shall be considered exposed to an herbicide agent, and that exposure in turn will be presumed to be the cause of certain enumerated diseases. 38 C.F.R. § 3.309(e) (listing respiratory cancers, including cancer of the lung, bronchus, larynx, or trachea, among diseases presumptively associated with exposure to certain herbicide agents). Esophageal cancer is not one of the diseases presumed to be a result of exposure to herbicide agents. Certain chronic diseases, such as malignant tumors, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by a condition noted in service with continuity of symptomatology after service. 38 C.F.R. § 3.303(b). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Board acknowledges the Veteran is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam. However, while the appellant contends that the impression of a February 2010 VA PET/CT study that found evidence of a primary esophageal carcinoma but could not exclude another primary site is proof of a second primary cancer in the lungs or of respiratory origin, the Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran had an underlying primary lung or respiratory cancer that contributed to his death. Initially, contemporary February 2010 VA treatment records indicate that an oncologist thought it was most probable that there had been metastatic spread of a primary lower esophageal adenocarcinoma, but that there was a possibility of a second primary cancer in the mid esophagus with potentially squamous cell carcinoma and metastatic spread from the second primary. This clearly identifies the site of the possible second primary cancer as being located in the mid-esophagus and not in the lungs. Although the February 2010 CT study did show bilateral air space opacities in both lower lobes, the VA treatment records identify these opacities as likely inflammatory/infectious although the possibility of metastatic disease could not be eliminated. Subsequent VA treatment records throughout the course of the Veteran’s treatment consistently show diagnoses of esophageal cancer. His treatment records show no diagnoses of a primary lung or respiratory cancer. Veterans Health Administration (VHA) medical opinions, rendered in February 2016 and June 2018, as well as a December 2019 VA examiner’s opinion, all opine that the Veteran’s treatment records did not show evidence of a primary lung or respiratory cancer, or of any other primary cancer other than esophageal cancer. The June 2018 VHA oncologist’s opinion further indicates that the interpreting radiologist of the PET/CT scan in question was referring to a second esophageal primary cancer and not a lung or respiratory primary site. The December 2019 examiner also bases his opinion on subsequent medical treatment records showing that the Veteran underwent biopsies of multiple areas in his chest and upper abdomen and that the only positive pathologic findings for cancer showed esophageal adenocarcinoma. No other type of cancer was found. He further notes that the Veteran’s cancer-treating providers repeatedly identified him as having esophageal cancer and no other primary cancers were identified at any time during the course of his treatment. In contrast, a private physician’s medical opinion dated in September 2020, asserts that the Veteran’s lung cancer was not caused by metastasis of his esophageal cancer because his exposure to herbicide agents in service predisposed him to develop lung cancer and esophageal cancer is far more likely to metastasize to organs other than the lungs. In support of his rationale, the physician cites to a research article entitled “Cigarette Smoking and Risk of Lung Metastasis from Esophageal Cancer,” published in October 2008. However, that article states that the lungs, as well as regional lymph nodes, the liver and bones, are the most common sites of esophageal cancer metastasis. The physician further notes that the Veteran was diagnosed with lung cancer on January 19, 2010, however, a review of the VA treatment records during this period, show that while there was concern of a neoplasm in the left upper lung, a January 20, 2010 CT of the chest was compatible with infection. A February 18, 2010 VA PET scan suspicious for nodal metastasis in both lower lobes of the lungs showed mild FDG uptake. It was determined that it could be inflammatory/infectious although the possibility of metastatic disease could not be eliminated. It was not until November 2010 that a VA biopsy report for pleural fluid smears and cell block was positive for adenocarcinoma, the same type of cancer as his esophageal cancer. Because the Veteran’s esophageal cancer was never fully staged, CT scans of the abdomen showed no metastasis in that region and a biopsy for lung cancer could not be completed, the private physician disagreed with the VA’s finding that his esophageal cancer had metastasized. The physician opined that it was as likely as not that the Veteran’s lung cancer was a primary cancer. The Board finds that the Veteran’s VA treatment records, particularly those of his treating oncologists, indicating they were treating him for primary esophageal cancer, as well as the February 2016 and June 2018 VHA opinions and the December 2019 VA opinion that the Veteran did not have a primary lung or respiratory cancer are more persuasive and probative than the September 2020 private physician’s opinion. The VHA and VA opinions are supported with rationale and based on medical literature and the physicians’ expertise. The June 2018 VHA and December 2019 VA opinions further provide a thorough summary of the Veteran’s illness. In contrast, the September 2020 physician provides little rationale for his opinion that the Veteran had a primary lung or respiratory cancer, other than the physician’s statement that the Veteran was predisposed to develop lung cancer. Moreover, despite the physician’s assertion that a research article supports his rationale that esophageal cancer is far more likely to metastasize to other organs than the lungs, the article cited actually identifies the lungs as one of the most common sites for esophageal cancer metastasis. As noted above, during the course of the Veteran’s treatment, he was consistently diagnosed with esophageal adenocarcinoma and while metastatic lesions were suspected, he was never diagnosed with a primary lung or respiratory cancer. Finally, his January 2011 death certificate lists the only cause as death as metastatic esophageal cancer. Since esophageal cancer is not one of the diseases entitled to presumptive service connection based on in-service herbicide agent exposure under 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), the appellant must establish service connection directly under the provisions articulated above by showing a nexus between his metastatic esophageal cancer and his presumed exposure to herbicide agents in service. In this matter, the evidence does not show that the Veteran complained of or received treatment for any gastrointestinal disorder, to include esophageal cancer, while in service or within one year of separation from service. Treatment records show he began to have difficulty swallowing in November 2009 and was diagnosed with esophageal cancer in January 2010, 43 years after his separation from service. Moreover, the February 2016 and June 2018 VHA and December 2019 VA opinions agree that it was unlikely that the Veteran’s esophageal cancer had its onset in service or within one year of his separation from service based on the available medical literature and the Veteran’s medical records. Regarding a nexus between esophageal cancer and the Veteran’s herbicide agent exposure in service, the preponderance of the competent medical evidence of record is against a causal connection. The February 2016 and June 2018 VHA opinions found that it was less likely as not that the Veteran’s exposure to herbicide agents in service was etiologically linked to his esophageal cancer and that evidence from medical literature was inadequate or insufficient to determine that there was such an association. The February 2016 opinion noted a single study conducted in 2012 showing an increased risk for workers exposed to dioxin developing malignant neoplasm of the esophagus, but opined without additional studies, it was “at best preliminary and inconclusive.” During the appellant’s April 2017 hearing before the Board, she and her daughters testified that the Veteran had heavy exposure to Agent Orange and other herbicide agents during his service in Vietnam as he served for weeks to a month at a time in jungles sprayed with herbicide agents and often had to drink the local water and showered using barrels that previously contained herbicide agents. To support her assertions, she had submitted statements regarding these facts from 2 veterans who served with the Veteran. During the hearing, the appellant’s representative noted 2 Board decisions that had granted service connection for esophageal cancer due to exposure to herbicide agents in service. In the December 2019 opinion, the VA examiner also opines that it is less likely than not that the Veteran’s diagnosed metastatic esophageal cancer was related to his service, including his known herbicide agent exposure. The VA examiner specifically addresses the 2012 study referenced in the February 2016 VHA opinion, noting that the study only evaluated workers at one German chemical plant, and the results were not directly applicable to Vietnam veterans as the workers were not only exposed to the chemicals in Agent Orange, but also other herbicide agents. The study also did not control for smoking history, a known esophageal cancer risk factor. The examiner also addressed an article submitted by the appellant’s representative, “Association between dioxin and cancer incidence and mortality: a meta-analysis,” (Xu 2016). The examiner noted that studies reporting “the association between Agent Orange/herbicides and cancer incidence and mortality were excluded” from the article’s analysis. Because of this, the examiner reasoned that the study was not helpful to the Veteran’s case as it specifically excludes consideration of his exact population. The examiner further notes that the National Academy of Sciences has assessed the overall body of relevant published, peer-reviewed medical literature and has determined there is not sufficient evidence of an association between herbicide agents sprayed over Vietnam from 1962 to 1971 and esophageal cancer. Finally, the examiner notes that gastroesophageal reflux disease (GERD) and smoking are common risk factors for esophageal adenocarcinoma and that the Veteran’s treatment records show that he had both a history of GERD and that he was a former smoker. The examiner notes that a 2017 study concluded that the risk of esophageal cancer did not decrease over time after smoking cessation for the Veteran’s type of cancer. In contrast, in September 2020, the private physician opined that it was as likely as not that the Veteran’s esophageal cancer developed as a result of his exposure to Agent Orange and other herbicide agents during service. The physician opined that the Veteran was exposed to excessively high amounts of these herbicide agents based on statements from men who served with him that he drank water from contaminated streams and showered with water from barrels that likely held herbicide agents. The physician initially noted that Agent Orange was a mixture of two herbicide agents which contained traces of tetrachlorodibenzo-p-dioxin (TCDD) a classified human carcinogen by the U.S. Environmental Protection Agency. The physician notes that the 2016 article “Association between dioxin and cancer incidence and mortality: a meta-analysis,” addressed in the December 2019 VA opinion suggested that “[h]igher external exposure of TCDD may significantly increase the mortality rate of esophagus cancer.” He opines that it was not unreasonable to presume that the Veteran had a higher risk of developing this type of cancer because no biopsy was completed on this mass and no concrete conclusion could be made regarding staging of the mass and with the amount of lymph nodes around his esophageal cancerous mass. The physician states that the June 2018 VHA examiner did not consider several studies that he had seen and did not discuss the risk factors the Veteran had developing cancers. He opines that it is a reasonable assumption that the Veteran had a much higher likelihood of having all types of cancers that Agent Orange has the possibility of causing. The Board finds that the February 2016 and June 2018 VHA opinions and the December 2019 VA opinion that the Veteran’s esophageal cancer was less likely as not a result of his service, to include his exposure to herbicide agents are more persuasive and probative than the September 2020 private physician’s opinion. The VHA and VA opinions are supported with rationale and based on medical literature and the physicians’ expertise. Both opinions found insufficient evidence in the literature to link esophageal cancer with exposure to herbicide agents. The December 2019 VA examiner specifically addresses the 2016 study the September 2020 private physician based his opinion on, as well as the 2012 study addressed in the February 2016 opinion, explaining why both studies were not germane to the question of whether the Veteran’s esophageal cancer was etiologically linked to his presumed exposure to herbicide agents in service. In contrast, the September 2020 physician provides little rationale for his opinion that the Veteran’s esophageal cancer was as likely as not a result of his in-service exposure to herbicide agents. The private physician relies on an article that the December 2019 VA examiner noted had excluded all studies regarding Agent Orange exposure and the development of esophageal cancer. The private physician further used studies regarding exposure to dioxin, which he acknowledged was only found in trace amounts in Agent Orange and other herbicide agents. Although the private physician indicates that the June 2018 examiner did not consider several studies he had reviewed and did not discuss the risk factors for the Veteran to develop cancers, the December 2019 VA examiner did thoroughly discuss the medical literature including some of the same studies the private physician referred to in his opinion and addressed the Veteran’s known risk factors of GERD and a prior smoking history, risk factors that the private physician did not address in his opinion. Based on the foregoing, the Board finds that the Veteran’s metastatic esophageal cancer was not related to service, to include his presumed exposure to herbicide agents. Esophageal cancer is not a disease subject to presumptive service connection based on herbicide agent exposure under 38 C.F.R. § 3.309(e). In particular, the opinion provided from the VA examiner in December 2019 is supported with rationale and based on medical literature and expertise. He gave a thorough summary of the Veteran’s illness and the possible underlying causes of his cancer and eventual death of metastatic esophageal cancer. Based on the medical literature, he found no nexus between the Veteran’s esophageal cancer, the noted cause of his death, and his service, to include exposure to herbicide agents. The Board considered the appellant’s arguments and her belief that the Veteran’s esophageal cancer is related to service, to include exposure to herbicide agents. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the matter of the etiology of the Veteran’s fatal disability is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). Despite evidence of her clear research by the submission of many medical articles, the appellant is not shown to have appropriate training and expertise, and thus is not competent to offer an etiology opinion as to the cause of the Veteran’s death. Therefore, the appellant’s assertion that the Veteran’s death was related to his service, to include exposure to herbicide agents, is not competent. As the evidence fails to establish that the Veteran had a service-connected disability that was either the principal or a contributory cause of death, service connection for the cause of the Veteran’s death is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence does not support the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appeal is denied. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. J. Wells-Green 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.