Citation Nr: 21014148 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-48 910 DATE: March 11, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to service connection for salivary gland/duct adenocarcinoma with soft tissue and diffuse skeletal metastasis, including as secondary to prostate cancer, or as due to exposure to herbicide agents, for substitution and/or accrued benefits purposes is denied. FINDINGS OF FACT 1. The Veteran’s Certificate of Death indicates that the Veteran died in June 2015; his immediate cause of death was salivary gland adenocarcinoma with metastases to bone, lung, soft tissue, and lymph nodes. 2. The Veteran’s adenocarcinoma was not proximately caused by his service-connected prostate cancer, nor did a service-connected disability contribute substantially or materially to the Veteran’s cause of death. 3. The competent evidence does not attribute the Veteran’s salivary gland/duct adenocarcinoma with soft tissue and diffuse skeletal metastasis to military service, including exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.307, 3.309, 3.310, 3.312. 2. The criteria for service connection for salivary gland/duct adenocarcinoma with soft tissue and diffuse skeletal metastasis for substitution and/or accrued benefits purposes are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1966 to May 1969. He died in June 2015. The Appellant is the Veteran’s surviving spouse, who has been properly substituted for the Veteran as the claimant in this case pursuant to 38 U.S.C. § 5121A and 38 C.F.R. § 3.1010 with respect to the issue of entitlement to service connection for salivary gland/duct adenocarcinoma with soft tissue and diffuse skeletal metastasis, including as secondary to prostate cancer, or as due to exposure to herbicide agents. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) rating decision dated in March 2016. The Appellant was afforded a Board hearing before the undersigned in November 2019. A transcript of that hearing is of record and has been considered in this decision. This case was remanded by the Board in February 2020 for additional development. The Board finds that the AOJ substantially complied with all remand directives, and the case is ready for adjudication. 1. Entitlement to service connection for the cause of the Veteran's death 2. Entitlement to service connection for salivary gland/duct adenocarcinoma with soft tissue and diffuse skeletal metastasis for substitution and/or accrued benefits purposes The Appellant seeks service connection for the cause of the Veteran’s death, which is listed on a Certificate of Death as salivary gland adenocarcinoma with metastases to the bones, lungs, soft tissue, and lymph nodes. She also seeks service connection for salivary gland/duct adenocarcinoma with soft tissue and diffuse skeletal metastasis for substitution purposes. Prior to his death, the Veteran had a pending claim for service connection for salivary gland adenocarcinoma. The contentions are that: 1) the Veteran’s service-connected prostate cancer, or treatment therefor, caused his adenocarcinoma; 2) that the Veteran’s presumed exposure to herbicide agents in Vietnam caused adenocarcinoma; and 3) that the metastases to the lung and soft tissues are a respiratory cancer or soft tissue sarcoma for presumptive service connection. Dependency and Indemnity Compensation (DIC) benefits are 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 such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered as the principal (primary) cause of death when the 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 that is not related to the principal cause. To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran’s death. 38 C.F.R. § 3.312 (c). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death. A causal relationship must be shown. 38 C.F.R. § 3.312. The Board notes that the Veteran’s Certificate of Death does not list any diseases, injuries, or complications that caused death other than adenocarcinoma with metastases. There are no underlying causes listed as contributory to adenocarcinoma, nor are there any significant conditions contributing to death but not resulting in the underlying cause of death. At the time of his death, the Veteran was not service connected for adenocarcinoma. He was service connected for prostate cancer residuals related to herbicide agents, among other disabilities. Thus, the Board will address the laws that otherwise govern establishing service connection for a disability. Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a Veteran is presumably exposed to an herbicide agent in Vietnam, then there is a presumption of service connection for certain enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a) and 3.309(e). Respiratory cancers (including cancers of the lungs) and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma) is listed. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Note 1 provides that the term “soft-tissue sarcoma” includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), rhabdomyosarcoma, ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing’s sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma. Here, the Board notes that salivary gland adenocarcinoma is not a disability listed under 38 C.F.R. § 3.309(e). Nevertheless, although salivary gland adenocarcinoma is not a presumptive condition associated with herbicide exposure, service connection may be established on a direct basis with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either: (a) proximately caused by; or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). “Proximate cause” is defined as “[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.” Black’s Law Dictionary 1225 (6th ed. 1990); see Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002), rev’d on other grounds by Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003). In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. As explained in detail below, the Board finds that the Veteran’s adenocarcinoma was not caused or aggravated by his service-connected prostate cancer residuals, nor is there a medical nexus between his presumed exposure to herbicide agents and adenocarcinoma. Thus, service connection for the Veteran’s cause of death is not warranted. Turning to the evidence, the Board notes that the Veteran was not diagnosed with salivary gland adenocarcinoma during service. He was found unfit in June 1965 due to an enlarged lymph node, and it was noted that he was to be re-examined at a later date. In June 1966, the Veteran was found fit for service and all clinical evaluation of all body systems was normal. At a separation examination in May 1969, all systems were normal. The Veteran’s VA medical records show that he had a needle biopsy of a left parotid mass in November 2014. The sample was highly suspicious for malignancy, but subclassification could not be performed, nor could a distinction between primary and metastatic process be made. Histopathology from December 2014 showed that the Veteran had adenocarcinoma, most suggestive of primary salivary duct carcinoma. A diagnosis of sarcoma was not made. The Veteran’s treatment records from December 2014 show that the Veteran had a history of prostate adenocarcinoma, but his “most recent PSA deemed undetectable within the last two months.” The Veteran’s provider discussed with him that prostate cancer seemed unlikely given recently normal PSA. It was more likely a primary parotid malignancy. The Veteran’s family history was significant for cancer in has paternal and maternal grandmothers, and his father. In June 2015, the Veteran submitted medical records and disease information brochures from Mayo Clinic. The information indicated that, in theory, prostate cancer cells can break away from the tumor in the prostate and travel to other areas of the body, including the salivary glands, bones, and lungs. A record from June 2015 shows that the Veteran was in hospice for stage IV parotid cancer, with evidence of skeletal, pulmonary, and lymph node metastases. The medical conditions not contributing to his terminal prognosis included hypertension, hyperlipidemia, and prostate cancer. The AOJ obtained an opinion regarding the Veteran’s claim in June 2015. The examiner explained that the Veteran’s PSA levels in September 2014 showed that his prostate cancer was in remission. There was no evidence showing the Veteran’s metastases were from prostate cancer, and the Mayo Clinic records showed they were related to the salivary gland tumor. Additionally, the biopsies from the parotid gland in 2014 were PSA negative. Therefore, it is less likely than not that the Veteran’s salivary gland cancer was related to his prostate cancer. The Appellant submitted an article in support of the claim in May 2017. It is titled, “Can I Get Another Cancer After Having Prostate Cancer?” The article indicates that survivors of prostate cancer have an increased risk of soft tissue cancer, and certain types of cancer treatment are linked to a higher risk of second cancers. A June 2017 opinion by Ms. K. H., a nurse practitioner, indicates that there is a 1-3 percent chance of a patient who had cancer to later be diagnosed with a second cancer, which is what happened to the Veteran. Ms. H. reported this conclusion was based on a review of literature. The AOJ obtained a supplemental opinion in August 2017. The examiner reviewed the articles and Ms. H.’s opinion, and provided a negative nexus opinion. The examiner explained that the Veteran’s prostate cancer was in remission when he was diagnosed with metastatic salivary gland adenocarcinoma. Additionally, a “second cancer” is a new, unrelated cancer. It is not causally related to the prior, original cancer. The Appellant testified at a Board hearing in November 2019. She testified that the Veteran’s cancer was identified at VA, but was treated by Mayo Clinic before going into hospice. The Appellant was concerned that the Veteran’s prostate cancer was in remission, but had returned, or was due to herbicide agents. The Appellant submitted a written statement in January 2020, in which she argued that the metastases to the lung qualify as respiratory cancer for presumptive service connection, that the Veteran’s adenocarcinoma was a second cancer and, thus, secondary to his prostate cancer, and that doubt should be resolved in favor of granting the claim due to the numerous metastases to soft tissue and areas that are listed under the presumptive statute. The AOJ obtained an etiology opinion in April 2020. The examiner reviewed the Veteran’s records, which showed his prostate cancer was treated with radical prostatectomy in March 2007, which is surgical removal of the prostate. There was no record of chemotherapy or radiation therapy. The examiner opined that it is less likely than not that the Veteran’s prostate cancer caused, or led to, a second cancer. The examiner cited literature and explained that radiation therapy may cause an increased risk of a second cancer in an adjacent body part or the blood, but surgical removal of tumors is not a known cause of a second, distinct cancer years later, and the parotid salivary gland is a greater distance from the prostate. Additionally, the examiner reviewed the articles submitted in support of the Appellant’s claim, and noted that, while survivors of prostate cancer have an increased risk of cancer on different anatomic body sites, head and neck cancers were not included. Moreover, the Veteran’s records showed that he had a markedly significant amount of tobacco exposure from smoking, which constitutes a very, very strong etiology for most types of cancer. The examiner identified harmful and potentially harmful constituents in tobacco products and tobacco smoke. The Veteran’s family history of cancer also increased his risk of cancer. Finally, the Veteran’s treating physicians ran tests on his parotid cancer, which was negative for staining for PSA, and the Mayo Clinic records did not identify the Veteran’s prostate cancer or its treatment as a causative factor or risk for adenocarcinoma. The April 2020 examiner also opined regarding the Veteran’s exposure to herbicide agents. It is less likely than not that the Veteran’s adenocarcinoma of the parotid gland was caused by herbicide agents because the scientific evidence did not establish a positive association or causal relationship between the two. The examiner cited research conducted by the National Academy of Sciences. After reviewing the evidence, the Board concludes that service connection for the Veteran’s cause of death, or salivary gland adenocarcinoma with metastases to the bones, lung, soft tissue, and lymph nodes, is not warranted. First, secondary service connection is not warranted. Under 38 C.F.R. § 3.310, the evidence must establish that the Veteran’s parotid cancer was proximately “due to” his prostate cancer. Applying the Black’s Law Dictionary definition provided above in this case, in order to establish proximate cause, the evidence must show an unbroken “continuous sequence” between the Veteran’s prostate cancer and salivary gland adenocarcinoma, or that his salivary gland adenocarcinoma was “produced” by prostate cancer, and that without prostate cancer, the Veteran’s parotid cancer would not have occurred. The weight of the competent medical evidence shows that, while the Veteran’s salivary gland adenocarcinoma was a second cancer, there is no causation between the two disabilities. To the contrary, the June 2015, August 2017, and April 2020 VA opinions, when taken together, establish that a second cancer is not causally related to the first. Moreover, while an article suggested that prostate cancer cells can, in theory, metastasize to other body parts, the VA examiners explained that the Veteran’s salivary gland tumor was PSA negative, and his prostate cancer was shown to be in remission. Significantly, the Veteran’s private treatment records dated in December 2014 also show that the Veteran’s provider discussed with him that prostate cancer seemed unlikely given recently normal PSA, and his hospice records from June 2015 show that prostate cancer was listed as a medical condition not contributing to his terminal prognosis. Finally, the Board has considered whether the Veteran’s parotid cancer was produced by or due to treatment for his prostate cancer, but the records show, and the April 2020 VA examiner explained that the Veteran’s prostate was surgically removed, and radical prostatectomy is not known to cause a distinct cancer in a removed body part, like radiation might. The Veteran did not undergo radiation treatment for his prostate cancer. Therefore, the Board finds that secondary service connection is not warranted. Second, the Board also concludes that direct service connection is not warranted. The evidence does not establish that the Veteran’s presumed exposure to herbicides caused adenocarcinoma of the salivary gland. The April 2020 VA examiner specifically addressed this contention, and provided a negative nexus opinion. The examiner also explained that the Veteran was at increased risk for cancer, given his family history and his history of smoking, which was a very, very strong etiology. Third, the Board concludes that presumptive service connection is not warranted. The section relating to presumptive service connection for disabilities caused by exposure to herbicide agents lists “soft-tissue sarcoma” (emphasis added). See 38 C.F.R. § 3.309(e). The medical records show that the Veteran was not diagnosed with sarcoma, but rather adenocarcinoma. Additionally, while respiratory cancers are listed, the Board finds that the Veteran was not diagnosed with a respiratory cancer. He was diagnosed with cancer of the salivary gland, with metastases to the lung. The Veteran’s private treatment records and histopathology show that it was a primary parotid cancer, not a primary respiratory cancer. For these reasons, presumptive service connection is not warranted. The Board notes that the June 2015 and August 2017 VA examinations do not address all contentions, and are not inherently adequate to decide the claim. However, they adequately address the theory of secondary service connection. Therefore, the Board affords them some weight. Moreover, the April 2020 VA examination addresses all theories, and the Board affords it significant weight. As a whole, the record contains sufficient competent evidence for the Board to adjudicate the claim. While the Appellant believes that the Veteran’s adenocarcinoma of the salivary gland may have been caused by his exposure to herbicide agents or proximately due to his prostate cancer, there is no evidence to suggest that she is competent to provide a nexus opinion. The issue is medically complex, as it requires the interpretation of symptoms, history, and medical findings by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must rely on the competent medical evidence before it in forming its conclusion, and affords the Veteran’s private treatment records, along with the June 2015, August 2017, and April 2020 VA examinations significant weight. With respect to the examinations, particularly the April 2020 opinion, the examiner was fully informed of the pertinent facts, reviewed and addressed relevant evidence in the claims file, provided a fully articulated opinion, addressed the Appellant’s contentions, and supported the conclusion with a reasoned analysis based on review of literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the April 2020 opinion constitutes highly probative evidence against the claim. Overall, the Board affords the May 2017 article, the Mayo Clinic brochures, and the June 2017 opinion by Ms. H. little weight in its conclusions. First, the article and brochures deal with metastatic prostate cancer, and the evidence of greater weight, including the Veteran’s private treatment records, show that his prostate cancer was actually in remission. Therefore, the article and brochure do not apply to the Veteran’s unique situation; they specifically indicated what could happen “in theory,” and did not take into account the specifics of the Veteran’s circumstances. Additionally, they do not directly address the “more likely than not” standard. Regarding Ms. H.’s opinion, it was not supported by a fully reasoned rationale, nor did she indicate that the Veteran’s first cancer proximately caused his second cancer or address the “as likely as not” standard. The Board notes that the occurrence of a second cancer in 1-3 percent of patients is not adequate to meet the necessary legal standard. Therefore, the articles and Ms. H.’s opinion are inadequate to grant the claim. With the brochures, articles, and June 2017 private opinion being inadequate and receiving little weight, and two negative nexus opinion receiving some weight and one negative nexus opinion being adequate and receiving significant weight, the Board finds that the competent evidence is against the claim for service connection. The more probative evidence demonstrates no causation between the Veteran’s exposure to herbicides and adenocarcinoma of the salivary gland, and no proximate cause between prostate cancer and parotid cancer. Presumptive service connection is also not warranted. For these reasons, the Board finds that the Appellant’s claim for service connection including service connection for the Veteran’s cause of death on a direct or presumptive basis, or on a secondary basis, must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. 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.