Citation Nr: 21027320 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 18-42 395 DATE: May 5, 2021 ORDER Entitlement to service connection for pancreatic cancer is granted. Enter to service connection for cause of death is granted. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is moot and dismissed. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam from May 1969 to May 1970, and is presumed to have been exposed to herbicides. 2. The Veteran's pancreatic cancer was caused by, or proximately due to, herbicide exposure sustained during his active service. 3. The Veteran's death certificate lists metastatic pancreatic adenocarcinoma as the immediate cause of his death. 4. The grant of service connection for the cause the Veteran's death renders the appellant's claim for DIC under 38 U.S.C. § 1318 moot. CONCLUSIONS OF LAW 1. The criteria for service connection for pancreatic cancer have been met. 38 U.S.C. §§ 1110, 5107, 5121A (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.1010 (2020). 2. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2020). 3. The claim for entitlement to DIC pursuant to 38 U.S.C. § 1318 is dismissed. 38 U.S.C. § 1318 (2018); 38 C.F.R. § 3.22 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1969 to December 1970, to include service in the Republic of Vietnam. The Veteran died in April 2016. The appellant is the Veteran's surviving spouse, and has been properly substituted in this appeal. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2019, at which time the issues on appeal were denied. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, the Court granted a Joint Motion of the parties, vacated the Board's decision, and remanded the case to the Board for action consistent with the Joint Motion. Service Connection Pancreatic Cancer Prior to his death, the Veteran asserted that his pancreatic cancer was caused by exposure to herbicides sustained during his service in the Republic of Vietnam. At the outset, the Board notes that the Veteran's exposure to herbicide agents is conceded based upon a finding that he served in the Republic of Vietnam. In an October 2015 private medical statement, Dr. J.M. noted that the Veteran was exposed to Agent Orange during service and had definitively been diagnosed with pancreatic cancer. Dr. J.M. also noted that research had linked dioxins, an active ingredient in Agent Orange, to pancreatic cancer in a laboratory model. Ultimately, Dr. J.M. assessed that there was a reasonable and meritorious cause for the Veteran's claim for entitlement to service connection for pancreatic cancer, as due to Agent Orange exposure. In a January 2021 private medical opinion, Dr. C.K. opined that the Veteran's exposure to herbicides in Vietnam, and specifically to arsenic within Agent Blue, at least as likely as not was the cause of his pancreatic cancer. Dr. C.K. that arsenic was classified as a human carcinogen. Dr. C.K. also noted that the consensus of epidemiologic studies confirmed that arsenic was specifically linked to a higher risk, above the 50 percent threshold, of pancreatic cancer, independent of other factors. Additionally, Dr. C.K. reasoned that the Veteran did not possess any of the known risk factors for pancreatic cancer and had no known exposure to other carcinogens before or after his military service. Further, Dr. C.K. assessed that the latency of 44 years was entirely consistent with the known prolonged latency for arsenic-caused cancers, which was greater than 40 years. The Board finds that the January 2021 private medical opinion is adequate. In this regard, the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran and the appellant, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds that the January 2021 private medical opinion is the most probative evidence of record. The Board acknowledges that there is a November 2016 VA medical opinion of record that is against the claim. However, that opinion is inadequate as the examiner failed to provide a sufficient rationale for the conclusions reached. As such, the opinion is of no probative value and will not be further discussed in this decision. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the appellant, and entitlement to service connection for pancreatic cancer is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Cause of Death The appellant has asserted that the cause of the Veteran's death is etiologically related to his active service, specifically his pancreatic cancer. The Veteran died in April 2016 and his death certificate listed the immediate cause of death as metastatic pancreatic adenocarcinoma. As discussed above, the Board has found that the medical evidence of record is sufficient to support a finding that the Veteran's pancreatic cancer was etiologically related to his active service. As such, the Veteran's cause of death was service-connected. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DIC pursuant to 38 U.S.C. § 1318 Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased veteran's surviving spouse in the same manner as if the cause of the veteran's death was service connected, even though the veteran died of non-service-connected causes. See 38 U.S.C. § 1318(a) (2020). Therefore, 38 U.S.C. § 1310 and 38 U.S.C. § 1318 provide separate and alternative methods of obtaining VA dependency and indemnity compensation. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board's herein grant of service connection for the cause of the Veteran's death under the provisions of 38 U.S.C. § 1310 provide the greater benefit. Therefore, the matter of the appellant's alternative claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is rendered moot. Accordingly, the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed as no benefit remains to be awarded and no case or controversy remains. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.