Citation Nr: 21027809 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-27 067A DATE: May 6, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran's death certificate states that he died in March 1994. The immediate cause of death was listed as nasopharyngeal carcinoma (NPC). 2. The preponderance of the evidence is against a finding that the Veteran's NPC was incurred in or related to active service or otherwise related to herbicide exposure. CONCLUSION OF LAW The criteria have not been met for service connection for the cause the Veteran's death. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.310, 3.312, 20.1303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1965 to May 1967. He died on March [REDACTED], 1994. The Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Milwaukee Department of Veterans Affairs (VA) Pension Center. In August 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is of record and has been reviewed. This case was previously before the Board in March 2019 and November 2020 when it was remanded for additional development. The Board notes that in the November 2020 remand, the Appellant was asked to identify any relevant outstanding private treatment records and any other relevant evidence pertaining to this claim. In a November 2020 letter, the Appellant was notified of the VA's attempts to obtain any outstanding records and was requested to submit the authorized release forms (VA Form 21-4142). No response was received. Because of this, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). Service connection for the cause of the Veteran's death is denied. Legal Criteria 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, and 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). A 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; and 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). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Therefore, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. §§ 1113, 1116 and 38 C.F.R. §§ 3.307(d), 3.309(e). Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii) (2016). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994). See also 61 Fed. Reg. 41442 -41449, and 61 Fed. Reg. 57586 -57589 (1996). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Factual Background The Appellant asserts that service connection for the cause of the Veteran's death is warranted. She specifically contends that the Veteran should be service connected for NPC, as due to herbicide agents, which ultimately led to his March 1994 death. The Board notes that the cause of the Veteran's death, nasopharyngeal carcinoma, is not a presumptive condition under 38 C.F.R. § 3.309(e). At the time of his death in March 1994, the Veteran was diagnosed with nasopharyngeal carcinoma. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnoses associated with NPC or any nasopharyngeal condition. The Board notes that according to the Veteran's DD 214, he served in the Republic of Vietnam. Herbicide exposure is established. In March 2013, the Appellant submitted a Board decision for a different Veteran who also had NPC. In that decision, the Veteran's private medical doctor reported that the nasopharynx was part of the respiratory tract, and if Agent Orange was associated with respiratory tract carcinomas, then "certainly the nasopharynx was part of the upper respiratory tract." In that other Board decision, the Chief of Hematology Oncology at the VA medical facility reviewed the case and concluded that, based on the facts of that other veteran's situation, it was "very likely" that Agent Orange played a role in that other veteran's subsequent development of NPC. That VA physician indicated that he believed respiratory carcinomas should be considered medical conditions associated with Agent Orange. According to that VA physician, "As laryngeal carcinoma is a condition associated with Agent Orange, it seems patently obvious that NPC should also be included in the same way." He ultimately opined that, in that other veteran's case, "it is more likely than not that Agent Orange and dioxins exposure... was a proximal cause in [that veteran's] NPC..." The physician noted that inhaled herbicides and dioxins were known to permeate the respiratory tract that included the nasal pharynx. According to the VA Chief of Hematology Oncology, because lung and bronchial carcinomas as well as the larynx and trachea were considered related to service in terms of Agent Orange, the VA physician believed that it was "only logical" that the nasopharynx should be included as well. According to the VA physician, it was "only the rarity of this diagnosis that has prevented it from being included with the other respirators carcinomas." Another VA examiner noted that the cause of NPC was not always determined and that there was an association with Epstein-Barr virus. In the other Board opinion, the VA examiner stated that Agent Orange was well known to cause respiratory tract carcinomas such as laryngeal, tracheal, or bronchial carcinoma. However, there was no medical literature that linked NPC with Agent Orange. The VA examiner reported that it was "conceivable" that Agent Orange may cause NPC since the nasopharynx was part of the respiratory tract and "this hypothesis is very plausible but not proven yet." Because of this, the VA examiner stated that "even though it is highly likely that the [Veteran's] NPC was caused by exposure to Agent Orange, such a connection cannot be established with certainty until VA does a study or changed policies to connect NPC with Agent Orange exposure. Otherwise the connection is anecdotal." In the March 2019 remand, the Board ordered the RO to obtain a medical opinion addressing this other Board decision that the Appellant submitted in March 2013. In the subsequent June 2020 VA opinion, the examiner noted that the Veteran had a history as a cigar smoker. The examiner opined that the Veteran's NPC and subsequent cause of death was less likely than not related to his active service, including herbicide and Agent Orange exposure. The rationale was that NPC arises from the epithelial lining of the nasopharynx and is rare in the US and Western Europe. Additionally, despite what the VA Chief of Hematology Oncology opined in the other Board decision, according to the June 2020 examiner, anatomically, NPC is considered a head and neck carcinoma. As the examiner explained, the nasopharynx is made up of the structures from the part of the throat that is behind the nose. "It is important to note the epidemiological risk factors for nasopharynx cancers are different from the cancers that occur in the oral cavity and oropharynx, as well as the lungs and respiratory system." According to the June 2020 examiner, "One should not assume that anatomic location of cancer (i.e., HEAD and NECK) and/or organ system (i.e., RESPIRATORY TRACT) determines the associated risk factors for the cancer." The examiner explained that the appropriate method to determine a specific cancer's risk factors was by epidemiologic analysis (study of populations). Identified epidemiologic analysis of herbicides/Agent Orange and NPC revealed multiples studies with no statistically significant increase in NPC. The June 2020 examiner cited the Korean Veterans Health Study, which followed 185,639 male veterans who were alive in 1992 for cancer incidence through 2003 and for mortality through 2005, from cancers of the oral cavity, nasal cavity, and pharynx. No differences in NPC incidence were observed for the Korean veterans. The June 2020 VA examiner explained that this study was reported in 2014, after the Appellant submitted the other Board decision in March 2013. In conclusion, the June 2020 VA examiner reported that there was "inadequate or insufficient" evidence to support herbicides/Agent Orange as a contributory risk factor for NPC. According to the examiner, the large Korean study had adequate numbers of Vietnam veterans to evaluate NPC risk factors along with another well-designed New Zealand cohort study evaluating herbicides/Agent Orange exposure equivalents, combined with absent herbicides/Agent Orange animal laboratory nasal tissue test results, were consistent with the "inadequate or insufficient" evidence determination. According to the VA examiner, the Veteran's NPC and subsequent cause of death was more likely than not related to his history of cigar smoking. People who have smoked are at an increased risk of NPC. That risk is higher in long-term smokers. In a large cohort study of 101,823 Chinese adults, the findings showed a statistically significant dose-response trend between smoking amount and smoking cumulative consumption and risk of NPC. These results supported the conclusion that smoking was one of the risk factors likely to be causally associated with NPC. Additionally, although there was a large body of evidence supporting the role of Epstein-Barr virus (EBV) as a primary causal agent in the pathogenesis of NPC, without additional medical record information, the June 2020 VA examiner was unable to opine whether EBV was a contributing factor without resorting to mere speculation. The VA examiner reported that "a complete review of the provided medical records reveals NO other discovered medical conditions present at the Veteran's death and as likely as not the cause of, or a significant contributing condition leading to, the Veteran's death." Analysis Although the Board strives for consistency in issuing its decisions, previously issued Board decisions are, by law, not precedential or binding on other cases. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case but each case presented to the Board will be decided on the basis of the individual facts of the case in light of the applicable procedure and substantive law. 38 C.F.R. § 20.1303. While the Appellant is competent to observe the Veteran's symptoms, she does not have the training or credentials to provide a competent medical opinion as to a specific diagnosis or the onset date of such diagnosis concerning the Veteran's nasopharyngeal carcinoma, and whether it was related to his time in the military, to include herbicide exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the June 2020 VA opinion, indicating no nexus between the Veteran's diagnosed nasopharyngeal carcinoma to his active service, constitutes the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Appellant provided a separate Board decision concluding that, in that case, that Veteran's NPC was caused by herbicide exposure, as noted above, Board decisions are not precedential. The June 2020 negative nexus opinion outweighs the positive nexus opinion from that other, nonprecedential, case. (Continued on next page) Given the above, the preponderance of the evidence is against service connection for the cause of the Veteran's death. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.