Citation Nr: 21028693 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 12-04 644 DATE: May 11, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during a time in which herbicide exposure is presumptive. 2. The most recent version of the Veteran's death certificate shows that he died in March 2010 and that the immediate cause of death was squamous cell carcinoma with metastatic lesions to the lungs, pancreas, bladder, brain, and bones due to or as a consequence of prostate cancer. 3. The most probative evidence shows that the Veteran's primary bladder cancer metastasized to other parts of his body and was the underlying cause of his death. CONCLUSION OF LAW The requirements for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1116 (as amended by Section 9109 of the National Defense Authorization Act of Fiscal Year 2021), 1310; 38 C.F.R. §§ 3.5(a), 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to August 1968. He died in March 2010, and the appellant is seeking benefits as his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA). The Board remanded the case in September 2014 to schedule the appellant for a hearing. The requested hearing was held before the undersigned Veterans Law Judge in April 2015. A transcript of the hearing is of record. In a March 2018 decision, the Board denied the claim. In a November 2018 decision, the Board denied the appellant's motion for reconsideration. The appellant appealed the Board's March 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 memorandum decision, the Court vacated the Board's decision and remanded the case to the Board. The appellant is now represented by the above-named accredited representative, and a VA Form 21-22a is of record. Law and Analysis Dependency and indemnity compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). 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. 38 C.F.R. § 3.312(a). A 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 and must be shown to have contributed substantially or materially to death; combined to cause death; or 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 determining whether the disorder that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran who served in the Republic of Vietnam between January 9, 1962, and 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) and 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(d); see also VAOGCPREC 18-97 (May 2, 1997) (holding that presumptive service connection may not be established under these provisions if the cancer listed developed as a result of metastasis of a cancer not associated with herbicide exposure). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), including prostate cancer and respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) manifested to a compensable degree at any time after service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). Section 9109 of the National Defense Authorization Act of Fiscal Year 2021 added three diseases to the list, including bladder cancer (to be codified at 38 U.S.C. § 1116(a)(2)(J)). Although this law did not contain an effective date and has not yet been codified, in the absence of such guidance, it must be presumed that the law became effective upon its enactment on January 1, 2021. See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) ("It is well established that, absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment."). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is warranted for service connection for the cause of the Veteran's death. Initially, the record does not reflect, nor does the appellant contend that the Veteran's established service-connected disabilities (posttraumatic stress disorder (PTSD) with bipolar disorder, bilateral hearing loss, tinnitus, shell fragment wounds of the left deltoid and posterior chest, and healed perforation of the left ear drum) were related to his death. Rather, the appellant has contended that the Veteran's death from metastasized cancer was due to a primary cancer caused by his in-service exposure to Agent Orange. Regarding the claimed in-service herbicide exposure, the Veteran's service personnel records show that he received a Purple Heart for wounds received in action in the Republic of Vietnam in 1968. The Board accordingly finds that he served in the Republic of Vietnam during a time in which herbicide exposure is presumptive, and the presumed exposure constitutes an in-service event. The Board also finds that the most probative evidence shows that the Veteran's primary bladder cancer metastasized to other parts of his body and was the underlying cause of his death. The record shows that there is a difference in opinion among the medical professionals as to where the cancer originated the bladder or the prostate. In this regard, the Veteran's original death certificate shows that he denied in March 2010 and that the immediate cause of death was squamous cell carcinoma with mets. The death certificate was amended twice, first in June 2010 to change the immediate cause of death to squamous cell carcinoma with metastatic lesions to the lungs, pancreas, bladder, brain, and bones, then in September 2011 to change the immediate cause of death to squamous cell carcinoma with metastatic lesions to the lungs, pancreas, bladder, brain, and bones due to or as a consequence of prostate cancer. Nevertheless, there is no accompanying explanation as to why the changes to the death certificate were made. In a January 2011 written statement, Dr. S.S., indicated that he treated the Veteran for a metastatic tumor and a pathologic fracture of his right femur beginning in October 2009 when he sustained the fracture. He further indicated that the Veteran was noted at that time to have prostatic hypertrophy and ultimately, transitional renal cell carcinoma, metastatic to his femur, with the pathology showing a metastatic poorly differentiated carcinoma. Dr. S.S. determined that it was highly likely that this metastatic disease contributed to the cause of the Veteran's death. In a separate January 2011 written statement, Dr. N.A. indicated that he treated the Veteran for his cancer beginning in December 2008, and the Veteran was referred to home hospice in December 2009. He determined that the cancer present in the Veteran's prostate may have contributed to his death. These medical opinions are of limited, if any, probative value on the question of whether the Veteran had primary prostate cancer because they only suggest, but do not clearly address, that matter. The opinions also do not contain complete rationales as to prostate cancer as a contributory cause of death. In a November 2011 medical opinion, a VA examiner noted that he reviewed the claims file, including the actual treatment records, and agreed with the Veteran's treatment providers that he had transitional cell carcinoma with primary bladder cancer that metastasized to his lungs, bones, and prostate. In so finding, he noted that the Veteran appeared to have two different primary tumor sites: (1) squamous cell carcinoma of the tonsil in 2008 that was treated with surgery, radiation, and chemotherapy and (2) a pathologic femur fracture in 2009 that showed transitional cell carcinoma when biopsied. The examiner explained that transitional cell carcinoma arises from the bladder and is not a primary lung- or prostate-type cancer, even though this type of cancer can be found in those locations. In addition, he indicated that there was no evidence in the record that the Veteran had primary prostate or lung cancer. The examiner's determination, which addresses the central medical issue of the underlying primary cancer in this case, was based on an analysis of the evidence and current medical understanding, and it is therefore entitled to probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (an examination is not rendered inadequate where the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion"); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The private treatment records from the cancer specialists treating the Veteran support the VA examiner's findings. For example, the record shows that the Veteran was treated for tonsil cancer from 2008 to 2009. In a March 2009 treatment record, Dr. N.A. noted that the Veteran did not have any evidence of recurrence of disease or any residual side effects from the treatment. In October 2009, the Veteran presented to Dr. S.S. with a pathologic fracture of the right femur. The impression included pathologic fracture of the right femur, probably due to metastatic disease, as well as genitourinary problems with apparent prostatic hypertrophy, possible prostatic cancer, with a plan for a biopsy and other testing as indicated. The resulting surgical pathology report from October 2009 shows a final diagnosis of metastatic poorly differentiated carcinoma. The pathologist additionally noted in the report that microscopic examination indicated that the histologic and immunophenotypic findings were those of a metastatic poorly differentiated carcinoma suggestive of a urothelial primary, with other findings arguing against a colon or lung primary. In the operative report for the femur fracture repair and tumor excision from the same day, Dr. S.S. noted that the earlier workup showed multiple pulmonary lesions and a questionable bladder cancer. The Veteran's case was presented at the sarcoma conference the next week, and Dr. S.S. noted in the progress notes that the suspicion was that this was indeed a transitional cell carcinoma of the bladder. The plan was to perform a cystoscopy and biopsy with evaluation for radiation therapy. See also, e.g., Mayo Clinic, "Bladder Cancer" (defining urothelial cells as those that line the inside of the bladder, also found in the kidneys and the tubes (ureters) that connect the kidneys to the bladder; noting that urothelial carcinoma is also known as transitional cell carcinoma), https://www.mayoclinic.org/diseases-conditions/bladder-cancer/symptoms-causes/syc-20356104 (reviewed April 2021). In later October 2009, the Veteran saw Dr. J.W. who noted that he saw the Veteran regarding what appeared to be a metastatic bladder cancer. He noted that a CT scan of the pelvis at the time of the surgery showed a destructive mass involving the right proximal femur, right inguinal lymphadenopathy highly suspicious for malignant lymphadenopathy, a right adrenal mass highly suspicious for metastatic disease, multiple bilateral lower lobe pulmonary nodules compatible with hematogenous pulmonary metastasis, and a thick-walled urinary bladder that was nonspecific but concerning for a uroepithelial neoplasm. The impression included the findings similar to the pathology report of poorly differentiated carcinoma that was most consistent with a primary bladder cancer, with metastatic disease to the lungs and bones. The plan was to consider a cystoscopy to look for a bladder primary, as well as radiation therapy and palliative chemotherapy. Dr. J.W. also noted that he talked about how chemotherapy for metastatic bladder cancer, as well as many other cancers, could result in significant improvement in quality of life and prolonging survival. In December 2009, Dr. N.A. detailed the history of the Veteran's 2008 and 2009 treatments, including the recent decision to also start him on palliative chemotherapy because of symptomatic metastatic disease. CT scans and a bone scan were noted to have findings consistent with pulmonary (lung) and various bones metastatic disease. A January 2010 orthopedic surgery note from Dr. S.S. shows that the Veteran came in for follow-up for the right femur fracture noted as secondary to bladder cancer. In summary, although the record does not refect that a cystoscopy was performed prior to the Veteran's death, the treatment records as detailed above support the finding that he had primary bladder cancer that metastasized to other parts of his body, making it the underlying cause of his death. The list of diseases presumptively associated with herbicide exposure now includes bladder cancer. Based on the foregoing, the Board concludes that service connection is warranted for the cause of the Veteran's death. In reaching this determination, the Board notes that the November 2011 VA examiner did determine that the Veteran's biggest risk factor for development of his bladder cancer was his extensive smoking history. However, the opinion as written is not sufficient to rebut the presumption of service incurrence of the disease in this case. In addition, in light of the grant of the claim in full based on a presumptive herbicide exposure disease, any possible development to explore whether the prostate cancer was the primary cancer to grant on that same basis is unnecessary in this case. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Postek, 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.