Citation Nr: 21030456 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-04 830 DATE: May 19, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is denied. Entitlement to accrued benefits based on a pending claim for entitlement to service connection for esophageal cancer is denied. FINDINGS OF FACT 1. The Veteran died in November 2011 and the official death certificate listed the immediate cause of death as septic shock. Aspiration pneumonia and metastatic esophageal cancer are listed as contributing causes. 2. At the time of the Veteran's death, he was not service connected for any disability. 3. The Veteran served in the Republic of Vietnam and Camp Lejeune; exposure to herbicides and contaminated water is presumed. 4. The preponderance of the evidence is against a finding that the Veteran's cause of death manifest in service or are otherwise related to service, including herbicide exposure and contaminated water. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C. §§ 1110, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.313. 2. The criteria for service connection for accrued benefits purposes for esophageal cancer have not been met. 38 U.S.C. §§ 1110, 5107, 5121; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.1000, 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1967 to December 1971, to include service in the Republic of Vietnam and Marine Corps Base Camp Lejeune. The Veteran died in November 2011. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded these issues for further development. The Board finds substantial compliance with its remand directives has occurred. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death 2. Entitlement to accrued benefits based on a pending claim for entitlement to service connection for esophageal cancer The appellant seeks service connection for the cause of the Veteran's death for purposes of entitlement to DIC benefits. Pursuant to 38 U.S.C. § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. See 38 U.S.C. § 1310; Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312 (b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312 (c)(1). Generally, accrued benefits are benefits that are due but unpaid to which a veteran was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death, and are payable to the living first person in the following list (in this order): the veteran's surviving spouse; the veteran's children; and the veteran's dependents. 38 U.S.C. § 5121 (a)(2)(B); 38 C.F.R. § 3.1000. There is no basis for an accrued benefit claim unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). In other words, to support a claim for accrued benefits, the deceased veteran (or other payee) must have had a claim pending (filed but not finally adjudicated by VA) at the time of his or her death, or otherwise have been entitled to the benefits under an existing. Accrued benefits are those benefits to which an individual was entitled at the time of death under an existing rating or based on evidence in the file at the date of death, and which were due and unpaid at the time of death. See 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). Upon the death of a beneficiary, any accrued benefits are payable to his or her spouse, or to specific others if the spouse is not alive. 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In determining whether a veteran's death was service connected, the first element is always satisfied in that the present disability is the condition that resulted in the veteran's death. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed.Cir.1999). Service connection for certain chronic diseases, including hypertension, psychosis, cardiovascular disease, sensorineural hearing loss, and arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303 (b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303 (b). If a veteran was exposed to an herbicide agent during active military, naval, or air service in Vietnam, then certain diseases are considered service connected even though there is no record of such disease during service. For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e), 3.313. However, this disability is not on that list of presumed list of problems associated with exposure to herbicides such as Agent Orange. In order to establish presumptive service connection for a disease associated with exposure to CLCW, a veteran, former reservist, or member of the National Guard must show the following: (1) that he or she served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309 (f); and (3) that the current disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(7), 3.309 (f). The enumerated diseases associated with exposure to contaminants in the water supply at Camp Lejeune are as follows: (1) Kidney cancer, (2) Liver cancer, (3) Non-Hodgkin's lymphoma, (4) Adult leukemia, (5) Multiple myeloma, (6) Parkinson's disease, (7) Aplastic anemia and other myelodysplastic syndromes, (8) Bladder cancer. 38 C.F.R. § 3.309 (f). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to herbicides is not precluded from establishing service connection for such disability as due to herbicide exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The appellant contends that the Veteran's death is due to his esophageal cancer as a result of his presumed exposure to herbicides and/or contaminated water from Camp Lejeune during his military service. The Veteran died in November 2011 and the official death certificate listed the primary cause of death as septic shock. Aspiration pneumonia and metastatic esophageal cancer are listed as contributing causes. In this case, the Veteran submitted a claim for entitlement to service connection for metastatic adenocarcinoma of the distal esophagus, diagnosed in January 2010, almost 40 years post-service. Unfortunately, the Veteran died in November 2011 and was not service connected for any disabilities at that time. The appellant is his surviving spouse, and she has been substituted for the purpose of continuing the Veteran's claim of entitlement to service connection for esophageal cancer, which was pending before VA at the time of the Veteran's death. As the Veteran served in Vietnam during the Vietnam Era, he was presumed to have been exposed to herbicide agents in service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. Additionally, service treatment records document the Veteran's presence at Camp Lejeune from March 1970 through December 1971 during his service. The Veteran's service treatment records are silent for any complaints, findings, treatment, or diagnoses related to esophageal cancer. In his December 1971 Report of Medical Examination conducted at separation, the Veteran was noted to have a normal mouth and throat with no esophageal conditions listed. Post-service treatment records do not show any complaints, findings, treatment, or diagnoses related to esophageal cancer in the year following the Veteran's separation from service. In fact, the Veteran was not formally diagnosed with esophageal cancer until 2010, nearly 40 years after separation from service. In support of the claim, the appellant submitted two positive private nexus statements from Dr. P.S.R. and Dr. E.M.G. who had treated the Veteran. They both cited to a May 1990 study by Admiral E. R. Z. and indicated it was at least as likely as not that the Veteran's esophageal cancer was due to exposure to herbicide agents during his service. Subsequently, in December 2013, a VA examiner opined that the Veteran's esophageal cancer was not due to service. Instead the VA examiner attributed the Veteran's esophageal cancer to his history of smoking and drinking alcohol. The examiner also found that there was at most inadequate/insufficient or limited/suggestive evidence that esophageal cancer was associated with solvents found in the contaminated water at Camp Lejeune. While Dr. P.S.R and Dr. E.M.G. both linked the Veteran's esophageal cancer to Agent Orange exposure, they did not acknowledge or explain the role, if any, that the Veteran's smoking and drinking history may have played in the development of the cancer (which is clearly noted in the record). Moreover, they did not articulate how, from a medical standpoint, specifically this Veteran's cancer is related to Agent Orange, other than generally referring to a May 1990 study. Similarly, the December 2013 VA examiner did not address the extent, if at all, the May 1990 study would bear on this case. As such, the Board affords these opinions low probative value. A Veteran's Health Administration (VHA) specialist opinion was obtained in June 2018. Dr. J.R. an oncology specialist provided a negative nexus opinion based largely on his own observation that the Veteran's esophageal cancer was diagnosed as squamous cell carcinoma, which is inaccurate as the January 2010 biopsy noted "esophageal mass, biopsy: moderately differentiated infiltrating adenocarcinoma." As Dr. J.R.'s opinion was based on an inadequate factual premise, the Board affords it no probative value. In March 2019, the Board remanded the claim for an additional opinion regarding the etiology of the Veteran's esophageal cancer. The November 2020 VA examiner provided a negative nexus opinion between the Veteran's esophageal cancer and herbicide exposure and/or contaminated water at Camp Lejeune. The Board affords the November 2020 VA examiner's high probative value as he reviewed all of the Veteran's records, discussed the relevant medical literature (including the Dr. Y.U. report submitted by the appellant) and gave a through rationale and reasons in support of his opinion. Further, a board-certified oncologist Dr. Y. C. C. agreed with the medical opinion. As discussed above, the appellant contends that the Veteran's cause of death is related to his exposure to herbicide agents in Vietnam and/or contaminated water from Camp Lejeune. The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C. § 1116 ; 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 ; 38 C.F.R. § 3.307 (d) are also satisfied. The list of diseases afforded this presumption was expanded by an August 2010 amendment to 38 C.F.R. § 3.309 (e) to include chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. Although there is clear evidence that the Veteran served in Vietnam and thus is presumed to have been exposed to herbicide agents; esophageal cancer is not listed among the diseases enumerated under 38 C.F.R. § 3.309 (e); consequently, the herbicide presumptive provisions of 38 U.S.C. § 1116 do not apply as to that disability. The Veteran's service records reveal he was stationed at Camp Lejeune, North Carolina for more than 30 days during the potential exposure period. Therefore, the Veteran's exposure to CLCW is conceded. However, the Veteran's condition is not included on the list of diseases subject to presumptive service connection for contaminated water exposure at Camp Lejeune. See 38 C.F.R. § 3.309 (f). As provided above, a Veteran who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to herbicides or contaminated water is not precluded from establishing service connection for such disability as due to herbicide exposure with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). There is, however, no competent evidence in the record of a possible nexus between herbicide exposure and/or contaminated water exposure and the Veteran's cause of death of esophageal cancer. The Board acknowledges the appellant's statements that the Veteran's death was due to esophageal cancer related to his exposure to herbicides in Vietnam and/or contaminated water at Camp Lejeune. Although the appellant is competent to report the Veteran's symptoms which she observed, she is not competent to provide a nexus opinion regarding the nature and etiology of his esophageal cancer. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the diagnosis and etiology of the Veteran's esophageal cancer, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board is highly sympathetic towards the Appellant's loss of her spouse. However, it is important for the appellant to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. The competent medical evidence of record does not support a finding of service connection for the Veteran's cause of death. The Board cannot ignore the medical opinions obtained. Because the Veteran's esophageal cancer is not service connected, while it was listed as a cause of death, it cannot be the basis for the finding of service connection for cause of death. The service and post-service treatment records only provide more probative evidence against this claim, indicating a problem that began decades after service with no connection to service. (Continued on the next page) Based on the foregoing, the Board finds that the requirements for service connection for the Veteran's cause of death have not been met. 38 U.S.C. §§ 1110, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.313. As the preponderance of the evidence is against the appellant's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, service connection for the Veteran's cause of death and entitlement to accrued benefits is not warranted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.