Citation Nr: 21051018 Decision Date: 08/18/21 Archive Date: 08/18/21 DOCKET NO. 13-08 411 DATE: August 18, 2021 REMANDED Entitlement to service connection for pancreatic cancer, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to August 1970. The Veteran died in July 2010. See August 2010 Death Certificate. The appellant, the Veteran's surviving spouse, has been properly substituted in this case. See December 2012 VA memorandum. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the appellant testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer employed with the Board. In a March 2018 letter, the appellant was notified that the VLJ who conducted the April 2016 hearing was no longer available, and of her right to another Board hearing. See March 2018 BVA Letter. Thereafter, the appellant testified at a Board hearing before the undersigned VLJ in June 2019. Copies of both hearing transcripts have been associated with the claims file. By way of background, these matters were initially before the Board in June 2016, when they were remanded for additional development. See June 2016 BVA Decision. In December 2019, the Board, in pertinent part, denied the claims of entitlement to service connection for lower extremity condition, diabetes mellitus, pancreatic cancer, and for the cause of the Veteran's death, and the appellant appealed the December 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). See December 2019 BVA Decision. In December 2020, the Court granted the parties' Joint Motion for Partial Remand (JMPR) vacating and remanding the portions of the December 2019 Board decision that denied entitlement to service connection for diabetes mellitus and pancreatic cancer, both to include as due to herbicide exposure for accrued purposes, and entitlement to service connection for the cause of the Veteran's death. See December 2020 CAVC Decision. 1. Entitlement to service connection for pancreatic cancer, to include as due to herbicide agent exposure, is remanded. The appellant states that the Veteran's diagnosed pancreatic cancer was caused by exposure to herbicides, to include Agent Orange, during service. See, e.g., April 2016 Hearing Transcript, pages 10-12. The Veteran's service treatment records (STRs) are silent for any complaints, diagnoses, or treatment for pancreatic cancer. See September 2003 STR Medical. A review of the service personnel records (SPRs) confirms that the Veteran participated in operations against hostile forces in the Republic of Vietnam from August 1969 to August 1970. See February 2015 Military Personnel Record. In addition, the Veteran's DD-214 shows that he received the Vietnam Service Medal with one star, the Vietnam Campaign Medal with device, and the Republic of Vietnam Cross of Gallantry with palm and frame. See May 2010 DD 214 Certified Original - Certificate of Release or Discharge from Active Duty. Accordingly, exposure to herbicide agents is conceded. A review of the post-service treatment records shows an April 2010 abdominal CT scan, which revealed multiple hepatic lesions consistent with metastatic foci, a large mass involving the Veteran's pancreas tail, splenic hilum, anterior left kidney, and adrenal gland, satellite soft tissue nodules in the left perinephric space, greater omentum, and inferior mesentery, a right posterior subcutaneous nodule, and subcentimeter pulmonary nodules. Thereafter, the Veteran underwent a biopsy and was subsequently diagnosed with metastatic pancreatic cancer. See May 2018 CAPRI. VA obtained a medical opinion regarding the etiology of the Veteran's diagnosed pancreatic cancer in August 2017. After reviewing the evidence of record, the examiner stated that pancreatic cancer had never been shown to be related to or caused by Agent Orange and indicated that there was no evidence that the Veteran had pancreatic cancer during service. See August 2017 C&P examination. In support of her claim, the appellant submitted a medical opinion from Dr. Syed R. Baber, dated in January 2021. After reviewing the Veteran's claims file and current literature, Dr. Baber opined that it was at least as likely as not that the Veteran's pancreatic cancer was etiologically related to herbicide agent exposure during service. In support of his opinion, Dr. Baber explained that Agent Orange is comprised of benzene and dioxin. To this end, he noted that benzene has been shown to be a significant risk factor in the global epidemic of disease process, even in the smallest dose, and cited data that suggested an association between exposure to benzene, epigenetic alterations, and an increased susceptibility to development of several diseases, to include cancer and inflammatory diseases. Dr. Baber also referenced multiple studies that showed a strong nexus between pancreatic cancer and dioxin and noted that the inherent properties of both chemicals had the propensity to remain dormant in the human body for decades before symptoms manifested. In addition, Dr. Baber acknowledged additional risk factors for pancreatic cancer, including smoking, age older than 55 years old, diabetes, obesity, chronic pancreatitis, cirrhosis of the liver, helicobacter pylori infection, work exposure to chemicals, sex, race, and family history. However, Dr. Baber stated that the question at issue was whether Agent Orange itself caused the Veteran to develop pancreatic cancer. In this regard, Dr. Baber noted that statistical analysis of dose, exposure time, and latency contaminants, along with biological sciences, could establish that risk factors were causal. However, as none of the variables had been individualized to the Veteran, Dr. Baber concluded that, while there were multiple putative carcinogenic agents in Agent Orange which could have had an indirect influence on the Veteran's development of pancreatic cancer, benzene had significant carcinogenic potential. Thus, Dr. Baber opined that it was at least as likely as not that the Veteran's diagnosed pancreatic cancer was etiologically related to exposure to herbicide agents during service. See January 2021 Medical Treatment Record Government Facility. After a review of the evidence of record, the Board finds that a remand is warranted to obtain an addendum opinion to determine the nature and etiology of the Veteran's diagnosed pancreatic cancer. In this regard, the Board finds that the August 2017 VA medical opinion was based, at least in part, on the examiner's finding that pancreatic cancer had never been shown to be related to or caused by Agent Orange. See August 2017 C&P examination. However, as noted above, Dr. Baber referenced multiple studies that indicated a nexus between pancreatic cancer and dioxin in his January 2021 private medical opinion. In addition, the Board notes that, in his January 2021 private medical opinion, Dr. Baber noted that multiple risk factors unrelated to herbicide agent exposure, to include smoking, age older than 55 years old, diabetes, obesity, chronic pancreatitis, cirrhosis of the liver, helicobacter pylori infection, work exposure to chemicals, sex, race, and family history have an influence on the development of pancreatic cancer. In addition, Dr. Baber noted that biological sciences and statistical analyses of dose, exposure time, and latency variables which could have established that risk factors were causal, had not been individualized to the Veteran. In spite of the aforementioned findings, Dr. Baber concluded that, it was at least as likely as not that the Veteran's diagnosed pancreatic cancer was etiologically related to exposure to herbicide agents during service. In reaching this conclusion, however, the Board notes that Dr. Baber appears to have dismissed the additional risk factors for pancreatic cancer without proffering further explanation for such dismissal. See January 2021 Medical Treatment Record Government Facility. Accordingly, the Board finds that a Remand is necessary to obtain another VA opinion in order to properly adjudicate the issue on appeal. 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, is remanded. The appellant states that the Veteran had diabetes mellitus, which was caused by exposure to herbicides agents, to include Agent Orange, during service. See, e.g., April 2016 Hearing Transcript, pages 10-12. In addition, in an August 2019 statement, the appellant noted that the Veteran only underwent one hemoglobin A1c (HbA1c) blood test, which revealed results outside of the normal range. In this regard, the appellant cited research from the National Library of Medicine, the National Institute of Health, and the American Diabetes Association, which indicate that HbA1c is the most reliable method of diagnosing longterm diabetes. The appellant further noted that, from April to June 2010, the Veteran's blood glucose levels tested above the normal range, which she identified as ranging from 70 through 100, 20 times. To this end, the appellant noted that the Veteran was not a "big believer" in visiting doctors and stated that he chose to treat his diabetes with daily exercise and natural Chinese herbs. Alternatively, the appellant stated that the Veteran's diabetes may have been caused or aggravated by his pancreatic cancer. See August 2019 VA Form 21-4138 Statement in Support of Claim. The Veteran's STRs are silent for any complaints, diagnoses, or treatment for diabetes mellitus. See September 2003 STR Medical. However, as noted above, herbicide agent exposure has been conceded. A review of the post-service treatment records shows that the Veteran underwent an agent orange registry examination in April 2006. During the examination, the Veteran denied symptoms of diabetes. Thereafter, a June 2006 primary care new patient evaluation shows that the Veteran had not been diagnosed with diabetes mellitus, and he subsequently indicated that he was not a diabetic and did not take oral medications for diabetes in April 2010, May 2010, and June 2010. However, the Veteran also indicated that he was seeking service connection for diabetes due to Agent Orange exposure during a June 2010 palliative care team consultation. See July 2006 Medical Treatment Record Government Facility; February 2013 CAPRI. Between April and June 2010, the Veteran's VA treatment records show blood sugar readings that exceeded 126 on six occasions. Specifically, the Veteran's blood sugar reading was 144 on April 20, 2010; 250 on May 24, 2010; and 136 on June 6, 2010. He also had blood sugar readings of 165, 140, and 147 from May 26-27, 2010. See March 2018 Medical Treatment Record Government Facility. In support of the claim, the appellant submitted a letter from Dr. Doron Nuchovich, dated in August 2010. Dr. Nuchovich stated that he believed that diabetes mellitus was a factor in the Veteran's death. See August 2010 Medical Treatment Record Non-Government Facility. An August 2010 affidavit of medical amendment to Florida certificate of death lists the immediate causes of death as cardiorespiratory arrest, failure to thrive, diabetes mellitus, and pancreatic cancer. Peripheral neuropathy was noted to be a significant condition contributing to death. The examiner explained that the certificate was amended because he forgot to take other medical conditions that contributed to the Veteran's death into consideration when he signed the original document. See December 2010 Death Certificate. VA obtained an addendum medical opinion in October 2010. After reviewing the Veteran's claims file and administrative records, the examiner opined that that the Veteran's death was not caused by or the result of type II diabetes mellitus. In support of his opinion, the examiner stated that the Veteran had not been diagnosed with type II diabetes mellitus. To this end, the examiner noted that the Veteran's medical records did not show persistent hyperglycemia and he had not been given hyplglycemics or insulin. The examiner acknowledged that the Veteran had a glucose level of 250 in May 2010 but indicated that the elevated reading was likely caused by intravenous dextrose, food, stress, and medications/chemotherapy. Rather, the examiner noted that the Veteran developed hyperglycemia because his pancreatic cancer, which was one class or type of diabetes, caused pancreatic insufficiency and decreased insulin production. In this regard, the examiner noted that type II diabetes caused additional symptoms, to include insulin resistance and abnormal insulin secretion, excessive hepatic glucose production, and abnormal fat metabolism, which were not present in the Veteran. The examiner further noted that type II diabetes was differentiated from other causes of diabetes by patient characteristics, history, and laboratory studies. In this regard, the examiner noted that multiple disabilities caused diabetes, to include diseases of the exocrine system and endocrine abnormalities, and that it could be induced by drugs that impair glucose tolerance by inhibiting insulin secretion, increasing hepatic glucose production, or causing insulin resistance. See October 2010 Medical Treatment Record Government Facility. VA also obtained an addendum medical opinion in August 2017. After performing a review of the claims file, the examiner opined that there was no evidence that the Veteran was diagnosed with diabetes mellitus. To this end, the examiner stated that he was certain that the Veteran did not have diabetes and that inclusion of such on the Veteran's death certificate was an unmistakable error. In this regard, the examiner reported that only one of the Veteran's blood sugar readings was over 126, which was recorded while the Veteran was receiving an IV infusion containing glucose and noted that there were no treatment records related to diabetes. In addition, the examiner found that the Veteran's blood sugars and HbA1C were not consistent with diabetes. See August 2017 C&P examination. In support of her claim, the appellant submitted an email she received from a registered nurse, E.R., dated in July 2019. In the email, the nurse noted that she had experience in bill review and indicated that she had been asked to review the Veteran's claims file in connection with the opinion. E.R. reported that the Veteran had an HgbA1C of 6.0 in August 2009 and noted that the facility where the blood was drawn indicated that the normal results ranged from 4.2 to 5.8. In addition, E.R. stated that the Veteran had frequent blood glucose levels drawn that were outside the normal range. See August 2019 Email Correspondence. The Veteran also submitted a private medical opinion from Dr. Baber, dated in January 2021. After reviewing the evidence of record, Dr. Baber opined that the Veteran's diagnosed diabetes mellitus was likely due to his exposure to Agent Orange. In support of his opinion, Dr. Baber noted that the literature indicated that there was a strong link between dioxin and benzine, two toxicants present in Agent Orange, and diabetes mellitus. In this regard, Dr. Baber noted that Benzine exposure had been shown to be a risk factor in the global diabetes epidemic. As such, although Dr. Baber noted that the Veteran had other risk factors that may also have caused his type II diabetes mellitus, such did not negate the claim that his in-service herbicide agent exposure also caused his diabetes. As such, Dr. Barber opined that it was at least as likely as not that the Veteran's diabetes mellitus was caused by his exposure to benzene and dioxin toxicants in Agent Orange during service. See March 2021 February 2021 Medical Treatment Record Non-Government Facility. Following a review of the evidence of record, the Board finds that a remand is warranted to obtain an addendum medical opinion to reconcile and/or address the conflicting medical evidence of record regarding the Veteran's claimed diabetes mellitus. In this regard, the Board finds that the evidence of record is unclear as to whether the Veteran has been diagnosed with diabetes mellitus. To this end, the Board notes that the August 2010 private medical opinion from Dr. Nuchovich does not indicate how the physician determined that the Veteran had diabetes mellitus as his medical records do not show any treatment for or diagnoses of such. See August 2010 Medical Treatment Record Non-Government Facility. Thus, the Board finds that Dr. Nuchovich's August 2010 medical opinion lacks adequate rationale for the opinion rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition, The Board notes that VA treatment records dated prior to 2010 were not associated with the claims file until after the June 2016 Board remand, and as a result, were not available for review by the October 2010 VA examiner. Similarly, the Board finds that the October 2010 and August 2017 VA examiners based their medical opinions, at least in part, on the finding that, with the exception of the May 24, 2010 reading, there were no abnormal blood sugar readings in the Veteran's medical records. However, as noted above, the Veteran's VA treatment records show six instances in which his blood sugar readings were above 126 between April and June 2010, and the appellant noted 20 instances where the Veteran's blood sugar readings rose above the normal range, which she identified as ranging from 70 to 100, in her August 2019 statement. See October 2010 Medical Treatment Record Government Facility; August 2017 C&P examination; August 2019 VA Form 21-4138 Statement in Support of Claim. Thus, the Board finds that the October 2010 and August 2017 medical opinions are based, at least in part, on an incomplete factual premise, and as such, are currently inadequate to adjudicate the issue on appeal. See Reonal v. Brown, 5 Vet. 458, 461 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). The Board also notes that, although E.R. indicated that the Veteran had an HgbA1C of 6.0 in August 2009 and that he had frequent blood glucose levels drawn that were outside the normal range, she did not proffer a diagnosis or explain the significance, if any, of either of her findings. See August 2019 Email Correspondence. Similarly, Dr. Baber noted that the Veteran had been diagnosed with diabetes, but failed to note any subjective or objective evidence of diabetes mellitus, beyond referencing the Veteran's amended death certificate, to substantiate his diagnosis. See March 2021 Medical Treatment Record Non-Government Facility. Thus, the Board finds that E.R.'s August 2019 medical opinion and the January 2021 private medical opinion from Dr. Baber lack adequate rationale for the opinions rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, as the claims file contains conflicting medical opinions regarding the Veteran's diabetes mellitus diagnosis, the Board finds that a remand is necessary to obtain an addendum opinion to determine the nature and etiology of the Veteran's claimed diabetes mellitus and to reconcile and/or address the conflicting medical evidence of record. In addition, the Board notes that the appellant raised a theory of entitlement to service connection on a secondary basis in her August 2019 statement. See October 2010 Medical Treatment Record Government Facility; August 2019 VA Form 21-4138 Statement in Support of Claim. However, no medical opinion addressing that theory has been requested. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, as the claims file contains conflicting medical opinions regarding the Veteran's diabetes mellitus diagnosis, the Board finds that a remand is necessary to obtain an addendum opinion to determine the nature and etiology of the Veteran's claimed diabetes mellitus and to reconcile and/or address the conflicting medical evidence of record. 3. Entitlement to service connection for cause of the Veteran's death is remanded. The Veteran died in July 2010, and an August 2010 affidavit of medical amendment to Florida certificate of death lists the immediate causes of death as cardiorespiratory arrest, failure to thrive, diabetes mellitus, and pancreatic cancer. See December 2010 Death Certificate. Accordingly, it follows that the claim for DIC benefits on the basis of entitlement to service connection for the cause of the Veteran's death is inextricably intertwined with the remaining claims on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, as the Veteran's claims for entitlement to service connection for pancreatic cancer and diabetes mellitus are being remanded, consideration of the Veteran's claim of entitlement to DIC benefits on the basis of entitlement to service connection for the cause of the Veteran's death at this juncture, would be premature as the issue is inextricably intertwined with the remanded issues on appeal. Accordingly, the Board will defer adjudication. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain an addendum opinion by an appropriate examiner to determine the nature and etiology of the Veteran's diagnosed pancreatic cancer. The examiner should provide the following opinion: Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed pancreatic cancer is etiologically related to his period of service, to include as due to his presumed in-service herbicide agent exposure? Please explain why or why not. The examiner should specifically address Dr. Baber's January 2021 private medical opinion and the cited medical articles and studies. In addition, the examiner should explain the significance, if any, of the Veteran's herbicide agent exposure, to include exposure to benzene and dioxin, and of any other relevant risk factors to the Veteran's development of pancreatic cancer. The Veteran's claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 2. Obtain an addendum opinion by an appropriate examiner to determine the nature and etiology of the claimed diabetes mellitus. The examiner should provide the following opinions: (a.) The examiner should opine as to whether the Veteran had diabetes mellitus or any other identified endocrine disorders. The examiner should specifically consider the six instances between April and June 2010 in which the Veteran's blood sugar readings were above 126: Between April and June 2010, the Veteran's VA treatment records show blood sugar readings that exceeded 126 on six occasions. Specifically, the Veteran's blood sugar reading was 144 on April 20, 2010; 250 on May 24, 2010; and 136 on June 6, 2010. He also had blood sugar readings of 165, 140, and 147 from May 26-27, 2010. In addition, the examiner should consider the Veteran's amended death certificate, the August 2010 private medical opinion from Dr. Nuchovich, the October 2010 and August 2017 VA medical opinions, Nurse E.R.'s January 2019 email, the appellant's August 2019 statement, the January 2021 private medical opinion from Dr. Baber, and any other conflicting medical evidence of record, to include all other records identified in the body of this Remand. (b.) For any identified endocrine disorders other than diabetes mellitus, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the disorder is etiologically related to the Veteran's period of service, to include as due to his presumed in-service herbicide agent exposure. Please explain why or why not. (c.) For any identified endocrine disorders other than diabetes mellitus, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the disorder was (i) caused or (ii) aggravated by his diagnosed pancreatic cancer. Please explain why or why not. The examiner should observe that permanent aggravation is not required. If aggravation is found, the examiner should identify, to the extent possible, the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the Veteran's diagnosed pancreatic cancer. (Continued on the next page) The Veteran's claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. Thereafter, readjudicate the claims, to include adjudicating the claim for the cause of death. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.