Citation Nr: 22011123 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 16-19 154 DATE: February 25, 2022 ORDER 214 Entitlement to service connection for the cause of the Veteran's death is granted. FINDING OF FACT The Veteran died in February 2013 and the cause of death were Stage IV oropharyngeal bilateral tonsillar cancer and lymph nodes cancer, which are etiologically related to his active service, including exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United Stated Army from September 1966 to September 1968. The Veteran died in February 2013. The Veteran's spouse is the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a Board hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing is associated with the record. In a June 2021 decision, the Board reopened the claim of service connection for cause of death and remanded the matter for additional development, including obtaining a VA medical opinion. The RO completed the additional development and issued an October 2021 supplemental statement of the case denying entitlement to service connection for the cause of the Veteran's death; and retuned the matter to the Board for appellate review. Entitlement to service connection for the cause of the Veteran's death. At the March 2021 Board hearing, the appellant stated that the Veteran's cause of death was tonsillar cancer, which is due to exposure to herbicide agents during his service in Vietnam. The appellant argued that the VA recognized cancer of airway passages could be caused by exposure to herbicide agents and the tonsils would have been exposed. Any inhaled substance would have to pass over tonsils to reach the airway passages. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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 one which contributed substantially or materially to cause death or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). 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; 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. See 38 C.F.R. § 3.312(c)(1). Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. Relevant to this decision, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that 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 period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). Section 3.307(a)(6) also provides that 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 C.F.R. § 3.307(a)(6)(iii). The Veteran's death certificate indicates that his principal cause of death were tonsillar cancer and metastatic cancer to lymph nodes. The contributory condition linked with his cause of death was hypertension. The Board notes that tonsillar cancer, cancer metastatic to lymph nodes, and hypertension are not the conditions or diseases that are presumptively associated with exposure to herbicide agens under the VA regulations. See 38 C.F.R. § 3.309(e). However, VA must still consider whether the Veteran's disability is causally linked to service on a direct basis, to include exposure to herbicide agent. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Any reasonable doubt regarding the claim is resolved in favor of the Veteran. See 38 U.S.C. § 5107. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt should be resolved in favor of the claimant. See 38 C.F.R. § 3.102. As noted above, the Veteran's death certificate clearly indicates that the principal cause of death were tonsillar cancer and cancer metastatic to lymph nodes, and contributory cause was hypertension. As far as exposure to herbicide agents during his service is concerned, the Veteran's personnel records reflect that he served in Vietnam from September 1967 to September 1968. Therefore, he is presumed to be exposed to herbicide agents during his service in Vietnam. Thus, the question for the Board is whether the conditions that caused the Veteran's death are at least as likely as not related to an in-service injury, event, or disease, including the in-service exposure to herbicide agents. To resolve this issue, the Board remanded the matter in June 2021 to obtain a VA medical opinion. Consequently, a VA medical opinion was obtained in September 2021, in which the examiner opined that it is as likely as not that the Veteran's stage IV oropharyngeal cancer of bilateral tonsillar cancer diagnosed in 2010 and causative to his death in February 2013 was significantly due to his herbicide exposure while serving as a medic in Vietnam for nearly one year. As a supporting rationale, the examiner stated that recently further evidence has accumulated to suggest environmental factors, specifically herbicides are linked with increased risk of oropharyngeal (tonsillar pillar) carcinomas. Of 8,877,971 Vietnam era veterans, 22% self-reported exposure to Agent Orange, and 54,717 had a diagnosis of head and neck cancer. The examiner further stated that results reported in this study indicated that Agent Orange exposure significantly predicted upper aerodigestive tract carcinoma. This report issued by US Medicine in February 2020 quoting the "Oral Oncology" 2020 journal article described how self-reported Agent Orange exposure was linked with increased risks of oropharyngeal, nasopharyngeal, laryngeal, and thyroid cancers and predicted improved survival in upper aerodigestive tract cancer patients. Nevertheless, authors pointed out that the direct link between Agent Orange and head and neck cancers is largely unknown. In addition, the examiner stated that during his service, the Veteran also experienced multiple respiratory infections that were noted in his service treatment records in December 1966, January 1967, February 1967, and March 1967, indicating more likely than not various respiratory inhaled pathogens and/or toxic substances occurred, traveling down his nasal and oropharynx passing his tonsillar pillars. Finally, the examiner concluded that it is as likely as not that this Veteran's tonsillar cancer with metastatic cancer to lymph nodes is/are related to service, to include as due to herbicide exposure, with multiple respiratory infections noted in his service treatment records in December 1966, January 1967, February 1967, and March 1967. In the October 2021 addendum opinion, the same examiner also opined that it is as likely as not that the Veteran's lymph nodes cancer is significantly related to and/or caused by in a significant manner by his military service, including service in Vietnam combat conditions. His lymph nodes cancer condition is within his medical diagnosis of "Stage IV oropharyngeal cancer of Bilateral Tonsillar Cancer diagnosed in 2010" since stage IV is an advanced form of oropharyngeal cancer to include lymph nodes invasion, as is the case with this Veteran's advanced stage of oropharyngeal carcinoma. Then the examiner referred and included information from medical literature reflecting that lymph nodes involvement is part of the stage IV oropharyngeal cancer. In addition, the examiner concluded that the Veteran's service-connected diabetes also contributed to his death as diabetes causes multi-system impairments. The Board finds the September 2021 and October 2021 VA medical opinions competent and probative, in which the examiner clearly concluded that the Veteran's stage IV oropharyngeal cancer of bilateral tonsillar cancer and lymph nodes cancer contributed to the Veteran's death and were related to his active service, including exposure to herbicide agents. The examiner provided detailed and adequate supporting rationale. Also, the Board did not find a contrary opinion in the evidence of record. The Board has noted that there is a medical article of record which indicates an alternative risk factor for development of tonsil cancer involving HPV infection. Nevertheless, the VA examiner still offered a positive opinion ever after this was brought to the examiner's attention. Hence, the Board finds that the evidence of record persuasively weighs in favor of the claim. Therefore, entitlement to service connection for the cause of the Veteran's death is granted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.