Citation Nr: 22017407 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 15-30 564 DATE: March 25, 2022 ORDER Entitlement to service connection for pancreatic cancer, to include as due to herbicide agent exposure and asbestos exposure, is granted. Entitlement to service connection for lung cancer is granted. Entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. The VA has conceded that the Veteran was exposed to herbicide agents and asbestos during active military service. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran's pancreatic cancer was related to his exposure to herbicide agents and asbestos during service. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran's lung cancer was a metastasis of his pancreatic cancer. 4. The Veteran died March 31, 2014 due to pancreatic cancer. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing entitlement to service connection for pancreatic cancer, as due to herbicide exposure, and asbestos have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing entitlement to service connection for lung cancer, as due to pancreatic cancer, have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection of the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Navy from September 1968 to October 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2014, the Veteran filed a claim for pancreatic cancer and lung cancer due to exposure to agent orange in Vietnam and asbestos. Then in March 2014, the Veteran passed away due to pancreatic cancer. See Death Certificate received April 2014. Shortly after the Veteran's death, the Veteran's spouse filed a VA 21-534EZ Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits. The Veteran's spouse is the Appellant above. The spouse has been properly substituted as the claimant in the Veteran's original claims for service connection. See BVA Decision received August 2018, and April 2020. In April 2020, the Board issued a decision which denied entitlement to service connection for pancreatic cancer, entitlement to lung cancer, and entitlement to service connection for the cause of the Veteran's death. The Appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Appellant and the Secretary of the Veterans Affairs (collectively, as parties) filed a Joint Motion for Remand (JMR). The parties requested that the Court vacate the Board's April 2020 decision and remand the matter for further consideration and instructions consistent with the JMR. The JMR stipulated that the Board failed to provide an adequate statement of reasons or bases by finding that the Veteran's caloric intake and alcohol use were risk factors in developing pancreatic cancer when they did not cite to any medical evidence. The Board also failed to provide an adequate statement of reasons or bases as to why the private medical opinion of a certified internal medicine and oncology specialist were given the least probative weight. In June 2021, the Board remanded the claim for development consistent with the JMR. After a Supplemental Statement of the Case (SSOC), the claims are back before the Board for adjudication. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Board has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. See 38 U.S.C. § 5107(b). If there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter than the benefit-of-the-doubt rule applies, but the benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *11 (Fed. Cir. Dec. 17, 2021). 1. Entitlement to service connection for pancreatic cancer is granted. The Veteran contended before his passing that he was entitled to service connection for pancreatic cancer, including as due to herbicide exposure in Vietnam, as well as exposure to asbestos through his duties in the Navy. While pancreatic cancer is not a recognized chronic disease as indicated in 38 C.F.R. § 3.309(e), the Veteran still contended that his cancer should be considered a disease caused by herbicide agent exposure. The main issue before the Board is whether there is any link between the Veteran's pancreatic cancer and his in-service exposures to asbestos and herbicide agents. The Veteran had pancreatic cancer prior to his death. Therefore, he had a current disability before his passing. The Veteran's exposure to asbestos and herbicide agents like agent orange during active duty service has been conceded. See SOC received July 2015. Therefore, he had an in-service event. Resolving reasonable doubt in favor of the Veteran, the Board finds that a link between pancreatic cancer and his in-service exposures to asbestos and herbicide agents like agent orange is supported. A private doctor provided two letters with his opinions. The private doctor stated that he was board certified in Oncology and that he had served as an attending oncologist for patients in VA hospitals. He opined that it was as likely as not that Agent Orange contributed to the development of pancreatic cancer in the Veteran. Furthermore, he opined that it was as likely as not that asbestos exposure likely also contributed to the Veteran's development of pancreatic cancer. See Third Party Correspondence received March 2020, Correspondence received June 2016. The private oncologist provided a detailed rationale for his opinions. He considered various literature and research articles. He cited the articles as well as provided a detailed discussion of the evidence. The Board gives the opinions of the private oncologist significant weight. The private oncologist provided a detailed rationale. He also reviewed the records, other opinions, and had relevant expertise. The Board also noted the opinion by the VA examiner in August 2021. The VA examiner stated that it was less likely as not that the in-service herbicide exposures were greater than 50 percent contributory to the development of pancreatic cancer. The examiner's opinion was weakened by his rationale which stated that there were not studies definitely linking herbicide exposure and pancreatic cancer. However, he also stated that there are not studies definitely ruling out this possibility either and the examiner stated that there was a certain amount of mere speculation involved in such opinions. See C&P Examination received August 2021. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. The evidence before the Board here indicates that the Veteran's claim must be resolved in favor of the Veteran, as the benefit of the doubt doctrine is applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran's claim of service connection for pancreatic cancer is granted. 2. Entitlement to service connection for lung cancer is granted. The Board finds that the Veteran's lung cancer was either a continuation of his pancreatic cancer or caused by his pancreatic cancer. In October 2018, the VA examiner stated that the Veteran's lung cancer was metastatic pancreatic cancer. The examiner stated that this was confirmed by cytology of pleural fluid. See C&P Exam received October 2018. The October 2018 VA examiner's opinion was also supported by the opinion of the April 2021 private oncologist. In particular, he stated that the Veteran did not have primary lung cancer, but that his lung lesions were derived from his pancreatic cancer. See Medical Treatment Record-Government Facility received May 2021. Therefore, the Veteran's claim of service connection for lung cancer prior to his passing is warranted. 3. Entitlement to service connection for cause of death is granted. To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered 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). The Appellant contends that the Veteran's pancreatic cancer caused his death. The Veteran's death certificate listed pancreatic cancer as the primary cause of his death. Therefore, service connection for the cause of the Veteran's death is granted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.