Citation Nr: 22040114 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-07 122 DATE: July 13, 2022 ORDER Entitlement to service connection for cause of death is denied. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in February 2017 and the immediate cause of death was stage 4 oropharyngeal cancer, with no contributing causes of death. 2. At the time of his death, the Veteran was service-connected for posttraumatic stress disorder (PTSD), bilateral peripheral neuropathy of the lower extremities, bilateral peripheral neuropathy of the upper extremities, bilateral peripheral neuropathy of the femoral nerve, diabetes mellitus, type II, and tinnitus. 3. The Veteran was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of 10 or more years prior to his death, the interval between his release from active duty and his death was more than five years, and he was not a prisoner of war. CONCLUSIONS OF LAW 1. The cause of the Veteran's death is not attributable to a disability incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. 2. The criteria for entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 ; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps from October 1961 to March 1967. The Veteran died in February 2017. The appellant is his spouse. The Veteran testified at a December 2021 virtual hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. The Board notes that during the December 2021 Board hearing, the Appellant raised a claim under the provisions of 38 U.S.C. § 1151 relating to VA's treatment of the Veterans oropharyngeal cancer. However, a review of the record reflects that the RO has not adjudicated the Veteran's section 1151 claim in a rating decision. Importantly, compensation benefits pursuant to 38 U.S.C. § 1151 are a separate cause of action from standard service connection and must be initially adjudicated as such. As noted, the record does not reflect that the Agency of Original Jurisdiction (AOJ) initially adjudicated the Veteran's 1151 claim. As a result, the Board does not have jurisdiction over the 1151 claim; therefore, it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Service Connection In order to establish service connection for the cause of a veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). 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. 38 C.F.R. § 3.312 (c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312 (c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312 (c)(4). In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service-connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service or, in the alternative, is secondary to another service-connected disability. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303, 3.304. 1. Entitlement to service connection for cause of death The appellant is seeking service connection for the cause of the Veteran's death. In this case, the Veteran died in February 2017. The primary cause of death listed on his death certificate was oropharyngeal cancer. The underlying causes of death listed were COPD, recurrent aspiration pneumonia, hepatitis C with cirrhosis. At the time of his death, the Veteran was service connected for posttraumatic stress disorder, bilateral peripheral neuropathy of the lower extremities, bilateral peripheral neuropathy of the upper extremities, bilateral peripheral neuropathy of the femoral nerve, diabetes mellitus, type II, and tinnitus. There is no evidence that the Veteran's service connected disabilities had any impact on his death. The Appellant asserts that the Veteran's exposure to Agent Orange and his service connected conditions, including his diabetes mellitus, type II, contributed to his cause of death. However, the medical evidence of record does not suggest a connection between the Veteran's Agent Orange exposure, service connected conditions and his cause of death. Moreover, there is insufficient evidence for the Board to conclude that the immediate cause of the Veteran's death, should have been service-connected. As an initial matter, the Board notes that the Veteran served in the Republic of Vietnam, and is presumed to have been exposed to toxic herbicides. For such exposed veterans, VA law allows service connection for a number of disabilities on a presumptive basis, including AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, soft-tissue sarcomas and, as potentially relevant here, respiratory cancers. 38 C.F.R. § 3.309(e). In this regard, a medical opinion was provided in January 2018, addressing whether the Veteran's oropharyngeal squamous cell carcinoma is deemed a respiratory cancer under 38 CFR 3.309(e) (cancer of the lung, bronchus, larynx, or trachea). However, the examiner opined that it was not at least as likely as not that the Veterans oropharyngeal cancer was a respiratory cancer. In support of this opinion, the examiner stated that the medical records indicate that the Veteran had cancer originating from the right palatine tonsil which reside in the oropharynx and is separate and distinct from lung, bronchus, larynx, and trachea. Moreover, in the Board's view, the Veteran's oropharyngeal cancer is not a "respiratory cancer" within the bounds of 38 C.F.R. § 3.309(e). Unlike many of the disorders listed in this section, the term "respiratory cancer" is specifically defined as "cancer of the lung, bronchus, larynx, or trachea." Given this set parameters of this term, it would be inappropriate to extend this definition to cancers of the pharynx. Therefore, service connection on a presumptive basis is not warranted. Next, the Board has conducted an exhaustive search of the Veteran's service treatment records, but finds no evidence therein that the Veteran's oropharyngeal cancer was incurred in service. As such, there is no evidence of an in-service service incurrence or aggravation of a disease or injury to which his oropharyngeal cancer may be linked. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) The post-service evidence does not reflect symptoms related to oropharyngeal cancer for many years after the Veteran left active duty service. Specifically, the first indication of oropharyngeal cancer was during an October 2016 Oncology note when the treating physician noted metastatic squamous cell carcinoma of head/neck and a November 2016 noted a diagnosis of Stage IVA oropharyngeal squamous cell carcinoma. Indeed, the Appellant has not asserted that the Veteran had experienced symptoms of oropharyngeal cancer since active service. As such, continuity of symptomatology is not shown based on the clinical evidence. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and the cause of the Veteran's death. In in this case, however, there is no medical evidence or testimony in the record shows a medical nexus between the Veteran's cause of death and his active service. In this case, there is no competent medical evidence linking the Veteran's oropharyngeal cancer to active duty service, nor has any treating medical professional opined that such a relationship exists. In regard to the Veterans Agent Orange exposure, the examiner opined that it was also less likely than not that his oropharyngeal cancer was less likely than not directly related to his conceded Agent Orange exposure. In support of this opinion, the examiner stated that medical research has not concluded that Agent Orange exposure is a causative risk factor for tonsil cancer and established causative risk factors for head and neck cancer include tobacco use, alcohol consumption, and human papilloma virus. In this case, the Veteran smoked for 57 years and his tumor pathology was positive for p16 which is a marker of human papilloma virus. The January 2018 examiner also opined that it was less likely than not that the Veterans service connected conditions including PTSD, peripheral neuropathy of the lower extremities, tinnitus, type 2 diabetes mellitus with erectile dysfunction, and peripheral neuropathy of the right upper extremity contributed to his death, . To support his opinion, the examiner stated that the Veterans diabetes mellitus was under excellent control prior to his death and there is no indication in the body of evidence that the Veterans service connected conditions contributed to his death. The examiner also provided negative opinions on whether the Veterans treatment for his service connected conditions contributed to his death or caused debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. In support of those opinions, the examiner stated that there is no indication in body of evidence that treatments for the Veteran's service-connected conditions (aripiprazole, gabapentin, insulin) contributed to his death or caused debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Finally, the examiner opined that it was less likely than not that the Veterans STRs reveal any other treatment/diagnosis which would have at least as likely as not contributed to his death. In support of this opinion, the examiner stated that a review of the Veteran's STRs fail to reveal a diagnosis/treatment which would have at least as likely as not contributed to the Veteran's death. While the Appellant believes that the Veteran's exposure to Agent Orange and his service connected conditions are related to his cause of death, she is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377, n. 4. Additionally, the Board notes the Veterans representative argument that he doubts the opinion of the January 2018 VA examiner because an autopsy was not performed and the examiners opinion was thorough without records. However, the Board finds that the VA examination was adequate, as it took into consideration the Veteran's STRs, substantial VA treatment records, and lay statements in his rationale that the Veterans exposure to Agent Orange and his service connected conditions, including his diabetes mellitus, type II, were less likely than not related to the Veterans cause of death. Moreover, as an autopsy is impossible at this point, it is unclear what could be done to correct any potential deficiencies in the provided opinion. Therefore, the examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In arriving at this conclusion, the Board has also considered the statements made by the Appellant regarding the cause of the Veteran's death. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Appellant is not competent to provide testimony regarding the cause of the Veteran's death. See Jandreau, 492 F.3d at 1377, n.4. Because oropharyngeal cancer is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's oropharyngeal cancer, by themselves, are insufficient to establish service connection. In sum, because there is no evidence of an in-service incident, injury or illness to which the Veteran's oropharyngeal cancer may be etiologically linked, and because there is no other medical evidence showing that the Veteran's oropharyngeal cancer was incurred in or the result of active service, entitlement to service connection for the Veteran's cause of death must be denied. 2. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 The appellant asserts that she is entitled to DIC benefits under the provisions of 38 U.S.C. § 1318 because the Veteran was in receipt of compensation at the 100 percent rate due to service-connected disabilities at the time of his death. Under 38 U.S.C. § 1318 (b), DIC benefits will be paid to the veteran's surviving spouse if the veteran's death was not the result of willful misconduct and, at the time of death, (i) the Veteran had been receiving or was entitled to receive compensation for a service-connected disability that was rated by VA as 100 percent disabling for at least 10 years immediately preceding death, (ii) he had been rated as 100 percent disabled since release from active duty and for at least five years immediately preceding death, or (iii) he had been rated as 100 percent disabled for a continuous period of not less than one year immediately preceding death if he was a former prisoner of war who died after September 30, 1999. 38 U.S.C. § 1318 (b). The phrase "entitled to receive" means that, at the time of death, the veteran had a service-connected disability rated by VA as totally disabling, but was not actually receiving compensation because: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation to offset an indebtedness of the veteran; (3) the veteran had not received total disability compensation solely because of clear and unmistakable error in a VA decision; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C. § 1174 (h)(2); (6) VA was withholding payments because the veteran's whereabouts was unknown, but he was otherwise entitled to receive continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22(b). The Board concludes that the appellant is not entitled to DIC benefits under 38 U.S.C. 1318. Here, the evidence shows that the Veteran was never a prisoner of war, the interval between his separation from active duty and his death was more than five years, and he was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of 10 or more years prior to his death. Additionally, there is no evidence that the Veteran was entitled to receive compensation for service-connected disabilities rated totally disabling but was not in receipt due to one of the reasons listed in 38 C.F.R. § 3.22 (b). Finally, it has not been claimed that the Veteran's lack of a total disability compensation for 10 years before his death was due solely to clear and unmistakable error (CUE) in a VA decision concerning an issue of service connection, disability evaluation, or effective date. By virtue of the foregoing, the Board finds that the law precludes the grant of DIC benefits under 38 U.S.C. § 1318. Therefore, the claim is denied. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica