Citation Nr: 22040167 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 11-23 085 DATE: July 13, 2022 REMANDED Entitlement to service connection for esophageal cancer, to include as due to Agent Orange exposure and/or asbestos exposure, is remanded. Entitlement to service connection for chronic bronchitis, to include as due to Agent Orange exposure and/or asbestos exposure, or as secondary to esophageal cancer, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), as secondary to residuals of the esophageal cancer treatment, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1967 to June 1969. The Veteran died in November 2020, and the appellant is his surviving spouse. In a May 2021 Memorandum, VA recognized the appellant as a valid substitute for this claim. Thus, the appellant now stands in place of the Veteran for purposes of adjudicating this claim to completion. See 38 U.S.C. § 5121A (a)(1). This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision issued by a Regional Office (RO) of the United States Department of Veteran Affairs (VA). The Veteran and his wife provided sworn testimony in support of his appeal in a July 2014 hearing before the undersigned Veterans Law Judge (VLJ). This appeal has been pending for over a decade and has been the subject of numerous Board decisions and two appeals to the United States Court of Appeals for Veterans Claims (CAVC). Specifically, in a February 2015 decision, the Board denied the Veteran's claims for esophageal cancer and bronchitis, both as due to exposure to Agent Orange and/or asbestos. The Veteran timely appealed the Board's decision to the CAVC and in a January 2017 memorandum decision, the CAVC remanded the Board's decision, finding that the Board's decision failed to provide an adequate statement of reasons and bases for the denial. Thereafter, a September 2019 Board decision again denied the claims, and, prior to his death, the Veteran timely appealed the decision to the CAVC. In a December 2021 memorandum decision, the CAVC clarified that Dr. Randolph provided a positive nexus opinion between herbicide exposure and the development of esophageal cancer; held that remand is warranted for the Board to reconsider the weight of Dr. Randolph's opinion in light of this clarification; and, considering the undisputed inadequacies in the negative VA nexus opinions as deemed by the parties, the Board must determine whether it is necessary to further develop the service-connection claims or whether Dr. Randolph's positive nexus opinion alone is sufficient to adjudicate the claims. On the outset, the Board again notates that the Board previously presumed herbicide exposure and the Board will not disrupt this favorable determination. However, the list of diseases associated with exposure to certain herbicide agents does not include esophageal cancer. As such, presumptive service connection is not warranted. See 38 C.F.R. § 3.309(e). In this regard, the Board notes the National Academy of Sciences (NAS) in Update 11 (2018) has continued to find inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and respiratory disorders, gastrointestinal and digestive disease, to include esophageal and stomach cancers. Notwithstanding the presumptive provisions, the CAVC has determined that the Dioxin and Radiation Exposure Compensation Standards Act does not preclude a claimant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Further, it is not in dispute that the Veteran was diagnosed with esophageal cancer in 2004 and had residual cancer treatment prior to his death. As noted above, it is also not in dispute that the Veteran was exposed to herbicides. The Board further notes that the Veteran's military occupational specialty (MOS) was a turret gunner. The Board in the 2015 decision also conceded he was exposed to asbestos while in service. However, upon further consideration of the evidence, in accordance with the most recent decision from the CAVC, the Board has determined it is necessary to further develop the claims as Dr. Randolph's positive nexus opinion alone is insufficient to adjudicate the claims. Specifically, while Dr. Randolph determined there was a nexus, his opinion is internally inconsistent, as he stated: "it is not clinically possible to determine if one particular risk factor was the sole cause of his esophageal cancer to the elimination of another as a causal factor, and assuming smoking and herbicide exposure both contributed to the eventual onset of esophageal cancer, it is not clinically possible to separate the effects of one causal agent from the other." If it is not possible to separate the causal effects of one agent from another, it is unclear how he ultimately did so and provided a nexus opinion. Moreover, the underlying rationale for his opinion relies on studies that show Agent Orange and asbestos may show increased risk for esophageal cancer. As clearly discussed in prior decisions and not disputed by the CAVC, increased risk is not the same as causation. In addition, his opinion is based on his conclusion that since it is established Agent Orange causes a variety of cancers, we cannot distinguish one body part from another, so it causes esophageal cancer as well. This is not an adequate explanation and is the opposite of what the NAS has concluded and the reason why only certain cancers are presumptive. In fact, the NAS in Update 2018, after a review of all relevant studies on esophageal cancer, including the ones cited by Dr. Randolph, concluded: "No toxicologic studies provide evidence of the biologic plausibility of an association between the COIs and tumors of the esophagus." The Board notes that although the appellant submitted extensive opinions and articles that show that there may be an association or an increased risk, again, an increased risk does not equate to causation. The Board is not citing to the NAS report as the sole reason for not granting the claim. Rather, the NAS report's conclusion as to the general consensus weigh against the findings by Dr. Randolph. Since the CAVC deemed the prior independent medical opinions (IMO) inadequate, those opinions may not be considered. Therefore, the current state of the evidence is all opinions on the etiology of the Veteran's esophageal cancer are inadequate, including Dr. Randolph's, which necessitates remanding this claim. As for the claims for service connection for bronchitis and GERD being secondary to the esophageal cancer claim, the Board finds that these conditions are intertwined with the cancer claim that is the subject of the present appeal and remand. Accordingly, adjudication of these claims must await development and readjudication of this claim. Finally, as for the theory the Veteran's bronchitis was due to his conceded asbestos exposure, similar to the above, a remand is required for an IMO, as prior opinions were deemed inadequate by the CAVC and the opinions from Dr. Randolph on this point are also not adequate. Specifically, in November 2017, Dr. Randolph opined the Veteran's chronic bronchitis /COPD was as likely as not causally related to his exposure to asbestos during active duty. He relied on studies that indicated an increased risk of development between COPD and other respiratory conditions such as bronchitis with the handling of man-made mineral fibers. In November 2018, in a follow up statement, Dr. Randolph noted an abstract study of exposure to asbestos showed a higher prevalence for respiratory symptoms compared to nonsmokers and smokers. He also stated that a relationship is a significant finding and "highly unlikely due to a chance occurrence." However, the abstract indicated length of employment was a factor, and that development of chronic cough/ bronchitis is likely an unspecific effect of exposure rather than a specific effect. Further, while the appellant and CAVC noted that the prior IMO's did not consider the statements that the Veteran had a minimal smoking history, by the Veteran's own admission, his chronic cough and bronchitis did not begin until decades after service, with the first medical record showing bronchitis in 1998, which Dr. Randolph did not consider. The relationship between asbestos exposure and bronchitis diagnosed many years after separation from service is a complex question, and while there is a possibility that exposure to herbicides and/or asbestos may create an increased risk of bronchitis, the Board again notes that although the opinions and articles submitted by the Veteran showed that there may be an association or an increased risk, an increased risk does not equate to causation. Thus, the Board has deemed the medical problems to be of such complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The independent examiner must provide detailed rationale specific to the Veteran and explicitly consider the evidence specified in the remand directives below. The matters are REMANDED for the following action: 1. Obtain an independent medical opinion from an oncologist or similar expert as to the Veteran's esophageal cancer. The RO must follow its established procedures for requesting an advisory opinion from an appropriate expert at a medical school, university, or clinic. When requesting the opinion, the RO must forward all pertinent records, particularly including all prior medical opinions and all prior Board remands, to the examiner. The examiner must consider the Board's remand for a discussion of why the prior expert opinions were inadequate, then answer the following: Whether the Veteran's esophageal cancer was caused by his conceded environmental and/or herbicide exposures. Whether the Veteran's esophageal cancer was otherwise a result of his active duty service. The examiner is advised that he had conceded exposure to both herbicide agents and asbestos while on active duty. It is not sufficient to rely on the fact that esophageal cancer is not included on the list of diseases associated with exposure to herbicide agents, and it is insufficient to rely on or to conclude that the Veteran's condition being normal at separation from service to support the opinion that the current condition is not related to service; any opinions stating such will be deemed inadequate. The examiner is advised that the appellant is competent to report the Veteran's symptoms and history prior to his death. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the appellant's reports, the examiner must provide an explanation for such rejection. Specifically, the expert must consider: the statements regarding an error in the medical records that incorrectly stated that he had a ten-year history of cigarette smoking. His statement, corroborated by his wife, the appellant, clarified that he had a total smoking history of about two years during one of his high school years, and later, while in Vietnam, and explained why they could clearly recall that history That Dr. Krishnamurthi's May and June 2018 opinions are inadequate because she (1) did not address the Veteran's and his wife's lay statements that he had only a 2-year history of smoking and (2) found that the Veteran had two of four major risk factors for esophageal cancer, but Dr. Krishnamurthi did not specify which risk factors or explain why they were more likely to cause esophageal cancer than in-service herbicide exposure. Dr. Calero's August 2018 opinion is inadequate because she neither (1) considered the Veteran's and his wife's assertions that he experienced chronic bronchitis and coughing for many years before his esophageal cancer diagnosis and (2) did not adequately discussed the effects of the Veteran's ongoing environmental exposure to dioxins and/or asbestos while in Vietnam. Drs. Hockenberry and Krishnamurthi attributed the Veteran's esophageal cancer to other risk factors, but did not explain how they reached those conclusions, or how they concluded that his in-service exposures could be ruled out. As for Dr. Calero's opinion, it has been determined that it is also inadequate as she relied on incorrect/incomplete history as she did not consider the Veteran's and appellant's statements and provided inadequate explanation for her conclusions. Dr. Randolph's 2017 opinion. The treatise evidence and articles indicating military personnel with exposure to herbicides and/or asbestos have an increased risk of developing different types of cancer and showing that another type of pentachlorophenol found in China was associated with more than double the risk of esophageal cancer. Another article from an Asian Pacific Journal of Cancer Prevention that demonstrated significant increase in the incidence of esophageal cancer in the population exposed to pentachlorophenol. The Veteran asserted that his exposure 24/7 to asbestos while in Vietnam equated to four years of a civilian being exposed to asbestos in a factory like setting, elongating his exposure to more than the time period discussed in the studies cited by the VA examiners. If the expert finds that the Veteran had other risk factors, the expert is asked to provide a complete explanation as to why these risk factors are more likely the cause of the Veteran's esophageal cancer than in-service exposure to herbicide agents or asbestos. The expert must address Dr. Randolph's November 2017 contention that it is "not clinically possible to separate the effects of one causal agent from the other, that is, assign a percentage of responsibility to one risk factor vs. the other." All opinions must be accompanied by a rationale reflecting full consideration of the evidence of record. The physician should discuss this particular Veteran's medical history. Discussion and analysis of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. 2. Obtain an independent medical opinion from a pulmonary specialist or similar expert regarding the Veteran's chronic COPD/bronchitis. The RO must follow its established procedures for requesting an advisory opinion from an appropriate expert at a medical school, university, or clinic. When requesting the opinion, the RO must forward all pertinent records, particularly including all prior medical opinions and all prior Board remands, to the examiner. The examiner must consider the Board's remand for a discussion of why the prior expert opinions were inadequate then asked to answer the following: Whether the Veteran's COPD/bronchitis was caused by his conceded environmental and/or herbicide exposures. Whether the Veteran's COPD/bronchitis was otherwise a result of his active duty service. The examiner is advised that he had conceded exposure to both herbicide agents and asbestos while on active duty. It is not sufficient to rely on the fact that COPD /bronchitis is not included on the list of diseases associated with exposure to herbicide agents, and it is insufficient to rely on or to conclude that the Veteran's condition being normal at separation from service to support the opinion that the current condition is not related to service; any opinions stating such will be deemed inadequate. The examiner is advised that the appellant is competent to report the Veteran's symptoms and history prior to his death. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the appellant's reports, the examiner must provide an explanation for such rejection. Specifically, the examiner MUST consider: the statements regarding an error in the medical records that incorrectly stated that he had a ten-year history of cigarette smoking. His statement, corroborated by his wife, the appellant, clarified that he had a total smoking history of about two years during one of his high school years, and later, while in Vietnam, and explained why they could clearly recall that history. the 2014 hearing, wherein the Veteran and appellant testified that he struggled with bronchitis "for years, even before [he] was diagnosed with cancer." Moreover, as cited by appellant, the evidence of record indicates that the Veteran's cough had progressed to severe or hacking by 1998. That Dr. Krishnamurthi's May and June 2018 opinions are inadequate because she (1) did not address the Veteran's and his wife's lay statements that he had only a 2-year history of smoking and (2) found that the Veteran had two of four major risk factors for esophageal cancer, but Dr. Krishnamurthi did not specify which risk factors or explain why they were more likely to cause esophageal cancer than in-service herbicide exposure. That Dr. Calero's August 2018 opinion is inadequate because she neither (1) considered the Veteran's and his wife's assertions that he experienced chronic bronchitis and coughing for many years before his esophageal cancer diagnosis and (2) did not adequately discussed the effects of the Veteran's ongoing environmental exposure to dioxins and/or asbestos while in Vietnam. The medical opinions from Dr. Randolph and studies cited in support of his conclusion that a statistically significant causal relationship exists between asbestos exposure and the development of chronic bronchitis/chronic COPD. And address the March 2010 private opinion stating that Agent Orange exposure has a great cause/effect relationship in the development of chronic bronchitis/COPD. All opinions must be accompanied by a rationale reflecting full consideration of the evidence of record. The physician should discuss this particular Veteran's medical history. Discussion and analysis of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. 3. After the above development has been completed, readjudicate the claims of entitlement to service connection for esophageal cancer, chronic COPD/bronchitis, and GERD. If the claims remain denied, provide the appellant and her attorney with a supplemental statement of the case, and return the case to the Board. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.