Citation Nr: 22040171 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 17-47 675 DATE: July 13, 2022 ORDER Entitlement to service connection for the cause of the Veteran's death (esophageal cancer) is denied. FINDINGS OF FACT 1. The cause of the Veteran's death was esophageal cancer. 2. The Veteran served in Vietnam as a photographer from December 1970 to November 1971. 3. The Veteran is presumed to have been exposed to certain herbicide agents during his in-country Vietnam service. 4. The evidence persuasively shows the cause of the Veteran's death (esophageal cancer) was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1970 to June 1992. He died on February [REDACTED], 2016, and the Appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from an October 2016 rating decision issued by the Agency of Original Jurisdiction (AOJ). In October 2019, the Board remanded the appeal for a VA disability examination and medical opinion, which were obtained in January and December 2021, and March 2022. The Board finds that there has been substantial compliance with its directives and may now proceed with a decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for the cause of the Veteran's death. The Appellant contends the Veteran's esophageal cancer was due to herbicide agent exposure. The question for the Board is whether Veteran's esophageal cancer was caused by his service, to include herbicide agent exposure. Regrettably, a grant of service-connected benefits was not supported by the record. For the reasons discussed below, the evidence did not persuasively show the Veteran's cancer was caused by his service. VA death 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, 3.312. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability which was incurred in or aggravated by active duty service either caused or contributed substantially or materially to death. In order to constitute the primary cause of death, the service-connected disability must be medically determined to have been 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 one not inherently related to the principal cause, but that it contributed substantially or materially; combined to cause death; or assisted in the production of death. Significantly, 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). Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (2007). Service connection may also be established for certain chronic diseases by satisfying the test for disability compensation for chronic diseases set forth in 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331, 1334 (2013). One method is to show the Veteran has (1) a current chronic disease listed under 3.309(a) and (2) that disease must have been "shown in service." Id. at 1335. As to (1), esophageal cancer is considered a malignant tumor, which is listed in 38 C.F.R. § 3.309(a) as a chronic disability. As to (2), 38 C.F.R. § 3.303(b) equates "shown in service" with a reliable diagnosis of the chronic disease while in service. Walker, 708 F.3d at 1335. Another method is to show continuity of symptomatology. Continuity of symptomatology may be demonstrated if a claimant can show (1) a condition was "noted" during service; (2) post-service evidence of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495 (1997). Section 3.303(b) does not require medical evidence of an etiological link between service and a current disability. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may also be granted on a presumptive basis for Veteran's who service in the Republic of Vietnam. Under 38 C.F.R. § 3.307 (a)(6), service connection may be granted on a presumptive basis for certain disorders associated with exposure to herbicide agents if the Veteran served in the Republic of Vietnam between January 1962 and May 1975. If the Veteran served in the Republic of Vietnam during that period he or she will be presumed to have been exposed to an herbicide agent during such service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In order to prevail on a claim for benefits, the Veteran need only demonstrate the evidence is approximately balanced, which means nearly equal evidence. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *10 (Fed. Cir. Dec. 17, 2021)(en banc). Beginning with the Veteran's service, his service treatment records (STRs) show numerous complaints of medical problems, like rash, reflux, joint problemsbut no documented suspicion of cancer is found in those records. See June 1970 Report of Medical Examination; see also January 2021 VA Medical Opinion (indicating none of the medical symptoms in the Veteran's STRs were signs of his later diagnosed esophageal cancer). He served in Vietnam from December 1970 to November 1971 as a photographer; the AOJ has already found the Veteran was exposed to herbicide agents his Vietnam service. See November 2010 Rating Decision (finding Veteran was presumptively exposed to herbicide agents during in-country Vietnam service); June 2010 VAMC Record (noting Veteran reported he was a photographer during his Vietnam service). The record does not provide much detail about the Veteran's activities in Vietnam, but he has told post-service medical providers he smoked cigarettes during his Vietnam service. See November 2010 VA Examination at 1 (reporting he smoked cigarettes for a year around Vietnam). By 1992, the Veteran had given over 20 years of service to the Army; he decided to retire and underwent a separation examination. During his March 1992 separation examination, he reported multiple medical complaints, none of which led to a note that cancer was suspected. See March 1992 Report of Medical Examination; March 1992 Report of Medical History (reported multiple signs, symptoms, of medical conditions, to include problems with joints, headaches, back pain, depression, and indigestion); January 2022 VA Medical Opinion (finding report of indigestion was not likely a sign of stomach/esophageal cancer). The Veteran smoked tobacco products from service up to 1991, amounting to at least 20 years of tobacco use. Initially, he smoked cigarettes but transitioned to cigars following his Vietnam service. The record shows he provided different accounts of the extent of his tobacco use. When looking at his reports as a whole, he smoked at least two to three cigars a week for nearly 20 years. See November 2010 VA Examination at 1 (reporting he smoked cigarettes for a year and then two to three cigars a week until 1991); July 2003 Private Medical Record (PMR) (reporting he smoked cigars until 1991); June 2009 PMR (reporting he smoked cigars until 1991 but did not inhale); November 2015 VAMC Record (reporting he smoked three to five cigars a day for 20 years and quit in 1990). His consumption of alcohol lasted much longer, with a report of consuming whiskey every day as late as November 2015. Id. The Appellant asserts the Veteran was no longer a smoker when he died, which is supported by the record. See September 2017 VA Form 9; Amended Death Certificate (changing tobacco use from probably contributed to non-user). In March 2001, the Veteran underwent an examination of his stomach, esophagus, and portion of the small intestine (esophagogastroduodenoscopy) for the purpose of evaluating an ulcerated esophagus and hiatal hernia. The test led to a diagnosis of gastroesophageal junction (GEJ) cancer (esophageal cancer). See March 2001 Endoscopy Procedure Report; April 2001 Surgical Pathology Report. Multiple VA examiners who evaluated the claims file note the Veteran had Barrett syndrome at the time of the March 2001 esophagogastroduodenoscopy. See December 2021 VA Medical Opinion (concluding Veteran's esophageal cancer is second to stomach cancer notwithstanding presence of Barrett Syndrome); March 2022 VA Medical Opinion (noting Veteran had Barrett Syndrome in March 2001). Barrett syndrome is an ulcerated lower esophagus that can develop into esophageal cancer. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1792 (33rd ed. 2020). Three VA examiners reviewed the claims file in January and December 2021, and March 2022, to determine if the Veteran's cancer was due to service, to include herbicide agent exposure. The January 2021 examiner indicated medical symptoms observed as far back as his service were not signs of the Veteran's cancer because it was not a slowly developing cancer; rather, his esophageal cancer was fast moving and discovered many years after service. See VA Medical Opinion. The December 2021 VA opinion added that the kind of cancerous cells found in the Veteran's esophagus were not the kind found at a cancer's primary site. Instead, the esophageal-cancer-cells were of the kind associated with cancerous spread. Based on the location of the esophageal-cancer-cells, the examiner opined the Veteran's cancer originated in the stomach. See VA Medical Opinion at 4. His opinion was supported by the medical provider who prepared the March 2019 amended death certificate; it notes the cause of death was esophageal cancer, second to stomach cancer. It was amended to reflect that conclusion. Also, that the Veteran was not a smoker around time of his death. See March 2019 Death Certificate. Even though the death certificate initially received by VA indicated the Veteran may have been a smoker at the time of death, the March 2022 examiner concluded the Veteran had a significant tobacco use history as he smoked for 20 years. His significant tobacco and alcohol use were found to be the likely cause of esophageal/stomach cancer rather than herbicide agent exposure. All three VA examiners expressed that medical literature does not currently support a causal connection between herbicide agent exposure and esophageal cancer. See January 2021 VA Medical Opinion (finding neither Barrett syndrome nor esophageal cancer are linked to herbicide agent exposure). December 2021 VA Medical Opinion (noting herbicide agent exposure has not been recognized as a cause of the Veteran's form of cancer); March 2022 VA Medical Opinion (noting neither stomach nor esophageal cancer is linked to herbicide agent exposure). A November 2015 VAMC record notes the Veteran was actively dying. See Record by G.A., NP. His cancer was treated with surgery, but not chemotherapy. Id. By February [REDACTED], 2016, he stopped eating. See February 2016 VAMC Record (noting Appellant requested hospice care). Five days later, on February [REDACTED], the Veteran passed away. His death certificate notes the cause of death was esophageal cancer, second to stomach cancer. See March 2019 Death Certificate. A. Entitlement to service connection for esophageal cancer based on herbicide agent exposure. After reviewing the record, the Board sees no reason to doubt the Veteran's esophageal cancer is secondary to stomach cancer. The amended (March 2019) death certificate provides that medical conclusion. Although the certificate does not inform the Board how stomach and esophageal cancers were found to be related, VA obtained a medical opinion that helped fill that gap. The December 2021 VA medical opinion explains the cancerous cells found in the Veteran's esophagus are not the kind found at the primary site; rather, they are identifiable as cancerous spread. Similarly, the January 2021 examiner expressed the type of cells found at the esophagus indicated stomach cancer. The Board recognizes the January and December 2021, and March 2022 VA medical opinions discuss another medical condition (Barrett syndrome), which they note can cause cancer, but it is apparent to the Board they did not find Barrett syndrome caused this Veteran's esophageal cancer. One (December 2021) opinion pointed out that the cells found in the esophagus are associated with stomach cancer spread. Another (January 2021) opinion indicated the Veteran did not present symptoms indicating Barrett syndrome caused the Veteran's cancer, like chronic heartburn. Both opinions provide reasoned explanations for their conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The March 2022 opinion did not say much about Barrett syndrome, but acknowledged the death certificate noted esophageal cancer was second to stomach cancer and did not dispute that finding. Given that examiner was asked to opine on its etiology, the Board finds the examiner would have mentioned if she thought Barret syndrome was the cause of the Veteran's cancer. Although the presence of Barrett syndrome was a complicating factor, the evidence is persuasively against finding it is linked to the Veteran's cause of death. If there is a question whether stomach canceraside from esophageal cancerwas due to herbicide agent exposure, the March 2022 VA Medical Opinion weighs against that conclusion. The VA examiner noted the Veteran's esophageal and stomach cancers are not linked to herbicide agent exposure. Considering the previous (January and December 2021) medical opinions agree that esophageal cancer is not related to herbicide agent exposure, there is ample medical evidence in the record to conclude esophageal/stomach cancer is not due to herbicide agent exposure from service in Vietnam. Lynch, 2021 U.S. App. LEXIS 37307, at *10. B. Entitlement to service connection on a direct basis. The Board searched the record for evidence showing the Veteran's esophageal/stomach cancer was due to his service generally; that is, on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The evidence is persuasively against finding it is directly linked to his service. While the AOJ found the Veteran was exposed to herbicide agents when it granted service-connected benefits for a different disability (ischemic heart disease), a search of the record did not show any other service-related events that may have caused his cancer, like exposure to some other hazardous substance such as radiation. The Board's assessment does not conflict with the Appellant's or Veteran's claims; neither of them alleged esophageal/stomach cancer was due to any service-related event other than herbicide agent exposure. The Board finds the Veteran's lack of reference to any other service-related to be of some, but not significant, persuasive value. The claims file shows he has given medical providers an account of substances he believed to be related to his cancer. When discussing cancer with a medical provider, he mentioned exposure to (unspecified) chemicals following service, while employed at a paper mill. See June 2009 PMR (reporting he smoked cigars until 1991 and was exposed to chemicals while working at a paper mill). Given his account was provided to help medical providers treat various medical conditions, including stomach cancer, it is likely he reported all the hazardous materials he knew he was exposed to. So, the Board expected references to exposure to other hazardous materials to be found. Even if the Veteran had been unaware of exposure to certain hazardous substances during service, signs of cancer were not shown in or noted during service. Nor within a year of leaving service. See January 2021 VA Medical Opinion (indicating none of the medical symptoms in the Veteran's STRs were signs of his later diagnosed esophageal cancer). The Board recognizes the Veteran is not qualified to identify specific cancer-related symptoms, but his in-service observations help VA examiners retrospectively assess whether his medical complaints indicate the presence or beginnings of cancer. The January 2021 VA Medical Opinion is helpful here as the examiner pointed out that in-service medical complaint is not likely related to the Veteran's later diagnosed esophageal/stomach cancer. Id. For example, the January 2021 examiner explained the Veteran's in-service complaint of indigestion was most likely not a sign of esophageal cancer because that would imply the Veteran had cancer that slowly progressedwhich the examiner opined did not to occur here. See VA Medical Opinion (explaining the Veteran had a fast moving cancer). If there are doubts about whether the Veteran's STRs provide a reliable account of the Veteran's medical problems during service, his demonstrated tendency to report medical problems weighs against that conclusion. Throughout his more than 20 years of service, he reported medical complaints of a wide range of observed symptoms, to include symptoms involving his esophagus and stomach, like difficulty swallowing, indigestion. Given that he did not appear to avoid voicing medical complaints during service, the Board finds the STRs provide a reliable account of his observed medical problems during service. See STRs dated June 1972 (complained of rash/sores on legs, arms that were found to be due to insect bites); October 1975 (complained of vomiting, diarrhea); June 1979 (complained of chest pain and disclosed he is a smoker); June 1985 (complaint of weakness, difficulty swallowing found to be due to viral infection); September 1987 (complaint of cyst on back); December 1988 (complained of hand laceration while cutting wood); April 1989 (complained of symptoms determined to be of bronchitis/sinusitis), March 1992 Report of Medical History (reported multiple signs, symptoms, of medical conditions, to include problems with joints, headaches, back pain, depression, and indigestion). If there are doubts about whether the Veteran may have failed to report early signs of cancerperhaps, because he was unaware he had cancer at that momentthee record weighs against that conclusion. It shows he filed his own service-connected claim for esophageal cancer in April 2010. His claim did not include the addition of previously unreported symptoms that were retrospectively believed to be signs of cancer. Given that he was afforded the opportunity to provide additional data that might support an award of VA compensation benefits, the Board expects he would have informed VA of any previously unreported symptoms believed to be related to his cancer. Even though his lay recollections do not amount to reliable nexus evidence, it is some evidence that suggests VA obtained a reliable account of the Veteran's observed medical problems during service or within a year of leaving service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). The January 2021 and March 2022 VA Medical Opinions provide reliable nexus evidence. The VA examiners concluded that the cancers at issue here were not due to the Veteran's service. The January 2021 opinion persuasively explained why the Veteran's in-service symptoms are not signs of the Veteran's cancer. According to the examiner, the Veteran would have had a slow moving cancer if his in-service symptoms, like indigestion, were linked to cancer. Based on her review of the record, the Veteran's cancer was fast-moving (aggressive); so, symptoms dating as far back as service were not likely to be attributable to cancer. The March 2022 VA Medical Opinion persuasively explained that other factors in this Veteran's medical history caused his cancer. The examiner explained this Veteran is male, had a significant history of tobacco (up to 1991), alcohol consumption, which are factors known to be related to the development of stomach cancer. He indicated those factors more likely caused the Veterans cancer because stomach cancer is not currently linked to herbicide agent exposure. Although the VA examiners who prepared the January and December 2021 opinions may have had a mistaken belief the Veteran smoked up to the time he died, the record shows he smoked tobacco products for at least 20 years; so, their accounts of the Veteran's medical history were not entirely inaccurate. Their misunderstanding of the Veteran's past medical history does not render their opinions wholly unreliable. Their assessment of the Veteran's in-service medical complaints (and link to herbicide agent exposure) remain persuasive as smoking up to the time of death did not appear to determine the outcome of their opinions. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (noting that, although a medical examination may be deemed inadequate in part, the parts that are adequate cannot be completely ignored, and they still hold probative value). In any event, the March 2022 Medical Opinion acknowledged the Veteran stopped smoking by the he died; so, it is persuasive medical nexus evidence that is separate and independent from the other opinions. While the Appellant believes the Veteran's esophageal/stomach cancer was caused by his service, the evidence persuasively weighs against that conclusion. Accordingly, the Veteran is not entitled to an award of service connection on a direct basis. 38 C.F.R. § 3.303. C. Entitlement to presumptive service connection for esophageal/stomach cancer based on chronicity or continuity of symptomatology. Given that the Board has concluded the Veteran's esophageal/stomach cancer was not shown in service or within a year of leaving service, the criteria for entitlement to presumptive service connection based on having a chronic disability are not met. Although neoplasm and malignant tumors (cancers) are listed chronic diseases under VA regulations, compensation benefits based on having a chronic disability require it was shown in or noted during service or within a year of leaving service. Or, manifested with continuous symptoms since service. 38 C.F.R. §§ 3.303, 3.309(a). Here, the January 2021 examiner explained why none of the Veteran's in-service symptoms are linked to his later-diagnosed esophageal/stomach cancer. He would have had a slowly developing cancer for that to be the case, which the examiner explained did not occur here. Also, the December 2021 opinion explained why Barrett syndrome is not a continuous symptom of cancer. Barret syndrome is a separate medical condition that did not play a role in the development of cancer; so, the Board concludes consideration of that condition as an early sign of cancer is not warranted. The opinions persuasively show esophageal cancer was not shown in service or within a year of leaving service. Given that the record does not show in-service symptoms of cancer, it follows that he cannot show continuous symptoms of cancer since service. So, the Veteran is not entitled to service connection based on chronicity or continuity of symptomatology. 38 C.F.R. § 3.303. In sum, the cancer that caused the Veteran's death has not been shown to be due to his service, to include herbicide agent exposure. Accordingly, the Appellant's cause of death claim must be denied. 38 U.S.C. § 1310. The Board regrets a more favorable decision could not be reached in the Appellant's case. Also, the Board extends its sincerest condolences to the Appellant for her loss, as well as its highest appreciation to the late Veteran for more than 20 years of honorable service in the Army. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.