Citation Nr: 22051186 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 17-59 820 DATE: September 8, 2022 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is dismissed as moot. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during service in Vietnam; he died of a gastrointestinal stromal tumor (GIST) in July 2015. 2. GIST is a soft-tissue sarcoma. 3. The grant of service connection for cause of death renders the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 moot, and thus, the appealed issue is dismissed. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. § 1310; 38 C.F.R. § 3.5, 3.312. 2. The claim of DIC benefits under 38 U.S.C. § 1318 is dismissed as moot. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to April 1968, which included service in the Republic of Vietnam. He passed away in July 2015. The appellant is the Veteran's surviving spouse. This matter is on appeal from an August 2016 rating decision. The appellant testified before the undersigned Veterans Law Judge in September 2021; a transcript is of record. 1. Entitlement to service connection for the cause of the Veteran's death is granted. Dependency and indemnity compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 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(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961, and ending on May 7, 1975, for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961, and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure include soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Soft-tissue sarcoma includes the following: Adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), rhabdomyosarcoma, ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma. 38 C.F.R. § 3.309(e). A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era, however, is not warranted for various disorders, to include gastrointestinal tract tumors. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630 (May 20, 2003); Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002); Diseases Not Associated with Exposure to Certain Herbicide Agents, 64 Fed. Reg. 59,232 (November 2, 1999). Factual Background Turning to the evidence of record, the Veteran's personnel records confirm that he served in the Republic of Vietnam. Service treatment records are silent for complaints, treatment, and or diagnoses of cancer/tumors of any kind. The Veteran was diagnosed with GIST in January 2014 and ultimately succumbed to the same disease in July 2015. He was not service-connected for any disabilities at the time of his death. Historically, a January 2014 biopsy report of the gastric fundus showed elements of spindle cell and epithelioid features, positive for CD-117, MIB-1, and keratin, and negative Desmin, SMA, and S-100. See January 2014 Private Pathology Report from Drs. J.B., K.S., and D.P. Due to the difficult nature of the case, it was sent to the Mayo Clinic for a second opinion where Mayo confirmed the diagnosis of GIST, mixed spindled and epithelioid type. An April 2015 private CT scan noted a diagnosis of a heterogenous soft tissue mass in the stomach consistent with progression of the disease. In an April 2017 letter, Dr. M.H., the Veteran's treating oncologist, stated that the Veteran was treated for the following diagnosis: "GIST (Gastrointestinal Stromal Tumor) Soft Tissue Sarcoma." (Emphasis added). In an October 2017, VA primary care physician, Dr. M.L. opined that that "technically" the GIST was not an STS for the following reasons: GIST develop from interstitial cells of Cajal (ICCs), while sarcomas and other soft tissue tumors develop from mesenchymal cells; genetics; the World Health Organization (WHO) does not include GIST on their list of STS; the Veteran's GIST was positive for unique IHC markers which are not characteristic of STS, including CD117, MIB-1, and was negative for Desmin and S-100 which are positive in many soft tissue sarcomas; and Agent Orange is not a risk factor or cause of GIST. The examiner concluded that the service treatment records did not note any treatment/diagnosis that at least as likely as not contributed to the Veteran's death. The appellant submitted a private medical opinion from Dr. C.B. in February 2022. Dr. C.B. opined: "[The Veteran's] demise was clearly due to a complex (mixed) tumor type that was not made up of any single cell type (as mistakenly suggested by Dr. M.L. who called it technically a single cell type GIST, which it is not), and thus falls into the general category of soft tissue sarcoma as described by oncologist Dr. M.H. (7 April 2017) and contemplated by the VA rules on presumption for STS. STSs are a diverse group of tumors which are frequently being subdivided, and re-subdivided based on chromosome and gene analyses." The opinion includes a copy of the WHO's Revised 2013 Classification of Soft Tissue Sarcomas which includes GIST. Dr. C.B. went on to explain, "It is my opinion that [the Veteran's] tumor was of mixed cells, some likely from mesenchymal origin...and GIST likely from interstitial cells of Cajal but even this separation is speculative as cells can transform (transformation) back and forth to different cells via metaplasia or stem cell plasticity. Dr. C.B. stated that the VA examiner's "technical comment" only looked at the GIST component and she did not consider the complexity of the Veteran's mixed tumor. Dr. C.B. stated, "This patient's biopsy does satisfy the definition of STS due to the numerous cell types contained in this tumor and therefore should be considered presumptive due to Agent Orange exposure in Nam." In a December 2021 letter (a response/follow-up to the September 2021 Board hearing), the appellant stated, "The doctors know that [the Veteran's] gastrointestinal stromal tumor is a soft tissue sarcoma because of his symptoms, the types of cells in the tumor, and the location of the main tumor in his body. [The Veteran] experienced significant pain in his abdomen which signaled that something was wrong...The pathology reports diagnosed metastatic gastrointestinal stromal tumor. Sites involved were the stomach, liver, and bones." The appellant went on to state that the largest tumor was in the soft tissue of his body, his stomach. The appellant referred to the April 2015 CT scan which confirmed a heterogeneous "soft tissue" mass in the Veteran's stomach. She also noted that GIST had been included in the 2013 edition of the WHO classification of soft tissue sarcomas. Finally, she referenced the April 2017 letter from oncologist, Dr. M.H., in which he confirmed that the Veteran's disease, GIST was an STS. The appellant stated that this implied a connection to Agent Orange exposure. Analysis The appellant contends that the Veteran's fatal gastrointestinal stromal tumor, or GIST, was a soft tissue sarcoma (STS) and that service connection for the cause of his death should be presumptively granted based upon his exposure to herbicide agents in Vietnam. Upon review of the record, the Board finds that the most probative evidence of record indicates that the Veteran was exposed to herbicide agents in service and that GIST (i.e., the cause of the Veteran's death) is classified as a soft tissue sarcoma. 38 U.S.C. §§ 1110, 1116A, 5107; 38 C.F.R. §§ 3.307, 3.309. In this regard, the January 2014 private pathology report confirmed a GIST diagnosis, and the July 2015 Certificate of Death noted end-stage malignant (unspecified) neoplasm of the stomach as the immediate cause of the Veteran's death. Additionally, service personnel records confirm that the Veteran served in the Republic of Vietnam during the requisite time period and exposure to herbicide agents (Agent Orange) is thus demonstrated. The remaining question for consideration here is whether the Veteran's fatal GIST is related to his presumed in service herbicide agent exposure. It is initially unclear if GIST is eligible for presumptive service connection because soft tissue sarcomas (STSs) are included and gastrointestinal tract tumors are excluded from the list of disabilities subject to presumptive service connection. In this particular case, however, the Board finds that the evidence of record demonstrates that the Veteran's GIST is a soft tissue sarcoma. Notably, the list of soft tissue sarcomas does not state that the list is exhaustive or exclusive. See 38 C.F.R. § 3.309(e) (noting that soft tissue sarcoma includes the following listed diseases). Furthermore, the Veteran's private treating oncologist, Dr. M.H. expressly stated that the Veteran's GIST was classified as soft tissue sarcoma. See April 2017 Letter from Dr. M.H. The February 2022 private opinion from Dr. C.B. supports this proposition. Indeed, Dr. C.B. reviewed the Veteran's medical history, including the private pathology/biopsy reports, the October 2017 VA opinion, and Dr. M.H.'s assessment, and opined that the Veteran's GIST satisfied the definition of a soft tissue sarcoma due to the numerous cell types found in his tumor. The Board considers both private opinions to be probative as to the classification of the GIST tumor. Dr. M.H.'s opinion is highly probative because he is a medical expert in the field of oncology (cancer) and is most familiar with and qualified to opine as to cancer cell types and classifications. Dr. C.B.'s opinion is likewise highly probative because it was based on sound medical rationale, a review of the contrary VA opinion, and included supporting medical data. Notably, the 2013 World Health Organization Soft Tissue Sarcoma Classification list cited to by Dr. C.B. includes gastrointestinal stromal tumors. Although the October 2017 VA primary care physician opined that GIST was not an STS, the Board does not find the opinion to be of significant probative value because (and, as noted by Dr. C.B.) she did not consider every cell type within the Veteran's tumor biopsy; did not comment on the mixed cell (or mesenchymal) nature of the Veteran's tumor; and inaccurately noted that GIST was not included in the WHO's list of soft tissue sarcomas. In short, the Board finds that the most competent and probative medical evidence of record demonstrates that the Veteran's fatal GIST is a soft tissue sarcoma and is eligible for presumptive service connection; accordingly, service connection for the cause of the Veteran's death is warranted. See also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (holding the benefit of the doubt must be resolved in the Veteran's favor when the evidence is "nearly equal" or in "approximate balance"). 2. Entitlement to DIC under 38 U.S.C. § 1318 is dismissed as moot. The Board additionally notes that 38 U.S.C. § 1310 and 38 U.S.C. § 1318 provide separate and alternative methods of obtaining VA dependency and indemnity compensation. Entitlement to VA benefits under 38 U.S.C. § 1310 for the cause of death of the Veteran is the greater benefit, and now has been granted in full. The Court has indicated that, only if an appellant's claim for service connection for the cause of death of the Veteran is denied under 38 U.S.C. § 1310, is VA required to also consider an appellant's claim under the provisions of 38 U.S.C. § 1318. Timberlake v. Gober, 14 Vet. App. 122 (2000). Accordingly, the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed as no benefit remains to be awarded and no controversy remains. Swan v. Derwinski, 1 Vet. App. 20 (1990). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hoeft 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.