Citation Nr: 1233470 Decision Date: 09/26/12 Archive Date: 10/09/12 DOCKET NO. 08-36 882A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for squamous cell cancer of the hard palate and maxillary sinus for accrued benefits purposes. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD) for accrued benefits purposes. 4. Entitlement to service connection for lung cancer for accrued benefits purposes. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and three friends ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970, and from January 1975 to January 1979. He served in Vietnam from July 1968 to October 1970. The Veteran died in December 2006. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2011, a hearing was held before a Veterans Law Judge sitting at the RO. In June 2011, the Board remanded the appeal for additional development and it has since returned to the Board. In May 2012, the representative submitted additional argument. Thereafter, the appellant was notified that the Veterans Law Judge who conducted her hearing was no longer employed by the Board and she was offered the opportunity to testify at another hearing. The appellant responded, indicating she did not wish to appear at a hearing. Accordingly, the Board will proceed with the appeal. The issues of entitlement to service connection for squamous cell cancer of the hard palate and maxillary sinus, PTSD, and lung cancer, all for accrued benefits purposes, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam war and in-service herbicide exposure is presumed. 2. The Veteran died in December 2006; the death certificate lists the immediate cause of death as metastatic squamous cell cancer of maxillary sinus and hard palate. 3. Squamous cell cancer of the maxillary sinus and hard palate is not a disease presumptively associated with herbicide exposure. 4. Resolving reasonable doubt in the claimant's favor, the Veteran's cause of death is related to in-service herbicide exposure. CONCLUSION OF LAW Metastatic squamous cell carcinoma of the maxillary sinus and hard palate, was incurred during active service. 38 U.S.C.A. §§ 1110, 1116, 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Considering the decision to grant entitlement to service connection for the cause of the Veteran's death, a discussion of whether VA complied with the notice and assistance requirements of the VCAA, 38 U.S.C.A. § 5100 et seq., would serve no useful purpose. Analysis Dependency and indemnity compensation is payable to a surviving spouse of a qualifying veteran who died from a service-connected disability. 38 U.S.C.A. § 1310. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). In determining whether service connection is warranted for the cause of the Veteran's death, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. Evidence of record shows that in November 2004, the Veteran was diagnosed with invasive basaloid squamous cell carcinoma of the hard palate and right maxilla. The cancer subsequently metastasized to various areas, including the lungs. The Veteran passed away in December 2006. The death certificate lists the immediate cause of death as metastatic squamous cell cancer of maxillary sinus and hard palate. Other significant conditions contributing to death but not resulting in the underlying cause were bacteremia and anemia. At the time of his death, the Veteran was not service-connected for any disability. In June 2006, the RO denied entitlement to service connection for squamous cell cancer of the palate. In May 2007, the RO denied service connection for accrued benefits purposes. Notwithstanding, the Board must determine whether service connection should have been granted for that disability on a de novo basis as part of the appellant's claim for service connection for the cause of the Veteran's death. The appellant argues that the Veteran's death is related to his military service. Specifically, she argues that the squamous cell carcinoma was caused by Agent Orange exposure. The law establishes a presumption of service connection for disease associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War shall be presumed to have been exposed during such service to herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to herbicide agents shall be the last date on which he served in Vietnam during the Vietnam era. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). As service records show that the Veteran served in Vietnam during the Vietnam era his exposure to Agent Orange is presumed. The list of diseases associated with exposure to certain herbicide agents includes respiratory cancers (cancer of the lung, bronchus, larynx, or trachea). See 38 C.F.R. § 3.309(e). Based on Veterans and Agent Orange: Update 2010 and prior reports of the National Academy of Sciences (NAS), the Secretary has determined that a presumption of service connection based on exposure to herbicides in Vietnam is not warranted for cancers of the oral cavity, pharynx, or nasal cavity (including ears and sinuses). The NAS found inadequate or insufficient evidence to determine whether an association existed between herbicide exposure and these types of cancers. See 77 Fed. Reg. 47,924-47,928 (Aug. 10, 2012). The appellant argues that the sinuses should be considered part of the respiratory system. In support of her claim, she submitted excerpts from an anatomy textbook. The Board has considered this information, but under applicable law, presumptive service connection cannot be established for squamous cell carcinoma of the hard palate and maxillary sinus. That is, this specific cancer is not on the list of diseases presumptively associated with herbicide exposure. Notwithstanding the presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards Act does not preclude a claimant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, under Combee, the presumption is not the sole method for showing causation and thereby establishing service connection. See also Stefl v. Nicholson, 21 Vet. App. 120 (2007). A service-connected disorder is one which was incurred or aggravated by active service, or in the case of certain diseases, like malignant tumors, was demonstrated to a compensable degree within one year following separation from active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.307, 3.309(a). The claimant does not contend and evidence of record does not show that the Veteran's cancer was either diagnosed during service or was compensably disabling within one year following discharge. As stated, the claimant contends the Veteran's cancer is due to Agent Orange. Thus, the Board must consider whether there is a causal relationship to herbicide exposure. In support of her claim, the appellant submitted copies of Board decisions, wherein service connection and/or cause of death was granted for squamous cell carcinoma of the maxillary sinus. The Board has considered these decisions, but notes that they have no precedential value. 38 C.F.R. § 20.1303 (2011). The claims file also contains various statements from the Veteran's treating providers. An August 2006 statement from Dr. J.M., a private otolaryngologist, indicates that he first saw the Veteran in November 2004 when he presented with a large tumor of the right side of the hard palate and the right maxillary sinus. He noted that the Veteran served in Vietnam, worked with helicopters, and flew through areas where Agent Orange was used. He further stated: Of course it is now known that Agent (Orange) is a carcinogen. It is known to cause cancers of the respiratory tract, presumably from inhaling the substance. All inhaled carcinogens can cause cancer anywhere along the respiratory tract from the nose and sinuses to the lungs. Almost certainly [the Veteran's] cancer is directly attributable to his exposure to Agent Orange, and this cancer, more likely than not was caused by his contact with and his inhalation of that agent while he was serving his country in Vietnam. A December 2008 statement from Dr. A.R., a private otolaryngologist, states that the letter was being sent at the request of the claimant. He noted that the Veteran was his patient from 2004 to 2006. It was his understanding that Agent Orange as a respiratory inhalant had been associated with cancers of the larynx and respiratory tract, but that benefits had been denied for oral cavity, palate, and sinonasal cancers. He further stated: It seems this is an arbitrary decision as a change in the frequency of any of these cancers especially sinonasal or oral cavity carcinoma would be extremely difficult to identify because of their rare nature. Since any carcinogens inhaled must go through the sinonasal tract or oral cavity, I would suspect exposure to these would not only increase the incidence of laryngeal and pulmonary cancers but along the way may also affect the sinonasal tract or oral cavity. This is not my first encounter with Agent Orange related cancers of the upper aerodigestive tract, and I would hope that the [VA] would reconsider this and label it a service-connected disability. In March 2011, Dr. A.R. submitted an additional statement. He stated that it was his understanding that recently a case of sino-nasal cancer was determined to be service connected. He noted that these tumors were extremely rare in the general population and that the other case he mentioned was very similar to the Veteran's tumor. He further stated that "[s]ince carcinogenic inhalants must pass through the nose or mouth to reach the respiratory tract, it seems as likely as not that the tumor [the Veteran] developed was related to Agent Orange exposure." The June 2011 remand directed that a medical opinion be obtained from an "appropriate" VA specialist. In April 2012, the claims file was reviewed by a VA physician in hematology/oncology. The physician stated it was his opinion that it would be mere speculation to opine as to whether the metastatic squamous cell carcinoma of the hard palate and maxillary sinus was related to or caused by herbicide exposure. He further stated that the most likely causative factor would have been the Veteran's history of tobacco use. On review, herbicide exposure is established and the record contains two private medical opinions favorable to the appellant's claim from otolaryngologists. The April 2012 VA opinion from an oncologist indicates that an opinion would be speculative, but considering the statement that tobacco use was the most likely factor, it can arguably be interpreted as a negative opinion regarding herbicide exposure. Private medical records document a prior history of smoking, however, years prior to the submission of any claim the Veteran reported that he had quit smoking in 1982. The VA examiner, however, did not provide any support for his statement regarding causation, nor did he discuss the private opinions of record or the death certificate which specifically states that tobacco did not contribute to death. As discussed above, the National Academy of Science found inadequate or insufficient evidence to determine whether there was a relationship between herbicide exposure and the Veteran's particular cancer. In considering the evidence of record, the cause of the Veteran's cancer may never be known to a certainty. Indeed, in their 2011 report, Veterans and Agent Orange, Update 2010, the National Academy of Science noted the problems faced by researchers due to the small number of cases of oral, nasal and pharyngeal cancers in both populations exposed to Agent Orange and populations who were not so exposed. Id. at 283. This was a problem noted by Dr. A.R. Under the benefit-of-the-doubt rule, however, for the appellant to prevail, there need not be a preponderance of the evidence in her favor, but only an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given the evidence set forth above, such a conclusion cannot be made in this case. Thus, resolving reasonable doubt in the claimant's favor, entitlement to service connection for the cause of the Veteran's death is warranted. See 38 C.F.R. § 3.102. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. REMAND In May 2007, the RO also denied entitlement to service connection for squamous cell cancer of the hard palate, PTSD, and lung cancer, for accrued benefits purposes. In May 2008, the appellant submitted a statement wherein she indicated that she wanted to appeal the VA's May 2007 decision on the referenced claim. In May 2008, she also sent a letter to her Congressman indicating that she wished to appeal the decision. In June 2008, VA responded to the congressional inquiry and stated that they were currently processing the claimant's "notice of disagreement with our rating decision that denied her claim for entitlement to Dependency and Indemnity Compensation and her claim for accrued benefits based on the death of her husband." In August 2008, VA furnished a statement of the case addressing only the issue of entitlement to service connection for the cause of death. On review, however, the claimant's statement arguably constitutes a notice of disagreement with the denial of accrued benefits. See 38 C.F.R. § 20.201 (2011). Thus, a remand is necessary so that a statement of the case can be furnished on these issues. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The RO/AMC must issue a statement of the case addressing entitlement to service connection for squamous cell carcinoma of the hard palate and maxillary sinus, PTSD, and lung cancer, for accrued benefits purposes. If, and only if, the appellant completes her appeal by filing a timely substantive appeal on the aforementioned issues should they be returned to the Board. 38 U.S.C.A. § 7104 (West 2002). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs