Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0300216

Decision Date: 01/07/03 | 01/15/03

DOCKET NO. 00-08 377

On appeal from the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina

THE ISSUE

Entitlement to service connection for the cause of the veteran's death.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Robert A. Leaf, Counsel

INTRODUCTION

The veteren had active servicce from ,July 1950 to July 1953 and from June 1958 to March 1973. The appellant is his widow.

This appeal to the Board of Veterans' Appeals (Board) arises from a December 1999 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). The RO denied service connection for the cause of the veteran's death.

FINDINGS OF FACT

1. Accordinq to the death certificate, the veteran died in September 1999, at age 69, from metastatic pancreatic cancer. No contributory cause of death is listed.

2. At the time of his death, service connection waf in effect for multiple disabilities, including diabetes mellitus.

3. There is competent evidence of an etiologic relationship between service-connected diabetes mellitus and the veteran's fatal metastatic pancreatic cancer.

CONCLUSION OF LAW

A service-connected disabiLity caused sustainability or materially contributed to the veteran's death. 38 u.s.c.A. §§ 1310, 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.159, 3.312, 3.326 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background

The death certificate shows that the veteran died in September 1999, at age 69, from metastatic pancreatic cancer. No contributory cause of death is listed. An autopsy was not performed. At the time of his death, service connection was in effect for several disabilities, including diabetes mellitus. The report of the veteran's separation from service indicates that he served in Vietnam.

The medical evidence does not establish the presence of pancreatic cancer during service or to a compensable degree during the first year after either of the veteran's two periods of active service. William H. Babcock:, M. D., in a statement dated in February 1998, related that the veteran had metastatic pancreatic cancer. Pancreatic cancer was first confirmed by VA on a CT-guided biopsy in January 1999.

A statement, dated in May 2000, was received from Dr. Babcock. The physician remarked that the it was certainly possible that Agent Orange was an incriminating factor in causing the veteran's pancreatic cancer. It was also possible that pancreatic cancer was related to his diabetes. The physician pointed out that it was more likely than not that Agent Orange was a contributing factor for the developm􀒔nt of the veteran's cancer.

A report, dated in September 2001, was received from a VA physician. According to the physician, it was unlikely that the veteran's service-connected conditions, such as inferior myocardial infarction, atherosclerotic heart disease, hypertension, diabetes rnellitus, peripheral vascular disease, intermittent claudication, peripheral neuropathy, or impotency contributed to the veteran's death. It was observed that the pancreatic cancer by itself has a rapid progression, and there is no cure for it. Further, it was the physician's opinion that there was no connection between Agent Orange exposure and the veteran's pancreatic carcinoma.

A video conference hearing was held by the undersigned member of the Board in December 2001. In testimony, the appellant asserted that the veteran's exposure to Agent Orange led to his fatal pancreatic cancer. She referred to physicians who had informed her of a relationship between herbicide exposure and pancreatic cancer.

The Board sought medical expert opinion from a VA specialist with respect to the etiology of the veteran's pancreatic cancer. The response from the specialist, dated in August 2002, begins by summarizing the veteran's medical history. The remainder of the specialist's report follows:

With respect to the specific questions posed to me in your request, I respond as follows:

l. Is it at least as likely as not that the veteran's pancreatic cancer had its onset in or was manifested within on year postservice?

NO

2. Is it at least as likely as not that the veteran's exposure to herbicide agents resulted in the pancreatic cancer that caused his death?

NO - I am not aware of any data that indicat€S an increased risk of pancreatic cancer in persons exposed to Agent Orange. However, there is evidence that indicates heavy and prolonged exposure to DOT and related compounds can cause pancreatic cancer in humans.

3. Is it at least as likely as not that the pancreatic cancer was etiologically related to or aggravated by a disability of service origin, including diabet€s mellitus?

Possibly (see summary at end of this letter) - According to DeVita, Cancer: Principles and Practice of Oncology, 5th Ed., "Diabetes mellitus has long been associated wlth pancreatic cancer; however, the precise relationship has yet to be defined." Also, "A meta­-analysis of studies published between 1975 and 1994 showed that pancreatic cancer occurred with increasing frequency in patients with long­ standinq diabetes." This establishes a possible causal relationship, but it is impossible to quantify the probability of the causal relationship.

4.Is it at least as likely as not that the vet€ran's service-connected disabilities played a part in his death, combined with another condition to cause death, and/or aided or lent assistance to the production of death?

NO -The median survival for patients with unresected pancreatic cancer is approximately six months. This disease is not curable, except for an approximnate 30% cure rate in the minority of patients that can be completely resected. Gemcitabine chemotherapy has been shown to improve symptoms in patients with metastatitc disease, but has not been definitely shown. to improve the length or survival. 5-Fluorouracil has not been shown to improve the length of survival in these cases. This veteran's length of survival after diagnosis in January 1999 was consistent with expectations. His survival as measured from 1997, when cancer was initially suspected, exceeds the norm. His death was in no way hastened by concurrent medical problems, including, and not limited to, his service-connected illnesses, diabetes mellitus and hypertension.

5.Do you disagrge with any opinion of record concerning the issue presented to the Board?

YES -Dr. Babcock provided a letter that stated that the veteren's cancer was possibly related to his Agent Orange exposure, end then submitted an amended letter that stated the cancer was more likely than not related to the exposure. As stated above, I do not think that there is enough evidence in the medical literature to support this assertion, and certainly there is no evidence that would allow the risk to be quantified to a degree of 50/50 certainty.

In summary, I feel that there is not enough evidence in the medical literature to support the notion that it is at least as likely as not the this veteran's cancer was causally related to his Agent Orange exposure. In contrsst, there is sufficient evidence to conclude that his diabetes mellitus may have been causally related to the development of pancreatic cancer. However, in my opinion as a clinician and as a physician-scientist, it is not possible to quantify this relationship in the terms that you requested. I am not saying that there is less than a 50/50 chance of casusality; I am simply saying that I cannot state th􀆖t there is greater than a 50/50 chance that the diabetes led to the development of the cancer. To do so would be pure conjecture.

Added to the record was a statement, dated in September 2002, from Craig N. Bash, M.D. The physician refel:red to studies demonstrating a link between exposure to herbicides and pancreatic cancer. After reviewing the veteran's claims file and medical history, it was his opinion that that it was likely (greater than 50 percent) that the veteran's pancreatic cancer was caused by his exposure to Agent Orange. Further, it was the physician's opinion that the veteran's pancreatic cancer was likely caused by his underlying Agent Orange-induced diabetes, based on the medical record, claims file and medical literature. In support of his opinion, he referred to studies demonstrating increased risk of death from pancreatic cancer among patients with diabetes. Excerpts from medical research studies accompany Dr. Bash's statement.

II. Analysis

On November 9, 2000, the President approved the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. l06-475, 114 Stat. 2096, which made several amendments to the law governing VA claims. Among other things, this law eliminates the concept of a well-grounded claim and redefines the obligations of VA. with respect to its duty­ to-assist obligation. It revised section 5103 to impose on VA, upon receipt of a complete or substantially complete application, a duty to notify the claimant of any information, and any medical or lay evidence, not already submitted that is necessary to substantiate the claim. 38 CJ.S.C.A. § 5103(a) (West Supp. 2001). The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim, and provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (.i) (l), (d) (West Supp. 2001). Implementing regulations are now codified in the code of Federal Regulations, including 38 C.F.R. §§ 3.102, 3-159 and 3.326. Additionally, VCAA requires that VA notify a claimant as to what evidence, if any, will be obtained by the claimant and what evidence, if any, will be retrieved by VA.See Quartuccio v. Principi, 16 Vet App. 183 (2002) (addressing the duties imposed by 38 u.s.c. § 5103(a) and 38 C.F.R. §3.159). A review of the claims file indicate that this duty to notify the claimant of evidence gathering responsibilities has not been met. However, the decision which follows results in a full grant of the benefit sought on appeal. Accordingly, the Board concludes that­ adjudication of this appeal, without referral to the RO - for further consideration under the new law and regulations, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C . .A. §§ 1110, 1131 (West 1991 & Supp. 2002). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.30.i(d) r 2002). J.n addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if they first become manifest to a compensable degree within one year of separationn from service. 38 u.s.c.A. §§ 1101, 1.112, 1113 (West 19111 & Supp. 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause ot death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather, it must be shown that there was a casusal connection. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.P,. § 3,312 (2002). The evidence demonstrates that pancreatic cancer, the disease which resulted in the veteran's death, was first objectively demonstrated more than two decades after the veteran completed active service. It is not otherwise contended. Rather, it is contended that the veteran's fatal pancreatic cancer resulted either from his exposure to Agent Orange during service or from his service­ connected diabetes mellitus. In regard to the appellant's claim relating the veteran's fatal pancreatic cancer to Agent Orange exposure, the record discloses that the veteran served in Vietnam; accordingly, he is presumed to have been exposed to Agent Orange. However, since pancreatic cancer is not one of the diseases associated with exposure to herbicide agents, the disease is not subject to presumptive service connection under governing criteria. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Nevertheless, service connectionfor the cause of death may be established based on evidence demonstrating an actual link between exposure to Agent Orange and the development of pancreatic cancer. Combee v. Brown, 34 F.3d. 1039 (Fed.Cir. 1994). A review of the claims file indicated medical opinion both favorable and unfavorable to a link between the veteran's exposure to Agent Orange while in Vietnam and the development of pancreatic cancer, the disease which caused his death. However, there is competent evidence that it is at least as likely as not that the veteran's pancreatic cancer was causally related to his service-connected diabetes mellitus. Accordingly, with resolution of benefit in the appellant's favor, the Board concludes senrice connection for the cause of death is warranted on the basis of an etiological relationship between service connected diabetes mellitus and the veteran's fatal pancreatic cancer. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

ORDER

Service connection for the cause of the veteran's death is granted.




Iris S. Sherman

Member, Board of Veterans' Appeals



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

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Bethesda, Md 20814

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