Citation Nr: 0001644 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 97-03 921 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the veteran's death. ATTORNEY FOR THE BOARD M. Cooper, Associate Counsel INTRODUCTION The veteran served on active duty from October 1948 to September 1949, July 1959 to July 1962, and from August 1962 to November 1965. He died in December 1990 and the appellant is his widow. This case comes to the Board of Veterans' Appeals (Board) from an October 1996 RO decision which denied service connection for the cause of the veteran's death. A Travel Board hearing was scheduled for May 1999; however it was canceled at the appellant's request. The case was remanded to the RO in September 1999 in order to give the appellant an opportunity to appoint a representative. In an October 1999 correspondence, the RO provided the appropriate form and instructions necessary to designate a power of attorney; however, the appellant failed to respond. The case was returned to the Board in January 2000. FINDINGS OF FACT 1. The veteran's active military service included service in Vietnam, and he died many years after service. 2. His established service-connected condition at the time of his death was Scheuermann's disease (a back disability), rated 10 percent. This condition did not cause death and did not play a substantial or material contributory role in his death 3. The principal cause of the veteran's death was renal failure; contributory causes of death included cancer of the esophagus, cancer of the piriform sinus of the pharynx (the piriform sinus of the pharynx does not anatomically include the larynx, and he did not have primary cancer of the larynx), hypertension, and diabetes mellitus. These principal and contributory causes of death were not present during service or for many years thereafter, and were not caused by any incident of service. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute to the veteran's death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran served on active duty from October 1948 to September 1949, July 1959 to July 1962, and from August 1962 to November 1965, including service in Vietnam during his last period of active duty. During his lifetime, his only established service-connected condition was Scheuermann's disease (a back disability), with a 10 percent evaluation. A review of the veteran's service medical records from his first period of active duty (1948-1949) shows no findings or diagnosis of renal disease, cancer or any other condition related to the cause of death. A review of his service medical records from his last two periods of service (almost continuous from 1959 to 1965) reveals that on examination for enlistment purposes, no pertinent abnormalities were noted. An October 1964 periodic examination shows that his blood pressure reading was 140/90. Subsequent blood pressure readings were within normal limits. It was noted that he had a transient episode of hypertension, not sustained. The November 1965 separation examination report reveals all pertinent findings, including blood pressure readings, were normal. An early December 1984 letter from Fred Kephart, M.D. noted that he treated the veteran in January 1984 with initial diagnoses of hypertension and diabetes mellitus. In September 1984, a small mass on the left neck was noted, and subsequent work-up (including by Edwin Torrey, M.D.) showed a tumor of the left piriform [also spelled pyriform] sinus of the hypopharynx, probably involving the larynx and suspected metatastic tumor on the left. Surgery was recommended by Dr. Torrey. Private medical records show that the veteran was admitted to York Hospital in December 1984 for surgery by Dr. Torrey. A December 1984 operative report reveals a preoperative diagnosis of carcinoma of the left hypopharynx with left cervical metastasis. The veteran underwent a total laryngectomy, partial hypopharyngectomy, and left radical neck dissection. The operative findings indicated a fungating tumor in the veteran's left hypopharynx with a tumor in the mid portion of the left neck. It was noted that the tumor was located in the left piriform sinus and seemed to arise from the lateral surface of the piriform sinus. The pathology report shows that the laryngectomy specimen exhibited moderately well to poorly differentiated squamous cell carcinoma arising in the left piriform sinus, infiltrating or invasive to pre-epiglottic space and negative for anterior extension to the thyroid cartilage. The records show that on discharge from the hospital in January 1985, the final diagnosis was carcinoma of the hypopharynx with left neck metastasis. In a December 1984 statement, Dr. Kephart indicated that the veteran had been under his care for approximately one year. He indicated that the veteran underwent a laryngectomy and left radical neck exploration for removal of a carcinoma of the left piriform sinus which was metastatic to the left neck. Dr. Kephart related that the veteran's other current medical problems included severe hypertension, diabetes mellitus, renal insufficiency, and left ventricular hypertrophy. In December 1984, the veteran filed a claim for service connection for a tumor of the pharynx, claimed as secondary to Agent Orange exposure. In a January 1985 statement, Dr. Torrey noted recent treatment and diagnosis of squamous cell carcinoma of the left piriform sinus with left neck metastasis. On VA examination in February-March 1985, the veteran complained that he could not speak and had swelling and soreness on the left side of his throat. The diagnoses were carcinoma of the left hypopharynx, status post surgery, hypertension, and diabetes mellitus. In an April 1985 decision, the RO denied service connection for carcinoma of the pharynx, claimed as secondary to Agent Orange exposure. In a May 1989 statement, Fred Kephart, M.D., noted that the veteran was being followed for hypertension with left ventricular hypertrophy; congestive heart failure, secondary to hypertensive heart disease; diabetes mellitus, Type II; chronic bronchitis; chronic renal failure; carcinoma of the left piriform sinus, status post laryngectomy and left radical neck exploration; and previous history of Bell's palsy, resolved. In a November 1989 statement, Edward Rogers, Jr. M.D. indicated that the veteran was recently diagnosed as having squamous cell carcinoma of the esophagus. Among the veteran's other long-standing diagnoses, Dr. Rogers listed carcinoma of the larynx. A private hospital summary reveals that the veteran was admitted to the hospital in December 1989 for surgery for esophageal carcinoma, which his doctor found in October 1989. At discharge in March 1990, diagnoses were squamous cell carcinoma of the esophagus; general debility and decreased exercise tolerance; hospital acquired pneumonia; acute renal failure; chronic renal failure; diabetes mellitus, Type II; carcinoma of the hypopharynx; gouty arthritis; compensated congestive heart failure; in-hospital respiratory arrest; and hypertension. His hospital course, in pertinent part, consisted of a transhiatal esophagectomy and acute hemodialysis. It was noted that he had an extremely complicated and prolonged hospital course. The veteran's death certificate reveals that he died at a nursing home on December 28, 1990. The immediate cause of death was listed as renal failure. No other causes of death were listed. Other significant conditions contributing to death but not resulting in the underlying cause were listed as cancer of the esophagus, cancer of the "larynx," hypertension, and diabetes. An autopsy was not performed. [The file shows that the RO made unsuccessful efforts to obtain the veteran's terminal treatment records from the nursing home, and such records have reportedly been destroyed.] In her December 1996 notice of disagreement and January 1997 substantive appeal, the appellant maintained that the veteran's death was caused by exposure to Agent Orange. She stated that the veteran had no history of tobacco use. She asserted that his renal failure was caused by throat cancer. She explained that the cancer caused his kidneys, as well as other organs, to fail. In May 1997, the RO requested a VA medical opinion to determine if the primary site of the veteran's carcinoma was the left piriform sinus and if the larynx could be considered part of the left piriform sinus or hypopharynx. In response to the RO's request, a May 1997 medical opinion from a VA doctor indicated that the primary site of the veteran's carcinoma was the left piriform sinus, with metastasis to his left neck, and such is anatomically part of the pharynx. It was noted that the veteran's vocal cords (part of his larynx) were free of cancer at the time of the surgery. The doctor noted that the larynx is not part of the piriform sinus or hypopharynx. The doctor further pointed out that pharyngeal cancers are not listed as Agent Orange diseases. In a November 1998 statement, the appellant indicated that the veteran had kidney problems and high blood pressure after his discharge from active duty. She maintained that the veteran's cancer and high blood pressure were related to his exposure to Agent Orange during service. The appellant maintained that the veteran's death was listed as renal failure because his kidneys gave out due to the cancer. II. Analysis The appellant's claim for service connection for the cause of the veteran's death is well grounded, meaning plausible; the RO has properly developed the evidence, and there is no further VA duty to assist in this claim. 38 U.S.C.A. § 5107(a). To establish service connection for the cause of the veteran's death, the evidence must show that a service- connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of 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 must contribute substantially or materially; 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service incurrence will be presumed for certain chronic diseases, including cardiovascular-renal disease (which includes hypertension), malignant tumors, and diabetes mellitus, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange) if he has one of the listed Agent Orange presumptive diseases, unless there is affirmative evidence to establish that he was not exposed to any such agent during such service. In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is not record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e); McCartt v. West, 12 Vet. App. 164 (1999). It is neither claimed nor shown that the veteran's only established service-connected disability, Scheuermann's disease (a back disorder), played any role in his death. The veteran's death certificate indicates the primary cause of death was renal failure; contributory causes of death were listed as cancer of the esophagus, cancer of the "larynx," hypertension, and diabetes. The questions presented are whether the conditions which were the primary and contributory causes of death were incurred in or aggravated by service, and whether the Vietnam veteran actually had cancer of the larynx (which is subject to service connection under the Agent Orange presumption). Service medical records from the veteran's 1948-1949 and 1959-1965 periods of active duty, and medical records for many years after service, do not show the conditions which were the principal or contributory causes of his death; such conditions are shown at various times from 1984 until the veteran's death in 1990. Putting aside the question of whether the veteran had "larynx" cancer, there is no medical evidence to link the principal or contributory causes of death with the veteran's active duty. The appellant has argued that one of the contributory causes of the veteran's death was throat cancer and such was due to exposure to Agent Orange during active duty. The veteran had active service in Vietnam; however, he is presumed to have been exposed to Agent Orange in service only if he had one of the Agent Orange presumptive diseases. McCartt, supra. Although the death certificate lists cancer of the "larynx" as a contributory cause of death, the medical evidence shows that the veteran did not have a primary larynx cancer. Rather, the 1984 operative and pathology reports and the 1997 VA medical opinion reveal that the primary site of the veteran's cancer was the left piriform sinus which is anatomically part of the pharynx. The Board notes that presumptive service connection may not be established for a designated cancer if it developed as the result of metastasis of a cancer not associated with herbicide exposure. VAOPGCPREC 18-97; Darby v. Brown, 10 Vet. App. 243 (1997). Pharyngeal cancer is not a disease subject to presumptive service connection under provisions related to Agent Orange. See 64 Fed.Reg. 59232 (1999). Thus, in order for veteran's pharynx cancer to be deemed service connected, there would have to be competent medical evidence to link it with his service. No such competent medical evidence has been submitted. Statements by the appellant, to the effect that the veteran had cancer due to Agent Orange exposure, and that such cancer caused or contributed to his death, do not constitute competent medical evidence, since, as a layman, she has no competence to give a medical opinion on diagnosis or etiology of a disorder. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The weight of the evidence establishes that the primary and contributory causes of the veteran's death were not incurred in or aggravated by service, and the criteria for service connection for the cause of death are not met. As the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt doctrine is inapplicable, and service connection for the cause of the veteran's death must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the veteran's death is denied. L.W. TOBIN Member, Board of Veterans' Appeals