MALIGNANT NEOPLASMS OF THE DIGESTIVE SYSTEM

Summary

The Veteran, an Army Veteran who served from October 1970 to October 1973, passed away from pancreatic cancer during the pendency of his appeal. His surviving spouse has been substituted as the appellant. The Veteran sought service connection for liver cancer, lung cancer, and pancreatic cancer, claiming they were due to in-service toxic exposure risk activity (TERA), specifically Agent Orange exposure during Vietnam service. The Board found that the Veteran had present disabilities of these cancers and conceded in-service TERA exposure, including herbicide agents, which is also recognized by statute. The primary issue was the etiologic link between the cancers and service. The Board noted that the initial rating decision contained procedural errors and failed to obtain adequate medical nexus opinions, instead relying on the absence of presumptive status and making unsubstantiated medical determinations. However, the Board found a July 2025 VA TERA Medical Opinion DBQ by A.B., NP, to be competent and probative, providing a positive nexus opinion. Despite some brevity in the opinion, the Board found it persuasive, especially given the Veteran's passing and the lack of refuting medical evidence. The Board concluded that the evidence was in approximate equipoise, and after resolving reasonable doubt in the appellant's favor, service connection for liver, lung, and pancreatic cancers was granted.

Rationale

Competent and probative VA TERA Medical Opinion DBQ; Conceded in-service TERA exposure; Approximate equipoise of evidence; Benefit of the doubt applied

Full Decision Text

Citation Nr: A26037706
Decision Date: 04/22/26	Archive Date: 04/22/26

DOCKET NO. 250918-598919
`		DATE: April 22, 2026

ORDER

Entitlement to service connection for liver cancer is granted. 

Entitlement to service connection for lung cancer is granted.

Entitlement to service connection for pancreatic cancer is granted.

FINDINGS OF FACT

The evidence of record is at least in approximate equipoise as to whether the Veteran's liver, lung, and pancreatic carcinomas were attributable to his conceded in-service toxic exposure risk activity.

CONCLUSIONS OF LAW

1. The criteria for service connection for liver cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for lung cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303

3. The criteria for service connection for pancreatic cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served honorably on active duty in the United States Army from October 1970 to October 1973. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2025 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), serving as the Agency of Original Jurisdiction (AOJ).

In the September 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. Unfortunately, on October 29, 2025 - during the pendency of his Board appeal - the Veteran passed away from malignant neoplasm of the pancreas. The Veteran's surviving spouse has been granted substitution and is now pursuing the appeal on his behalf. See VA 21-0847 - Request for Substitution of Claimant Upon Death of Claimant, received November 14, 2025; Notification Letter, dated November 26, 2025; see also 38?C.F.R.?§?20.1302(a) (permitting a qualifying person to substitute for a deceased claimant with a pending appeal).

The Board further notes that the Veteran also identified the following issues and AOJ rating decisions for potential Board review in the September 2025 Notice of Disagreement: entitlement to service connection for sleep apnea as adjudicated in a December 2010 rating decision; and entitlement to service connection for aortic valve stenosis and hypothyroidism as adjudicated in a January 2024 rating decision. VA Form 10182, received September 18, 2025. However, the September 2025 Notice of Disagreement was filed more than one year after notice of each of those decisions and is therefore untimely under 38 C.F.R. §?19.52(a), which requires a Notice of Disagreement to be filed within one year from the date VA mails notice of the adverse decision. No subsequent AOJ rating decision pertaining to those issues was issued within one year of the September 2025 Notice of Disagreement, and neither the substituted appellant nor her representative has alleged - or otherwise shown - good cause to excuse the delay. See Hearing Transcript, dated January 6, 2026. Therefore, pursuant to 38 C.F.R. §?19.52(a), the September 2025 Notice of Disagreement cannot serve to place those issues into appellate status. See also 38 U.S.C. §?7105.

The Board is mindful of the recent decision in Ferko v. McDonough, 37 Vet. App. 262 (2024), in which the United States Court of Appeals for Veterans Claims (Court) held the one-year deadline to file a legacy notice of disagreement is not a jurisdictional bar to Board review but is a mandatory claims-processing rule. The Ferko decision dealt with the timeliness of a legacy notice of disagreement; however, the reasoning behind the Ferko ruling is applicable to the filing of a notice of disagreements under the modernized appellate framework governed by the Appeals Modernization Act (AMA). Therefore, the one-year deadline to file a VA Form 10182 remains a mandatory claims-processing rule subject to waiver by the Board rather than a jurisdictional bar. Similarly, in Hall v. McDonough, 34 Vet. App. 329, 333 (2021), the Court confirmed that procedural
 of Appeals for Veterans Claims (Court) held the one-year deadline to file a legacy notice of disagreement is not a jurisdictional bar to Board review but is a mandatory claims-processing rule. The Ferko decision dealt with the timeliness of a legacy notice of disagreement; however, the reasoning behind the Ferko ruling is applicable to the filing of a notice of disagreements under the modernized appellate framework governed by the Appeals Modernization Act (AMA). Therefore, the one-year deadline to file a VA Form 10182 remains a mandatory claims-processing rule subject to waiver by the Board rather than a jurisdictional bar. Similarly, in Hall v. McDonough, 34 Vet. App. 329, 333 (2021), the Court confirmed that procedural missteps - for example, filing with the incorrect form - do not deprive the Board of jurisdiction, although VA may dismiss nonconforming filings. Finally, the Court in Percy v. Shinseki, 23 Vet. App. 37, 45 (2009), clarified that while VA may waive claims-processing rules, it may not waive statutory prerequisites for appellate review.

Here, the reviewable record contains no indication that extraordinary circumstances prevented timely filing, no request for equitable tolling or waiver was made, and no VA action can reasonably be construed as an implicit waiver of timeliness. Additionally, the record reflects no VA procedural irregularities that would justify tolling or waiver under Ferko, Hall, or Percy. Accordingly, because the September 2025 Notice of Disagreement was untimely and no exception applies, the issues of entitlement to service-connected sleep apnea, aortic valve stenosis, and hypothyroidism never reached the stage at which they could be docketed before the Board. Consequently, they are not properly before the Board in this appeal.

On January 6, 2026, the undersigned Veterans Law Judge conducted a Board hearing, during which the substituted appellant appeared and testified. A full transcript of that proceeding is on file. See Hearing Transcript, dated January 6, 2026. Therefore, the Board may only consider the evidence of record at the time of the September 2025 AOJ rating decision on appeal, as well as any evidence submitted by the appellant or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.?38?U.S.C. §?1110;?38?C.F.R. §?3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in, or if preexisting service, was aggravated therein.?38?C.F.R. §?3.303(a). 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. §?3.303(d).? 

To establish service connection for a disability there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki,?25?Vet. App.?231, 236?(2010); Shedden v. Principi,?381 F.3d 1163, 1167?(Fed. Cir. 2004); Gutierrez v. Principi,?19?Vet. App.?1, 5?(2004) (citing Hickson v. West,?12?Vet. App.?247, 253?(1999)).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected even
3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki,?25?Vet. App.?231, 236?(2010); Shedden v. Principi,?381 F.3d 1163, 1167?(Fed. Cir. 2004); Gutierrez v. Principi,?19?Vet. App.?1, 5?(2004) (citing Hickson v. West,?12?Vet. App.?247, 253?(1999)).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). For certain military personnel who served during the Vietnam Era, an exposure to herbicide agents in service may be presumed, as a matter of law. See 38 C.F.R. § 3.307(a)(6). When that presumption does not apply, the Board may determine that the Veteran was exposed to herbicide agents based on the specific facts of the case, that is, on a facts-found basis. 

The Board considers all possible theories of service connection. See El Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013). However, even if a presumption of service connection is not warranted, the Veteran may show that his disability is directly related to exposure to toxic exposure. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure.

Additionally, although the Board must provide adequate reasons and bases for a decision, the Board need not discuss all evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-1381 (Fed. Cir. 2000). The analysis below focuses on what the relevant evidence shows, or fails to show, with respect to the Veteran's claims on appeal. Consequently, any evidence not discussed within this decision is irrelevant, duplicative, or unfavorable to the Veteran's claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Nevertheless, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.?38?U.S.C. §?5107;?38?C.F.R. §?3.102; see also Gilbert v. Derwinski,?1?Vet. App.?49?(1990).

1. Entitlement to service connection for liver cancer. 

2. Entitlement to service connection for lung cancer.

3. Entitlement to service connection for pancreatic cancer.

The appellant contends that the Veteran developed liver, lung, and pancreatic cancers due to in-service VA toxic exposure risk activity (TERA). Specifically, at the January 2026 Board hearing, the appellant testified that the Veteran was exposed to Agent Orange throughout his Vietnam service and was regularly around radar towers and mortar fire. Hearing Transcript, pgs. 4-5, dated January 6, 2026. The appellant further reported that the Veteran lacked any lifestyle or genetic risk factors for pancreatic cancer, and that VA clinical personnel had informally indicated that Agent Orange exposure was the likely cause. Id. at 7-8. The appellant's representative asserted that service connection is warranted for the conditions on appeal because a TERA Disability Benefits Questionnaire (DBQ) that was part of the record
, and pancreatic cancers due to in-service VA toxic exposure risk activity (TERA). Specifically, at the January 2026 Board hearing, the appellant testified that the Veteran was exposed to Agent Orange throughout his Vietnam service and was regularly around radar towers and mortar fire. Hearing Transcript, pgs. 4-5, dated January 6, 2026. The appellant further reported that the Veteran lacked any lifestyle or genetic risk factors for pancreatic cancer, and that VA clinical personnel had informally indicated that Agent Orange exposure was the likely cause. Id. at 7-8. The appellant's representative asserted that service connection is warranted for the conditions on appeal because a TERA Disability Benefits Questionnaire (DBQ) that was part of the record prior to the September 2025 rating decision on appeal contained a positive nexus opinion. See id. at 6-9.

At the outset, the Board notes that the AOJ conceded the Veteran had present disabilities of liver cancer, lung cancer, and pancreatic cancer in the September 2025 rating decision on appeal. Rating Decision - Narrative, dated September 8, 2025. In the same rating decision, the AOJ also conceded the second criterion of service connection by stating, "Participation in a toxic exposure risk activity is conceded. Evidence shows that you performed service in Vietnam." Id.; see also VA TERA Memoranda, titled "other," dated August 17, 2023, and April 3, 2026 (noting the Veteran qualified for presumption of exposure to in-service TERA - namely, herbicide agents). Under the AMA, the Board is bound by such favorable findings unless they are rebutted by clear and unmistakable evidence. 38 C.F.R. §§ 3.104(c), 20.801(a). After a thorough review of the Veteran's electronic claim file, the Board concludes that such clear and unmistakable evidence does not exist. The Board also notes that herbicide exposure during Vietnam service is further recognized by statute and regulation. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Accordingly, the Board finds that the first two elements of secondary service connection are established. 

Therefore, the remaining question is whether the Veteran's disabilities of liver, lung, and pancreatic cancers were etiologically attributable to military service. Here, the Board finds that the evidence of record available for consideration under the AMA is at least in approximate equipoise as to whether the Veteran's liver, lung, and pancreatic cancers were attributable to service. 

In arriving at this decision, the Board first notes that the record does not contain a negative nexus opinion. In the September 2025 rating decision on appeal, the AOJ declined to obtain medical nexus opinions for the Veteran's pancreatic and liver cancers because the "Secretary has determined there is no indication of association between this condition and participation in a TERA. There is also no competent medical or scientific evidence of an association between your claimed disability and in-service TERA." Rating Decision - Narrative, dated September 8, 2025. Regarding the Veteran's lung cancer, the AOJ reasoned that because the Veteran's lung involvement represented metastases from pancreatic cancer rather than a primary lung malignancy, the herbicide presumption did not apply. See id. These determinations were made even though the claims file contained a July 2025 VA TERA Medical Opinion DBQ authored by A.B., NP, which provided a positive nexus opinion in favor of the Veteran. See C&P Exam, received August 27, 2025. 

In declining to obtain a VA medical opinion and in dismissing the possibility of a nexus without medical support, the AOJ effectively made medical determinations requiring expert interpretation. Importantly, the Board - and, likewise, the AOJ - is precluded from substituting its own medical judgment for that of a competent medical professional. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that adjudicators may not rely on their own unsubstantiated medical conclusions); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (finding that the Board made a medical determination as to the relative severity, common symptomatology, and usual treatment of an ACL injury without citing to any independent medical evidence to corroborate its finding); Gilbert v. Derwinski, 1?Vet. App.?49, 57 (1990) (holding that "the Board (and, inferentially, the AOJ) must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive"). The Court has further held in Stefl v. Nicholson, 21 Vet. App. 12 (2007), that medical opinions must contain a reasoned analysis and that reliance
 428, 434 (2011) (finding that the Board made a medical determination as to the relative severity, common symptomatology, and usual treatment of an ACL injury without citing to any independent medical evidence to corroborate its finding); Gilbert v. Derwinski, 1?Vet. App.?49, 57 (1990) (holding that "the Board (and, inferentially, the AOJ) must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive"). The Court has further held in Stefl v. Nicholson, 21 Vet. App. 12 (2007), that medical opinions must contain a reasoned analysis and that reliance solely on the absence of presumptive status is inadequate. See also Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). 

These principles underscore that in the absence of more compelling or evidence-based rationale, the AOJ's conclusions were legally and factually unsupported. The AOJ's approach is also inconsistent with McLendon v. Nicholson, 20?Vet. App.?79, 81 (2006), which emphasizes that the threshold for obtaining a medical examination or opinion is low and is satisfied where there is evidence of a current disability, evidence of an in?service event or exposure, and an indication that the disability may be associated with service - criteria that were met here, especially in light of the AOJ's own favorable findings. Regardless, at the very least, the AOJ was obligated to consider all avenues of entitlement to service connection for the Veteran's claimed disabilities, which it failed to do in the September 2025 rating decision. Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (VA is required to give a sympathetic reading to the veteran's filings and determine all potential claims raised by the evidence); Wallin v. West, 11 Vet. App. 509, 512 (1998) (VA is required to consider all theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record). 

Under normal circumstances, the confusion created by the AOJ's inconsistent determinations would necessitate a remand to correct its pre-decisional errors. However, the Board finds the July 2025 VA TERA Medical Opinion DBQ completed by A.B., NP, to be competent and probative evidence. The Board acknowledges that A.B.'s positive etiology statement is somewhat brief and does not explicitly discuss other potential sources of the Veteran's carcinomas, which is notable given the AOJ's reasoning that the Veteran's lung involvement represented metastases from pancreatic cancer rather than a primary lung malignancy, and therefore did not qualify. See Rating Decision - Narrative, dated September 8, 2025.

Nevertheless, A.B.'s positive nexus opinion reflects familiarity with the Veteran's medical history, cites relevant medical literature, and demonstrates an understanding of the regulatory framework governing TERA claims. Moreover, A.B.'s rationale was based on the most recent clinical evaluation of the Veteran and, given the Veteran's passing approximately three months later, represents one of the most complete and contemporaneous reviews of the Veteran's relevant medical conditions in the reviewable record. Accordingly, A.B.'s positive etiology opinion is entitled to significant probative weight, particularly in the absence of any medical evidence refuting its conclusions.

Again, the Board acknowledges that it considered whether returning the appeal to the AOJ for further development was warranted to correct the serious pre?decisional duty?to?assist errors described above. Indeed, under 38 C.F.R. § 20.802, the Board ordinarily must remand when such errors exist. However, where the record permits a full grant of benefits and where further development could reasonably be construed as an attempt to obtain evidence adverse to the claim, the Board may resolve reasonable doubt in the claimant's favor. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that VA may not undertake development for the purpose of obtaining negative evidence); see also Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (reaffirming Mariano and emphasizing that VA may not "shop" for a negative medical opinion when the record already contains a favorable opinion that is adequate). Moreover, the Court in Gilbert v. Derwinski, 1?Vet. App.?49, 57 (1990), reaffirmed that when the evidence is in approximate balance, the claimant prevails.

In applying these principles to the present case, the Board notes that the Veteran passed away shortly after A.B.'s in-person VA medical examination and the September 2025 AOJ
 VA may not undertake development for the purpose of obtaining negative evidence); see also Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (reaffirming Mariano and emphasizing that VA may not "shop" for a negative medical opinion when the record already contains a favorable opinion that is adequate). Moreover, the Court in Gilbert v. Derwinski, 1?Vet. App.?49, 57 (1990), reaffirmed that when the evidence is in approximate balance, the claimant prevails.

In applying these principles to the present case, the Board notes that the Veteran passed away shortly after A.B.'s in-person VA medical examination and the September 2025 AOJ rating decision on appeal. Given his passing, the Board is highly skeptical that a new medical opinion would yield any novel analysis or rely on any evidence not already incorporated into A.B.'s contemporaneous review. Moreover, despite the deficiencies in A.B.'s Medical Opinion DBQ described above - particularly in failing to elaborate on whether the Veteran's lung cancer is a disease process of the Veteran's pancreatic cancer as determined by the AOJ - the Board is ultimately persuaded by the language within the four corners of A.B.'s Medical Opinion DBQ that the Veteran's liver, lung, and pancreatic cancers were at least as likely as not attributable to service.

In conclusion, the Board finds that the record contains a competent, favorable medical nexus opinion, conceded in?service herbicide exposure, and no adequate negative medical evidence. Accordingly, the Board determines the evidence at least in approximate balance as to whether the Veteran's liver, lung, and pancreatic cancers were attributable to his active military service. Thus, after resolving reasonable doubt in the appellant's favor, the Board concludes that entitlement to service connection for the Veteran's liver, lung, and pancreatic cancers is warranted. 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Cross, A.

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.