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Court Wins

BVA errs in denying service connection for pancreatic cancer as due to herbicide exposure

Michael Lostritto

March 7, 2018

Updated: November 20, 2023



The Veteran served on active duty in the United States Army from June 1963 to November 1988.  He served in Vietnam from March 1968 to March 1969.  In August 2011, he filed a claim for disability compensation for pancreatic cancer due to Agent Orange exposure.  The Regional Office denied the claim in July 2012, and the Veteran appealed to the Board of Veterans’ Appeals.

In December 2015, the Veteran underwent a VA examination.  The VA oncologist noted that the literature contained within the VAO Update did not report an increased risk of pancreatic cancer among male Vietnam veterans.  The oncologist concluded that the Veteran was at increased risk for pancreatic cancer because of obesity and black race.  The examiner also opined that there is insufficient evidence to conclude that his pancreatic cancer is at least as likely as not related to his service in Vietnam.

Board denies entitlement to service connection for pancreatic cancer

In June 2016, the Board denied entitlement to service connection for pancreatic cancer, to include as due to herbicide exposure in the Republic of Vietnam, and to include as secondary to service-connected hypertension.  The Board found the VA oncologist’s medical opinion highly probative.  It noted that the the oncologist adequately reviewed the evidence and cited to medical literature in support of the opinion.  Based on this exam, the Board found that there was no nexus between pancreatic cancer and service.

CCK appeals to Court, and the Court agrees with CCK’s arguments

The Veteran appealed this denial to the Court of Appeals for Veterans Claims.  Unfortunately, while the case was pending, the Veteran passed away and his widow took over his appeal.  CCK argued that the VA oncologist’s opinion was inadequate.  Specifically, the examiner relied on the fact that the VAO Update does not establish a causal connection between pancreatic cancer and herbicide exposure.  The Court agreed that the examiner’s reference to only the studies reviewed in the VAO Update merely supported VA’s decision not to include pancreatic cancer on the list of presumptively service-connected conditions.  The Court also agreed that the examiner’s general reference to two known risk factors, the veteran’s race and obesity, did not amount to a sufficient analysis to justify his negative nexus opinion.  The examiner did not discuss the likelihood that the risk factors were or were not associated with his cancer.

Accordingly, the Court held that the VA oncologist’s opinion was inadequate, and remanded the case for readjudication.

To read a copy of the Court’s decison, click here. 

About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

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