Citation Nr: 1739653 Decision Date: 09/15/17 Archive Date: 09/29/17 DOCKET NO. 15-45 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran, who was awarded a Combat Action Ribbon, served on active duty from August 1967 to June 1970. He died in January 2015. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, that denied the above claim. FINDINGS OF FACT 1. The Veteran's pancreatic cancer was etiologically related to service, to include his presumed exposure to Agent Orange. 2. The Veteran died of pancreatic cancer. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death are satisfied. 38 U.S.C.A. §§ 1110 , 1116, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks service connection for the cause of the Veteran's death on the basis that the pancreatic bladder cancer from which he died was linked to his exposure to herbicides during active service. When a veteran dies of a service-connected disability, the Secretary of VA shall pay disability and indemnity compensation (DIC) benefits for the cause of death to the Veteran's surviving spouse, children, and parents. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5 , 3.312. In order to establish service connection for the cause of death, the evidence must show that a service-connected disability was either the principal cause of death or a contributory cause. 38 C.F.R. § 3.312 (a). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c). In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially to the cause of death. Id. Entitlement to DIC benefits for the cause of a veteran's death may be established by showing that a disability for which service connection has already been granted was the principal or a contributory cause of death. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Otherwise, the claimant must first establish service connection for a disability shown to have caused or contributed to the veteran's death. Id. Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C.A §§ 1110 , 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). In addition, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence establishing that he was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to Agent Orange during active military, naval, or air service, certain specified diseases shall be presumptively service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). These diseases, however, must 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) must 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. See 38 C.F.R. § 3.307 (a)(6)(ii). Here, the Veteran died in January 2015. His death certificate lists metastic pancreatic cancer as his cause of death. The Veteran served in Vietnam during the Vietnam era. He, therefore, is entitled to the presumption of exposure to herbicide agents. 38 U.S.C.A. § 1116(f) (West 2014). Even though the Veteran cannot be granted service connection on a presumptive basis because pancreatic cancer is not one of the diseases listed under 38 C.F.R. § 3.309, he can still be granted direct service connection if his pancreatic cancer is etiologically related to his Agent Orange exposure, or any other incident or injury in service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The question presented is whether there is a relationship between the Veteran's fatal pancreatic cancer and his presumed Agent Orange exposure. The relevant evidence includes a November 2015 opinion from Jean Sumner, M.D.; a December 2015 opinion from Robert West, M.D., the Veteran's treating physician; and a March 2017 opinion from Julian Freeman, M.D., all relating the Veteran's pancreatic cancer to his presumed Agent Orange exposure. The opinion from Dr. Freeman is particularly detailed and well-reasoned. There are no negative nexus opinions that contradict this opinion. Therefore, the Board finds that all of the requirements for the grant of service connection for the cause of the Veteran's death have been met and the claim is granted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs