Citation Nr: 18142572 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-58 732A DATE: October 16, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for the cause of the Veteran’s death is reopened. REMANDED Entitlement to service connection for the cause of the Veteran’s death, to include as due to exposure to herbicide agents and under the provisions of 38 U.S.C. § 1151. FINDING OF FACT An April 2009 rating decision which denied entitlement to service connection for the cause of the Veteran’s death is final; evidence has been received since that decision which relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The April 2009 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for the cause of the Veteran’s death. 38 U.S.C. §§ 1110, 1310, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 3.312, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to October 1968. He died on January [redacted], 2009, and the appellant is his surviving spouse. In an April 2009 rating decision, entitlement to service connection for the Veteran’s cause of death was denied. The claim was denied on the basis that the cause of his death was not shown to be related to service. The appellant did not submit a notice of disagreement with this decision, and it is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since April 2009, additional VA and private treatment records have been submitted which relate to the Veteran’s treatment for colloid carcinoma of the anal canal, deep vein thrombosis, Crohn’s disease, cytopenia, and cirrhosis. Additionally, a VA medical opinion was obtained in October 2016 from a physician addressing the cause of the Veteran’s death. This medical evidence relates to the question of the cause of the Veteran’s death and its relation to his service, and it therefore relates to an unestablished element necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The additional evidence is therefore new and material. The claim of entitlement to service connection for the cause of the Veteran’s death is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND The appellant contends that the Veteran’s cause of death was caused either by exposure to herbicide agents in service or due to VA negligence under the provisions of 38 U.S.C. § 1151. When a veteran dies of a service-connected disability, the veteran’s surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A VA medical opinion was requested in October 2016. The examiner was asked to address whether it was at least as likely as not that the Veteran’s death from anal cancer was caused by negligence on the part of VA due to their failure to timely diagnosis the disorder. The reviewing physician wrote that it was less likely than not that the condition was incurred in or caused by the claimed in-service injury. As rationale, he wrote that colloid carcinoma of anal canal was the cause of death, and the Veteran’s hematology/oncology consults also noted a diagnosis of anal cancer. Unfortunately, the Board finds that this medical opinion is inadequate, as it provides no real response to the question asked, did not address the issue of negligence on VA’s part at all, and provided no rationale for any findings. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA provides an examination, VA has a duty to ensure that the examination is adequate for evaluation purposes even when there was no duty to secure an examination report). Additionally, the appellant has also asserted that the Veteran’s disorders which caused or contributed to his death were caused by exposure to herbicide agents, such as Agent Orange, in service. The Veteran’s personnel records show that he served in the Republic of Vietnam during the Vietnam War, and it is therefore assumed that he was exposed to herbicide agents in service. Certain diseases have been found to be associated with exposure to herbicide agents. This list, however, does not include anal colloid carcinoma, deep vein thrombosis, Crohn’s disease, cytopenia, or cirrhosis. Nevertheless, a non-presumptive disease may still be entitled to service connection on a direct basis if the medical evidence supports a relationship between that disease and exposure to herbicide agents. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A medical opinion should be obtained to address whether the Veteran’s principal or contributory cause of death was as likely as not related to exposure to herbicide agents in service. The Board finds that an adequate medical opinion must be obtained which addresses whether the cause of the Veteran’s death was in any way related to his service, including exposure to herbicide agents in Vietnam, as well as whether the Veteran’s death was caused by failure to timely diagnose rectal/anal cancer or other instance of negligence on VA’s part. Finally, treatment records dating only up to September 2008 are of record, and the record indicates that the Veteran received private medical treatment in the months preceding his death. As these records would be directly relevant to the issue on appeal, the appellant should be requested to provide these records or authorization to obtain these records. The matter is REMANDED for the following action: 1. Send to the appellant and her representative a letter requesting that the appellant provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any additional relevant private medical records, to specifically include those pertaining to treatment at the end of the Veteran’s life, from September 2008 to January 2009. If the appellant provides a completed release form authorizing VA to obtain these treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. 2. Thereafter, obtain a medical opinion from a qualified VA physician. The examiner must be provided access to all files in Virtual VA/Legacy and VBMS. The examiner must specify in the report that these records have been reviewed. The examiner should then address: Is it as likely as not (50 percent or greater probability) that the Veteran’s cause of death was related to any disease or injury in service, including due to his presumed exposure to herbicide agents, such as Agent Orange? The Veteran’s death certificate lists his immediate cause of death as colloid carcinoma or the anal canal, and the contributing conditions were deep vein thrombosis, Crohn’s disease, cytopenia, and cirrhosis. Is it at least as likely as not that the Veteran’s cause of death was due to VA’s failure to timely diagnose or properly treatment his rectal/anal carcinoma? Is it at least as likely as not that the Veteran’s cause of death was due to or was aggravated by, negligence, carelessness, a lack of proper skill, or an error in judgment in the medical care the Veteran received from VA? Did the Veteran’s VA treatment providers fail to exercise the degree of care that would be expected of a reasonable health care provider? A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. No action is required by the appellant until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This particularly includes the submission of well-reasoned medical opinion evidence   linking the cause of the Veteran’s death to service, or to negligence on the part of VA health care providers. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary E. Rude, Counsel