Citation Nr: 18145538 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-39 725 DATE: October 29, 2018 ORDER Entitlement to service connection for cause of the Veteran’s death is granted. REFERRED The issues of entitlement to service connection for throat cancer, lung cancer, and heart disease were raised in a September 2013 formal claim and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. Adenocarcinoma of the salivary gland involving the right submandibular gland resulted from the Veteran’s in-service exposure to Agent Orange. 2. The Veteran’s salivary gland tumor was the underlying cause of his death and a result of his active military service. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for cause of death have been met. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1964 to March 1968. The appellant in this case is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110. Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by service caused or contributed substantially or materially to cause death. For a service-connected disability to be the 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 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 C.F.R. § 3.312. There are primary causes of death which, by their very nature, are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have had a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ, and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). A review of the record shows that the Veteran passed away in September 2013. According to the Certificate of Death, the immediate cause of the Veteran’s death was respiratory failure and the ultimate underlying cause of his death was salivary gland tumor. At the time of the Veteran’s death, he was not in receipt of service connection for any disability. The evidence shows that the Veteran served in the Republic of Vietnam and his in-service exposure to Agent Orange is presumed. See 38 C.F.R. § 3.307(a)(6)(iii). Post-service treatment records show that the Veteran was diagnosed with adenocarcinoma of the salivary gland involving the right submandibular gland in March 2013. According to the March 2018 medical opinion by Dr. Wurpel, it was as likely as not that the Veteran’s right submandibular gland adenocarcinoma was the result of his in-service exposure to Agent Orange. He further opined that it was at least as likely as not that this cancer caused the Veteran’s death. Dr. Wurpel rendered his opinion after reviewing relevant portions of the Veteran’s claims file, including his service treatment records and post-service treatment records, and pertinent medical literature. Dr. Wurpel provided an extensive analysis and a well-reasoned rationale for his opinion. Based on a careful review of all of the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s adenocarcinoma of the salivary gland involving the right submandibular gland was related to his active service. There is no evidence to the contrary and the Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Accordingly, the Board further finds that service connection for cause of the Veteran’s death due to adenocarcinoma of the salivary gland involving the right submandibular gland is warranted. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ko, Associate Counsel