Citation Nr: 18146528 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 13-21 671A DATE: October 31, 2018 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran’s death certificate reflects that he died in March 2012 and lists the principal cause of death as invasive moderately differentiated adenocarcinoma of the sigmoid colon due to (or as a consequence of) bone and lumbar spine metastasis due to (or as a consequence of) small bowel obstruction. 2. At the time of his death, service connection had been established for right knee chondromalacia and osteoarthritis; ganglion cyst of the left wrist; and, scar of the right knee status post meniscectomy. The combined service-connected disability rating was 40 percent. 3. The cause of the Veteran’s death was not shown in service or for many years thereafter, and the most probative evidence indicates the Veteran’s death is unrelated to service or any event of service. 4. The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities caused or contributed substantially or materially to cause his death. CONCLUSION OF LAW The requirements to establish service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1967 to March 1970 and from April 1971 to April 1974, which included service in the Republic of Vietnam (Vietnam). He died in March 2012 and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant’s claim for service connection for the cause of the Veteran’s death. In May 2015, the Board denied the appellant’s claim. The appellant then appealed the May 2015 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2016 Memorandum Decision, the Court vacated and remanded the Board’s May 2015 decision. The Court essentially concluded that the Board provided an inadequate statement of reasons and bases and agreed with the appellant’s argument that the Board failed to address whether there was a reasonable possibility that a medical opinion would substantiate a nexus between the Veteran’s colon cancer and his presumptive exposure to Agent Orange in Vietnam. See November 2016 Memorandum Decision. Following the November 2016 Memorandum Decision, the Board obtained a medical opinion from a Veterans Health Administration (VHA) specialist in October 2017. 1. Entitlement to service connection for the cause of the Veteran’s death. The appellant seeks to establish service connection for the cause of the Veteran’s death. The Veteran’s death certificate states that he died in March 2012 and that the immediate cause of death was invasive moderately differentiated adenocarcinoma of the sigmoid colon due to (or as a consequence of) bone and lumbar spine metastasis due to (or as a consequence of) small bowel obstruction. At the time of his death, service connection had been established for right knee chondromalacia and osteoarthritis; ganglion cyst of the left wrist; and, scar of the right knee status post meniscectomy. The combined disability rating was 40 percent. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Regulations provide that 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). Malignant (i.e., cancerous) tumors will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Also, a veteran who, during active military, naval, or air service, served in Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, including 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). In this case, the Veteran has documented service in Vietnam during the applicable period, i.e., Vietnam era, and therefore it is presumed he was exposed to Agent Orange. 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). This list of diseases includes: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II Diabetes Mellitus (adult-onset diabetes), Hodgkin’s disease, non-Hodgkin’s lymphoma, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, Parkinson’s disease, “early onset” peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2014); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). See, too, Diseases Not Associated With Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630 (May 20, 2003); see also Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 FR 32395-01 (June 12, 2007). Notwithstanding the foregoing, the Board notes that the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude the appellant from establishing entitlement to service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In fact, the Court has specifically held that the provisions set forth in Combee, which, instead, concerned exposure to radiation, are nonetheless applicable in cases, as here, involving exposure to Agent Orange. McCartt v. West, 12 Vet. App. 164, 167 (1999). 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 active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c)(1). In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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. Id. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category, there would be included service-connected diseases or injuries of any evaluation (even 100 percent evaluations) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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, 53 (1990). Here, the appellant argues that the Veteran’s principal cause of death—invasive moderately differentiated adenocarcinoma of the sigmoid colon—is the result of his military service. As acknowledged previously, it is presumed that the Veteran’s service involved exposure to toxic herbicides (including, specifically, the dioxin in Agent Orange) because he served in Vietnam. Unfortunately, the Veteran died from colon cancer which, as already explained, the Secretary of VA has determined there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630 -27641 (2003). Nevertheless, as also explained, this does not preclude the appellant from establishing entitlement to service connection for the cause of death based on the Veteran’s presumed exposure to Agent Orange in Vietnam with sufficient proof of actual direct causation linking his terminal cancer to his military service. In October 2017, a VHA specialist—an oncologist—provided a negative opinion as to the etiology of the cause of the Veteran’s death. First, the specialist addressed the likelihood that colon cancer had its onset during either the first or second period of the Veteran’s active service, or within one year of his separation from either period of active service. It was explained that colon cancer typically develops from slowly growing polyps that eventually will become malignant, the Veteran was approximately 55 at the time of diagnosis of metastatic colon cancer, and thus, it is highly unlikely that colon polyps or indeed colon cancer would have existed 30 years prior to diagnosis. Second, the specialist addressed whether colon cancer was caused or aggravated by his presumed exposure to herbicide agents during service. The specialist explained that there is no known association of colon cancer with Agent Orange exposure according to the National Academy of Science review of the exposure data and there is no reason to posit that development of colon cancer was secondary to exposure. Notably, the specialist also noted that the one example of colon cancer cited by the appellant in the appeal is in tissue cultured colon cells, which is an artificial environment that does not represent exposure that occurs in vivo, and concluded that it is highly unlikely that the colon cancer or any of the three other malignancies (identified as skin, bladder, and kidney cancers) would have been associated with exposure experienced while the Veteran was in Vietnam. Lastly, the specialist opined that there is no data to suggest that any of the Veteran’s service-connected orthopedic disabilities could have caused or exacerbated the course of the colon cancer that caused his death and the skeletal and other metastasis had nothing to do with the orthopedic disabilities. The Board has reviewed the medical abstract “Src-mediated aryl hydrocarbon and epidermal growth factor receptor cross talk stimulates colon cancer cell proliferation” that was submitted by the appellant in May 2017. After weighing the evidence, the Board finds the October 2017 VHA medical opinion is more probative than the abstract with regard to the present appeal because the October 2017 opinion includes comprehensive explanations and rationale within the context of the Veteran’s specific medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning, and neither an examination report nor a medical opinion are entitled to any weight if it contains only data and conclusions). The Board affords little probative value to the abstract, as it fails to consider the specific facts of the case and does not show with any reasonable certainty that the Veteran’s herbicide exposure caused or aggravated his colon cancer. Overall, considering the foregoing, the Board finds that service connection for the cause of the Veteran’s death has not been established. The competent evidence of record does not indicate that he suffered from colon cancer or any relevant symptoms commonly associated with colon cancer during service or within one year of his discharge from either period of service. In addition, there is no indication that the Veteran’s service-connected orthopedic disorders pertaining to his left wrist and right knee contributed to his death. See also June 2013 VA physician medical opinion (concluding that it is less likely than not that the Veteran’s death was related to service in that a disability of service origin caused or materially contributed to his death). The appellant’s contentions as to the Veteran’s cause of death, based upon her own beliefs and her familiarity with his medical history, have been considered. However, the matter at hand involves complex medical assessments that requires medical expertise. The record does not show that the appellant has received the requisite formal medical training and accreditation necessary to make medical diagnoses or present opinions regarding complex medical issues. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Overall, the colon cancer that caused the Veteran’s death was not shown in service or within a year of service, the competent evidence fails to show that his exposure to herbicide agents caused this condition, and the preponderance of the evidence is against finding that the any of Veteran’s service-connected disabilities caused or materially contributed to his death. Thus, service connection for the cause of death must be denied. In reaching this determination, the Board does not wish in any way to diminish the Veteran’s military service. Although the Board is sympathetic to the appellant, because the preponderance of the evidence is against service connection for the cause of the Veteran’s death, the Board it is without authority to grant this claim on   an equitable basis. See 38 U.S.C. § 7104 (2012); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Wilson, Counsel