Citation Nr: 18148801 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 14-34 462A DATE: November 8, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran died in October 2012 and his death certificate lists the immediate cause of death as sigmoid colon adenocarcinoma (colon cancer), due to or as a consequence of agent orange herbicide exposure. 2. The Veteran is presumed to have been exposed to an herbicide agent during active military service in the Republic of Vietnam. 3. The Veteran was granted service connection for prostate cancer, which had been attributed to his presumed in-service exposure to an herbicide agent. 4. The evidence is at least evenly balanced as to whether the colon cancer that caused the Veteran’s death is related to his presumed in-service exposure to an herbicide agent or his service-connected prostate cancer. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1116, 1310, 5107; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1966 to April 1986, with service in the Republic of Vietnam. Decorations include the Purple Heart and Bronze Star Medals. He died in October 2012 and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to service connection for the cause of the Veteran’s death. Entitlement to service connection for the cause the Veteran’s death. Pursuant to 38 U.S.C. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C§§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). In a DIC claim based on cause of death, the first requirement for service connection, evidence of a current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). In this case, the Veteran’s death certificate lists the immediate cause of death as colon cancer, due to or as a consequence of agent orange herbicide exposure. The appellant contends that the Veteran’s colon cancer was due to his in-service exposure to an herbicide agent and/or the Veteran’s service-connected prostate cancer. Here, in-service exposure to an herbicide agent is conceded as the Veteran’s service records indicate that he served in the Republic of Vietnam. See 38 U.S.C. § 1116 (f). Additionally, it is undisputed that the Veteran was in receipt of service connection for prostate cancer and that his death certificate identifies colon cancer as the immediate cause of his death. Consequently, the issue at hand is whether the colon cancer that caused the Veteran’s death was related to his in-service herbicide agent exposure or his service-connected prostate cancer. Prior to the Veteran’s death, he was afforded a VA examination in August 2012. In August 2012, a VA examiner opined that it is less likely as not that the Veteran’s prostate cancer caused his colon cancer. The examiner reasoned that there are “no records of colon cancer being related to his prostate cancer at all,” and that PSA levels and biopsy results taken at the time of the colon cancer diagnosis do not evince a relationship between the Veteran’s prostate and colon cancers. In the October 2012 certificate of death, the physician indicated that the Veteran’s colon cancer was due to exposure to an herbicide agent. In a July 2013 letter, the Veteran’s private treating physician, who indicated that he was the Veteran’s family physician from 2010 to 2012) opined that the Veteran’s colon cancer is likely related to his prostate cancer. The favorable July 2013 opinion that the Veteran’s colon cancer is likely due to his service-connected prostate cancer undermines the rationale of the August 2012 VA examiner’s unfavorable opinion, thereby diminishing the probative value of the August 2012 opinion. The examiner’s statement that there were “no records of colon cancer being related to his prostate cancer at all,” is contradicted by the July 2013 opinion that indicates precisely that relationship. Moreover, the August 2012 VA opinion fails to address whether the Veteran’s service-connected prostate cancer aggravated his colon cancer as well as whether the Veteran’s colon cancer was related to his presumed in-service exposure to an herbicide agent. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (noting that VA examiners must consider all raised theories of entitlement). Overall, the August 2012 opinion carries minimal probative value, particularly in light of favorable medical evidence received after the opinion was rendered. At this point, given that there is sufficient evidence as discussed below to grant the claim, further development is not necessary to obtain another medical opinion. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”). In this regard, while the favorable July 2013 medical opinion does not provide extensive rationale, reading the opinion as a whole and in context of the evidence of record, to include the physician’s familiarity with the Veteran’s then current colon cancer and prior medical history, this positive opinion carries some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Similarly, despite the apparent lack of rationale supporting the October 2012 physician’s opinion that the Veteran’s colon cancer was due to in-service herbicide agent exposure, the opinion bears additional probative value as it was rendered by a physician in consideration of the Veteran’s entire medical history. Additionally, the October 2012 certificate of death represents the only competent medical evidence regarding whether the Veteran’s colon cancer was related to his presumed in-service exposure to an herbicide agent. (Continued on the next page)   For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s colon cancer was related to in-service exposure to an herbicide agent or his service-connected prostate cancer. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel