Citation Nr: 19192501 Decision Date: 12/10/19 Archive Date: 12/10/19 DOCKET NO. 16-43 208 DATE: December 10, 2019 REMANDED The issue of service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1964 to August 1966. The appellant is the Veteran’s surviving spouse. The Veteran’s death certificate reflects that the Veteran died in June 1991. The cause of death is listed as a pulmonary embolism due to (or as a consequence of) medullary carcinoma of the thyroid (thyroid cancer). An August 2016 correspondence from Lawrence D. Loehle, M.D., reflects that the Veteran underwent surgery to remove a mass in the Veteran’s thyroid and died a few days after surgery due to a pulmonary embolism that was a consequence of the cancer and the surgery to remove the cancer. The appellant contends that the Veteran’s thyroid cancer was due to exposure to Agent Orange while he was in Vietnam. The RO, in its July 2016 statement of the case conceded that the Veteran served in Vietnam and that he was presumptively exposed to Agent Orange. Although thyroid cancer is not a disability that is presumptively due to Agent Orange, in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board must not only determine whether the Veteran’s disability is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, see 38 C.F.R. § 3.309(e), but also must determine whether the disability is the result of active service under 38 U.S.C. § 1110 and 38 C.F.R. § 3.303(d). To that end, the RO obtained a VA opinion regarding a possible nexus between exposure to Agent Orange and thyroid cancer. An April 2014 opinion was against the appellant’s claim. The examiner stated that medullary carcinoma of the thyroid (MCT) is most strongly associated with familial inherited genetic abnormalities according to the American Cancer Society. She also stated that a review of the medical literature does not reveal any definitive association of MCT with Agent Orange. She stated that Agent Orange is not even listed as a possible risk factor. She stated that she “cannot find legitimate medical literature that definitively shows that Agent Orange causes thyroid cancer.” [Emphasis added]. A similar opinion was offered by another examiner in July 2014. These opinions are inadequate for a few of reasons. First, in order to grant service connection, there does not need to be a “definitive” association of MCT and Agent Orange, or any medical literature that “definitively” shows that Agent Orange causes thyroid cancer. There only needs to be a finding that it is at least as likely as not. Second, Dr. Loehl submitted an August 2016 correspondence in which he stated that the Veteran’s cancer “is a rare but aggressive cancer and was not felt to be familial and at the time the cause of the thyroid cancer was unknown.” He stated that ongoing research into the cause of medullary carcinoma of the thyroid has included the possibility of exposure to Agent Orange. Finally, since the issuance of the April 2014 and July 2014 medical opinions, the appellant has submitted medical articles reflecting that exposure to Agent Orange is associated with the increased prevalence of thyroid cancer. This medical evidence was not discussed by the April 2014 and July 2014 VA examiners. Given the inadequacies of the April 2014 and July 2014 medical opinions, a remand is proper so that a new VA opinion can be obtained. The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s thyroid cancer. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including presumed exposure to Agent Orange. The examiner should note the August 2016 correspondence from Dr. Loehl in which he states that the Veteran’s thyroid cancer was thought NOT to be familial. The examiner should also reconcile his/her findings with the medical articles submitted by the appellant that purport to show that exposure to Agent Orange is associated with an increased prevalence for thyroid cancer. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.