Citation Nr: 19173836 Decision Date: 09/24/19 Archive Date: 09/23/19 DOCKET NO. 13-10 136 DATE: September 24, 2019 ORDER Vacatur of the March 22, 2019 Board of Veterans’ Appeals (Board) decision is warranted. Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. In a March 2019 decision, the Board denied entitlement to service connection for the cause of the Veteran’s death. 2. A March 2019 Board letter granted the Veteran an extension of a period of 90 days from the date of the March 2019 letter in order for him to submit additional evidence. 3. The Board decision was issued prior to the expiration of the granted 90-day time period. 4. The evidence is in relative equipoise as to whether the Veteran’s colorectal cancer is related to service. CONCLUSIONS OF LAW 1. The criteria for vacatur of the March 22, 2019 Board decision, which denied service connection for the cause of the Veteran’s death have been met. 38 U.S.C. § 7104; 38 C.F.R. § 20.904. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for Entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1131, 1137, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from July 1963 to July 1967 and from July 1968 to December 1984. The Veteran died in February 2009, and the Appellant is his surviving spouse. Vacatur The Board may vacate an appellate decision at any time upon request of the Veteran or his or her representative, or on the Board’s own motion, when a Veteran has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. § 20.904 (2018). Review of the Veteran’s claims file revealed that the March 2019 Board decision was issued prior to the expiration of the granted 90-day extension afforded to the Veteran. Accordingly, the March 22, 2019, Board decision is vacated. Entitlement to service connection for the cause of the Veteran's death. The Appellant contends that the cause of the Veteran’s death is related to active service. She specifically contends that the Veteran’s exposure to Agent Orange and JP-8 jet fuel caused or contributed to rectal cancer, which substantially contributed to the Veteran’s death. The Veteran’s death certificate lists cardiopulmonary arrest, lung cancer, and end-stage renal disease as the causes of death. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. See 38 U.S.C. § 1310; see also 38 C.F.R. § 3.312. A service-connected disability is considered the “principal” cause of death when that disability, “singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.” 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). A contributory cause must be causally connected to the death and must have “contributed substantially or materially” to death, “combined to cause death,” or “aided or lent assistance to the production of death.” Id. To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for specific diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). As the Veteran served in Vietnam during the relevant period, herbicide exposure is conceded. The issue that remains disputed is whether the Veteran’s cause of death was related to exposure to herbicides or JP-4 jet fuel in service. To this end, the evidence is conflicting. A July 2010 VA opinion determined that the Veteran’s lung cancer was secondary to metastatic rectal cancer. Despite cardiopulmonary arrest being listed on the death certificate, a March 2013 VA opinion determined the Veteran did not have ischemic heart disease. An October 2015 VA opinion determined that the Veteran’s rectal cancer is a subset of colon cancer. An April 2017 VA Memorandum of Formal Finding concluded that the Veteran most likely did not have contact with JP-8 jet fuel but certainly came into contact with JP-4 jet fuel. The Memorandum notes that JP-4 jet fuel is classified as a Class 1b Carcinogen, which is presumed to have carcinogenic potential for humans. A December 2013 private opinion from Drs. G.I.G. and B.R. concluded that it was more likely than not that both exposure to Agent Orange and jet fuel during service contributed to the Veteran’s colorectal cancer. Dr. G.G. and Dr. B.R.’s rationale relied on multiple articles, among other sources. The opinion discusses the carcinogenic effects of Agent Orange and jet fuel. The opinion names articles which it reports link Agent Orange and jet fuel to colorectal cancer. Specifically, the opinion uses the Institute of Medicine’s classification of Agent Orange into the category of “Inadequate or Insufficient Evidence to Determine Association” to show there is evidence of biologic plausibility. Additionally, the opinion discusses a study on chromosomal abnormalities in sheep which found that exposure to Agent Orange increased the risk of chromosomal breakage. The opinion reported that this study explained that animal and human cells have a strong qualitative similarity in response to dioxins, which is a byproduct of Agent Orange. A January 2019 VA opinion concluded that the Veteran’s rectal cancer was less likely than not caused by his exposure to Agent Orange and jet fuel. The VA doctor’s opinion relies on research and directly refutes the research presented by the private opinion. The opinion notes that there is no medical evidence that JP-4 jet fuel nor Agent Orange causes or is a risk factor for rectal cancer. The January 2019 opinion acknowledges the December 2013 opinion. Further, it refutes the arguments made in the December 2013 opinion by pointing out that the December 2013 report discusses the association of Agent Orange with cancers of the respiratory system, prostate cancer, lung cancer, and myeloma. Additionally, the December 2013 report comments on the association of petroleum-derived liquids and kidney cancer. The VA doctor also found the abstract to one of the articles referenced in the December 2013 opinion and reported there is no mention of an association between jet fuel and rectal cancer. The January 2019 VA doctor found no research linking Agent Orange and jet fuel to rectal cancer on the International Agency for Research on Cancer website. For these reasons, the rationale provided in the December 2013 cannot be relied upon, as it is based, at least in part, on a study that was misrepresented. The Appellant also submitted a May 2019 medical report from Dr. M.M.K. – a private doctor certified in internal medicine and medical oncology. Dr. M.M.K. opined that it is more likely than not that the Veteran’s herbicide exposure caused or increased his risk for rectal adenocarcinoma. He also opined that it is at least as likely as not that his in-service exposure to jet fuel also caused or increased his risk for adenocarcinoma. Dr. M.M.K. indicated that the Veteran’s cancer was not adequately accounted for by lifestyle or genetic risk factors. Dr. M.M.K. provided a detailed report explaining his position. He cites and explains numerous medical studies that reportedly suggest that it is more likely than not the Agent Orange causes colonic carcinogenesis. He also discusses the chemical components of JP-4 and studies that have examined the impact of JP-4 on colorectal cancer incidence. Based on the studies, Dr. M.M.K. opined that JP-4 and its components contribute to colorectal cancer causation. Dr. M.M.K. further addresses the hazard ratio of the Veteran’s other risk factors for the development of colorectal cancer, to include obesity, alcohol consumption, and cigarette smoking. Dr. M.M.K. asserted that the Veteran’s lifestyle contributions do not negate the Veteran’s service-related hazards. When reviewing conflicting medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). (Continued on the next page)   Here, the January 2019 VA examiner and Dr. M.M.K. are competent to opine as to the relationship between the Veteran’s herbicide and jet fuel exposure and his colorectal cancer. Although the physicians reached different conclusions, both opinions were supported by an adequate rationale that included references to medical literature. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds entitlement to service connection for the cause of the Veteran’s death is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Williams, Associate 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.