Citation Nr: 20005902 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 18-47 202 DATE: January 23, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran had service in Vietnam, and his exposure to herbicides is thus established. 2. The Veteran died in March 2017. His immediate cause of death was colon cancer, with contributing causes listed as metastases to the liver, lung, bone, and peritoneum. 3. According to the competent evidence of record, the Veteran’s colon cancer was due to herbicide exposure during service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1970 to March 1972. He died in July 2017. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). 1. Entitlement to service connection for the cause of the Veteran's death The appellant, the Veteran’s surviving spouse, seeks service connection for the cause of the Veteran’s death. She asserts that the Veteran’s exposure to Agent Orange during service resulted in his death, and service connection is therefore warranted. Service connection for the cause of a veteran’s death may be granted if a disability incurred in or aggravated by service was either the principal or a contributory cause of the veteran’s death. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially; combined to cause death; or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). 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. As with any claim, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appellant asserts the Veteran’s cause of death, colon cancer, resulted from his herbicide exposure during service. According to the Veteran’s death certificate, he died in March 2017. The immediate cause of death was colon cancer, with contributing causes listed as metastases to the liver, lung, bone, and peritoneum. Additionally, service personnel records confirm the Veteran’s service in Vietnam; as such, his exposure to herbicides is confirmed. 38 U.S.C. § 1116(f). For veterans with confirmed exposure to an herbicide agent during service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied; chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes colitis or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease, multiple myeloma, non-Hodgkin’s lymphoma, acute and subacute peripheral neuropathy, porphyria cutaneous tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchitis, laryngitis or trachea) and soft tissue sarcomas, other than osteosarcoma, chondrosarcoma Kaposi’s sarcoma, or mesothelioma. 38 C.F.R. § 3.309(e). While ischemic heart disease is noted to be a presumptive disorder under 38 C.F.R. § 3.309(e), this term does not include hypertension. 38 C.F.R. § 3.309(e), Note 3. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In support of her claim, the appellant has submitted a May 2019 private medical opinion from M.M.K., M.D. Dr. K. wrote that he had reviewed the Veteran’s claims file in conjunction with rendering the provided opinion. Dr. K. opined, after reviewing the record and the medical literature regarding herbicide exposure, that the Veteran’s colon cancer was the result of his herbicide exposure in Vietnam. Dr. K. also determined that the Veteran’s service-connected diabetes mellitus aggravated the treatment of his colon cancer, hastening his death. In rendering the provided opinions, Dr. K. cited to various medical studies as well as his own expertise. The Board notes that the provided opinion is uncontroverted within the record and was rendered by a competent medical expert after review of both pertinent medical studies and the Veteran’s medical history. Based on the lack of evidence to the contrary and affording the appellant the full benefit of the doubt, the Board finds service connection for the cause of the Veteran’s death is warranted, and the appeal is granted. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.