Citation Nr: 20028036
Decision Date: 04/22/20	Archive Date: 04/22/20

DOCKET NO. 18-27 101
DATE: April 22, 2020

REMANDED

Entitlement to service connection for the cause of the Veteran’s death is remanded.

REASONS FOR REMAND

The appellant is a surviving spouse of a Veteran who served on active duty from July 1959 to February 1967.  The Veteran died in December 2016.  This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September Department of Veterans Affairs (VA) 2017 rating decision.

Entitlement to service connection for the cause of the Veteran’s death.

It is claimed that the cause of the Veteran’s death was related to his exposure to herbicide agents/Agent Orange in service.  His death certificate lists the immediate cause of his death as colon cancer.  It is not in dispute that he was exposed to herbicide agents in service (as he served in Vietnam).  Accordingly, the critical question is whether his colon cancer was indeed etiologically related to his service, to include as due to his exposure to herbicide agents therein.  As colon cancer is not a disease listed in 38 C.F.R. § 3.309 (e), the presumptive provisions of 38 U.S.C. § 1116 do not apply. Therefore, to substantiate the claim the appellant must affirmatively present medical evidence supporting the asserted theory of entitlement.  In support of the claim, the appellant’s representative has submitted textual evidence pertaining to research regarding a nexus between “Agent Blue” and colon cancer.  See Third Party Correspondence received October 4, 2019.  By itself such evidence lacks sufficient probative value to be adequate and persuasive evidence in the matter.  To acquire such probative value, it must be reviewed by a medical professional and applied to the specifics of the instant claim.  However, together with the evidence showing that the Veteran served in Vietnam, nad was exposed to herbicide agents and had colon cancer, the textual evidence submitted satisfies the low threshold for determining when development for a medical advisory opinion is necessary.     

Accordingly, the matter is REMANDED for the following:

Arrange for the Veteran’s claims file to be forwarded to an appropriate clinician for review and a medical advisory opinion regarding the likely etiology of the colon cancer that caused the Veteran’s death.  Noting the textual evidence (pertaining to research) submitted by the appellant’s representative), the consulting provider should offer an opinion that responds to the following:

Identify the likely etiology for the colon cancer that caused the Veteran’s death.  Specifically, is it at least as likely as not (a 50% or better probability) that it was incurred service, to include as due to his acknowledged exposure to herbicide agents therein?  If not identify the etiology for the colon cancer that is considered to be more likely (and explain why that is so).

The opinion should include a complete explanation of rationale.  Some discussion of the known risk factors for colon cancer (generally, and those shown in the Veteran by the record) would be helpful.  

 

 

GEORGE R. SENYK

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	N. Staskowski, 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.