Citation Nr: 20047741 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 07-15 987 DATE: July 16, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran died in June 2003; the certificate of death reflects that the immediate cause of death was colon cancer. 2. The appellant is the Veteran’s surviving spouse. 3. The Veteran was present in the Republic of Vietnam during the Vietnam War Era and is presumed to have been exposed to herbicide agents. 4. The evidence is at least in equipoise as to whether the Veteran’s cause of death is etiologically related to active service. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant’s favor, the criteria to establish service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1113, 1116, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.312 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970, including service in the Republic of Vietnam. Unfortunately, the Veteran died in June 2003 and the appellant is his surviving spouse. This matter has been before the Board on several occasions. In relevant part, the Board denied the claim for service connection for the cause of the Veteran’s death in January 2011. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In January 2012, the Court issued an order granting the parties’ Joint Motion for Remand (JMR) to vacate the Board’s January 2011 decision on this claim and remanded the case to the Board for compliance with the JMR. The Board remanded the claim in December 2012 to ensure compliance with the JMR, and again in August 2015 to fulfill prior remand directives and obtain an additional medical opinion. Thereafter, VA medical opinions addressing the etiology of the Veteran’s colon cancer were obtained in July 2013 and April 2017. In July 2018, the Board again denied the claim, and the appellant appealed this decision to the Court. In a December 2019 decision, the Court set aside the July 2018 Board decision denying service connection and remanded the claim to the Board for readjudication. See Court Memorandum Decision dated December 3, 2019. Pursuant to the Court’s December 2019 Memorandum Decision, the Board sent the appellant and her representative notice that she had 90 days to submit additional argument or evidence in support of her appeal before the Board proceeded with readjudication. See Board letter dated March 19, 2020. The appellant’s representative timely submitted an appeal brief in June 2020. No additional evidence was submitted during the 90-day period, which has expired. The Board is aware of the Court’s decision in Quinn v. Wilkie, 31 Vet. App. 284, 292 (2019), which held that each time a legacy appeal (an appeal adjudicated prior to enactment of the Appeals Modernization Act) is returned to the Board the claimant is entitled to a Board hearing, even if a hearing was held previously. In this case, the appellant appeared at a travel Board hearing in April 2008. To date, the appellant has not requested another hearing. Service Connection for the Cause of the Veteran’s Death Service connection may be granted for the cause of a veteran’s death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran’s death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to constitute a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1); see Lathan v. Brown, 7 Vet. App. 359 (1995). An alternative means of establishing service connection is showing continuity of symptomatology under 38 C.F.R. § 3.303(b), which is available for certain “chronic disease” specifically enumerated under 38 C.F.R. § 3.309(a), including cancers. Here, however, the evidence does not reflect a diagnosis of colon cancer until nearly three decades after the Veteran’s separation from service. Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) are not for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA regulations provide that if a veteran was exposed to an herbicide agent during active service, certain diseases shall be presumed service connected if the certain requirements are satisfied, subject to rebuttal. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. § 3.307(a), (d), 3.309(e). The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the “Vietnam Era,” beginning January 9, 1962 and ending May 7, 1975. A Veteran who had active duty service in the Republic of Vietnam during the “Vietnam Era” 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)(iii). Here, the record confirms the Veteran’s physical presence in the Republic of Vietnam during the Vietnam Era. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis A June 2003 death certificate lists the cause of the Veteran’s death as “carcinoma in colon.” The appellant’s primary assertion is that the Veteran’s colon cancer was caused by his exposure to Agent Orange during service. The Veteran served in Vietnam from December 1968 to December 1969. Thus, he is presumed to have been exposed to an herbicide agent such as Agent Orange during his service in Vietnam. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). However, colon cancer is not a disability presumptively associated with exposure to herbicide agents under 38 C.F.R. § 3.307(e). Taking account of the available evidence and National Academy of Sciences’ analysis, VA’s Secretary has found that the credible evidence against an association between herbicide agent exposure and colorectal cancer outweighs the credible evidence for such an association, therefore a positive association does not exist between exposure to herbicides and colorectal cancer. Thus, a presumption of service connection based on exposure to herbicides to include Agent Orange is not warranted for colon cancer. Therefore, service connection for colon cancer due to a presumption of being related to exposure to herbicide agents is not warranted in this case. 38 C.F.R. § 3.309(e). Nonetheless, service connection may still be established with competent evidence that it was incurred in service, was present during other presumptive periods, or by submitting medical or scientific evidence that it was in fact due to herbicide agent exposure during service. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Turning to the record, the Veteran’s service treatment records are negative for treatment for colon cancer. Although the service records reflect that he complained of abdominal pain following surgery in June 1969 to remove a bullet fragment from his epigastrium, he was negative for other pathology and later discharged to active duty. During his separation examination in April 1970, the Veteran made no complaints about his colon and physical examination revealed no abnormalities. The first post-service evidence of symptoms relating to colon cancer was an April 1997 private medical report where the Veteran was treated for rectal bleeding and borderline anemia. The Veteran underwent a colonoscopy in May 1997 and was found to have a large rectal mass suspected to be adenocarcinoma. The Veteran was first diagnosed with cancer in July 1997. During hearings at the RO in March 2007 and before the Board at a travel board hearing in April 2008, the appellant testified that the Veteran believed that his colon cancer was due to Agent Orange exposure during service. There are conflicting medical opinions in this case as to whether the Veteran’s fatal condition was related to n in-service exposure to herbicide agents. It is the responsibility of the Board to assess the credibility and weight to be given such evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). 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 weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). The Board notes that a July 2013 VA medical opinion, previously determined to be inadequate for adjudication purposes, need not be further discussed here. See Board remand dated August 21, 2015; Board decision dated July 20, 2018. A June 2015 medical opinion co-authored by private physicians M.K., M.D., PhD., and A.W., M.D. cites multiple peer-reviewed medical studies. Based on several the studies, including a study of Korea War veterans exposed to Agent Orange found to have increased incidences of colon cancer, M.K. and A.W. opined that it is as likely as not that the Veteran’s oncologic process initiated during or shortly after his military service, explaining that the development of colorectal cancer takes place over a period of “at least” 15-20 years: “Thus steps that led to [the Veteran’s] cancer propagation must have occurred 15-20 or more years prior to diagnosis. Considering that the cancer takes at least 15-20 years to develop, the time frame for the Veteran’s cancer diagnosis is consistent with a “service-connected exposure.” See Private medical opinion by M.K., M.D. and A.W., M.D. dated June 8, 2015 at pg. 2. Acknowledging research by the Institute of Medicine finding that there is insufficient evidence linking Agent Orange to colon cancer, the physicians considered other peer reviewed epidemiology studies suggesting a medical link between dioxin-based herbicide agents and colon cancer as well as evidence that dioxin persists in the bloodstream for years after exposure. Additionally, the opinion considers the studies in the context of this Veteran’s presumed Agent Orange exposure and the later onset of colon cancer. Therefore, the Board finds the June 2015 private opinion is competent, credible and probative: The opinion was authored by licensed physicians, who reviewed the claims file and were therefore familiar with the Veteran’s symptoms, diagnoses, and treatment of his colon cancer; the opinions is based on a review of the evidence of record as well as relevant medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Accordingly, the Board finds that the June 2015 medical opinion is probative and persuasive medical evidence in this case. An April 2017 VA medical opinion concludes that it is less likely than not that the Veteran’s colon cancer was caused by exposure to Agent Orange during service. The VA examiner acknowledged that the studies cited in the June 2015 opinion suggest a correlation between increased risk of multiple cancers and Agent Orange exposure, including the study of Korea War veterans exposed to Agent Orange, yet the examiner emphasized that the June 2015 opinion broadly construed the Korea veterans study, noting that only 30 of 4,592 veterans exposed during service developed colon cancer. The VA examiner concluded that “it would be erroneous to use these statistics to draw conclusions at this time,” and that there is no evidence showing a “definite relationship between increased risk of colon cancer and Agent Orange exposure.” However, the VA examiner did not explain why the study was not representative of the Veteran’s case or why it would be erroneous to draw such a conclusion in the Veteran’s case. Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner’s conclusion). Notably, the VA examiner asserted that the appellant must demonstrate a “definite relationship” between the Veteran’s colon cancer and herbicide agent exposure during service, which is entirely without merit because this is not a burden of proof that a claimant must meet. Indeed, service connection, at the most, requires only a showing of a preponderance of evidence (“as likely as not”). 38 C.F.R. §§ 3.102, 3.303; see Wise v. Shinseki¸ 26 Vet. App. 517, 531-32 (2014). Owing to these deficiencies, the Board affords the April 2017 VA opinion low probative value. In a February 2018 addendum, private physician M.K., M.D., PhD., adhered to the June 2015 opinion, noting that laboratory research supports the studies cited favorably in that opinion. M.K. emphasized that scientific evidence indicates that it is more likely that not that Agent Orange causes colonic carcinogenesis, and, therefore, it is at least as likely as not that “Agent Orange exposure caused [the Veteran]’s colon cancer and further impaired his ability to resist it,” especially when considering the timing of the Veteran’s diagnosis. He also observed that the April 2017 VA examiner focused only on the Korea War veteran study, while failing to address the remaining studies cited in the June 2015 opinion. The addendum is consistent with the record and applies relevant medical literature to the Veteran’s circumstances. Therefore, the Board finds it competent, credible and probative evidence in this case. See Nieves-Rodriguez, supra. An April 2018 VHA opinion concludes that “it is less likely than not that the Veteran’s colorectal cancer is the result of herbicide exposure . . . in Vietnam. The VHA examiner explained that the strongest and most widely influential assessment of site-specific human cancer risk associated with the Agent Orange compound Tetrachlorodibenezo-p-dioxin (TCCD) is the National Academies of Sciences series “Vietnam Veterans of Exposure to Herbicides” published in 2016, which reflects that there is “insufficient evidence to determine whether there is an association between exposure . . . and colorectal cancer[.]” The VHA examiner generally concluded that the studies cited in the private opinions are not relevant to the appellant’s claim because they do not consider the toxicity of TCCD. While the April 2018 VHA opinion narrowly focused on TCCD, one of multiple chemicals known to be associated with herbicide agents, the examiner did not explain how the study was specifically relevant to this Veteran’s circumstances. See Polovick, supra. Not unmindful of this shortcoming, the Board observes that the VHA opinion was authored by a licensed physician who reviewed the claims file and was therefore familiar with the Veteran’s symptoms, diagnoses, and treatment of his colon cancer; the opinion was based on a review of the evidence of record as well as relevant medical literature. See Nieves-Rodriguez, supra. Accordingly, the Board finds that the April 2018 medical opinion is probative medical evidence in this case. In a June 2018 addendum, private physician M.K. M.D. PhD., reiterated his conclusion reflected in the June 2015 opinion that Agent Orange caused pro-carcinogenic effects in colorectal cancer cells, which decreased the Veteran’s ability to resist the effects of disease. M.K. also renewed his conclusion, based on previously cited medical studies, that it was at least as likely as not that the Veteran’s colorectal cancer was caused by Agent Orange exposure and that Agent Orange further impaired the Veteran’s ability to resist the cancer once he fell ill. Notably, M.K. clarified that it was likely that in-service herbicide agent exposure “was the cause of the [Veteran’s] colon cancer, as opposed to merely aggravating the severity or merely increasing the risk of its occurrence.” M.K. correctly points out that the April 2018 VHA opinion failed to review or cite specifics of the Veteran’s case history, including diagnosis and course of treatment. The addendum is consistent with the record and applies relevant medical literature to the Veteran’s circumstances. Therefore, the Board finds it competent, credible and probative evidence in this case. See Nieves-Rodriguez, supra. The Board finds that the June 2015 private opinion and February 2018 and June 2018 addendums as well as the April 2018 VHA opinion are each sufficiently probative to place the question of service connection for the cause of the Veteran’s death in equipoise. While an additional addendum opinion could be requested, the current evidence is sufficient to decide the claim. A remand could therefore be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 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”); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As indicated, a June 2003 death certificate establishes that the immediate cause of the Veteran’s death was colon cancer. Therefore, the Board resolves any doubt in favor of the appellant and finds that the Veteran’s colon cancer was etiologically related to his exposure to herbicide agents in Vietnam. Accordingly, service connection for the cause of the Veteran’s death is warranted. 38 C.F.R. §§ 3.102, 3.312(c)(1). (Continued on the next page)   Given the Board’s grant of service connection for the cause of the Veteran’s death on a direct basis due to herbicide agent exposure, all other theories of entitlement are rendered moot. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brad Farrell, Associate Attorney 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.