Citation Nr: 20054792 Decision Date: 08/19/20 Archive Date: 08/19/20 DOCKET NO. 13-31 916 DATE: August 19, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran died in September 2012; the immediate cause of death was listed as cardiac arrest, with cardiac dysrhythmia, metastatic malignancy of unknown primary, and abdominal ileus listed as contributing factors. 2. At the time of his death, the Veteran was not service-connected for any disabilities. 3. Resolving all reasonable doubt in favor of the appellant, the Veteran’s colon cancer contributed to his death and was related to his presumed exposure to herbicide agents in service. CONCLUSION OF LAW 1. The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1112, 1310, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1965 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal previously was denied by the Board in October 2017. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2019 Order, pursuant to a January 2019 Joint Motion for Remand (JMR), the Court vacated the Board’s October 2017 decision and remanded the claim for action consistent with the terms of the parties’ JMPR. The Board remanded the claim on appeal in June 2015 and June 2019 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2014, the appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. In May 2020, the appellant submitted additional evidence after the supplemental statement of the case in November 2019. Waiver of RO consideration of the additional evidence is presumed given the date of the appellant’s substantive appeal. See 38 U.S.C. § 7105(e). Entitlement to service connection for the cause of the Veteran’s death. The appellant seeks service connection for the Veteran’s cause of death. For the reasons that follow, the Board finds that service connection is not warranted. To establish service connection for the cause of a veteran’s death, the evidence must show that the disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal (primary) cause of death when such 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. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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. 38 C.F.R. § 3.312(c)(1). The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally. 38 U.S.C. § 1310. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include ischemic heart disease and cancer, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Additionally, a veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to certain herbicide agents, to include the commonly referred herbicide agent, Agent Orange, absent affirmative evidence to establish that the veteran was not exposed. See 38 U.S.C. § 1116(f) (2014); 38 C.F.R. §§ 3.307(a)(6)(iii) (2017). The Department of Defense has determined that herbicide agents (including Agent Orange) were used along the Korean DMZ from April 1, 1968, to August 31, 1971; veterans assigned to one of the units listed as being at or near the Korean DMZ during that time period are also presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iv). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. Ischemic heart disease and respiratory cancers are included in the list of enumerated diseases. Turning to the evidence of record, the Veteran’s death certificate listed his immediate cause of death as cardiac arrest, with cardiac dysrhythmia, metastatic malignancy of unknown primary, and abdominal ileus as contributing factors. At the time of the Veteran’s death, he was not service-connected for any disabilities. The Board will consider, however, whether the veteran’s cause of death is in any way related to service. In light of the Veteran’s service in the Republic of Vietnam from July 1967 to April 1968, exposure to herbicide agents is conceded. See August 1968 military personnel record. Additionally, a review of the Veteran’s STRs shows that hypertension was noted in March 1966. An April 1966 STR shows an impression of benign essential hypertension. On his July 1968 Report of Medical Examination at separation, all body systems were noted as normal. The Veteran reported “yes” to experiencing high or low blood pressure on his Report of Medical History completed at separation. The appellant essentially contends that the Veteran died from ischemic heart disease and lung cancer, both of which she avers were related to his presumed herbicide agent exposure as they are considered presumptive diseases under 38 C.F.R. § 3.309(e). See October 2013 substantive appeal; June 2014 hearing transcript. In the alternative, she contends that his metastatic malignancy originated in the colon (i.e. colon cancer) and was caused by his herbicide agent exposure. See May 2020 correspondence. VA treatment records note that the Veteran was seen in August 2012 with a history of fever and a dry cough for the past three weeks. Pneumonia was diagnosed. VA hospitalization records dated in September 2012 indicate that the Veteran was diagnosed with colon cancer with metastasis to the lungs, liver, and spleen. He was admitted to the hospital on September 10, 2012 and died there on September 16, 2012. No autopsy was performed. A VA medical opinion initially was obtained in April 2013. The examiner opined that the Veteran’s lungs were not the primary site of his cancer. The examiner reviewed the relevant evidence of record and explained that the Veteran had metastatic disease which appeared to be from a colon primary, with evidence of high-grade dysplasia on a biopsy report from a right colon mass. The examiner also opined that the Veteran’s cardiac condition less likely than not met the diagnosis for ischemic heart disease. The examiner explained that there was no cardiac disease history given at the time of history. She further noted that ventricular tachycardia develops in the face of significant metabolic abnormalities with advanced metastatic disease. She reported that there was no evidence that the Veteran’s dysrhythmia was related to ischemia from coronary artery disease. Pursuant to the June 2015 remand, another VA opinion was obtained in March 2016. After providing an accurate summary of the Veteran’s medical history, the VA physician opined that it was less likely than not that the Veteran’s hypertension noted in-service was casually related to his death. The examiner explained that the Veteran’s death certificate indicates his immediate cause of death as cardiac arrest and contributing factors of cardiac dysrhythmia, metastatic malignancy of unknown primary, and abdominal ileus. Advanced metastatic disease including metabolic changes of metastatic disease likely led to the Veteran’s cardiac arrest contributed by cardiac dysrhythmia. The physician also noted that while the record in 1966 does show a diagnosis of hypertension and benign essential hypertension, it does not support the diagnosis of ischemic heart disease, and there also is nothing in the record to support the diagnosis of uncontrolled hypertension and also nothing of record to support hypertension related ventricular tachycardia or ventricular fibrillation or asystole. Without the diagnosis of hypertension related ischemic heart disease and without the diagnosis of hypertension related ventricular tachycardia or ventricular fibrillation or asystole, there is nothing of record showing a causal relationship between the hypertension in-service and the Veteran’s cause of death. He further elaborated that with the evidence of record supporting the Veteran’s likely cause of death of advanced metastatic disease, including metabolic changes of metastatic disease leading to cardiac arrest contributed by cardiac dysrhythmia, and the evidence of record not showing a causal relationship between the Veteran’s hypertension in-service and the Veteran’s cause of death, there then is a less than 50 percent likelihood that the Veteran’s hypertension in-service had a causal relationship to the Veteran’s cause of death. The appellant submitted a private opinion by Dr. M.K. in May 2020. Dr. M.K. generally agreed with the conclusions of the April 2013 and March 2016 examiners that the colon was the primary site of the Veteran’s metastatic malignancy, that his cardiac arrest was not due to coronary artery disease, and that his hypertension in service did not contribute to his death. However, Dr. M.K. did opine that it was more likely than not that the Veteran’s colon cancer was caused by his presumed exposure to herbicide agents in service. Dr. M.K. explained that although colon cancer is not recognized officially as linked to herbicide agents, published epidemiology studies suggest that herbicides are linked to colon cancer. He provided results of two studies that indicated those exposed to herbicide agents, including dioxin, were at an increased risk for colon cancer mortality. Dr. M.K. acknowledged that not all studies have found a link between herbicide agents and colon cancer but explained that data on dioxin blood levels suggests that nearly all major epidemiologic studies of herbicides were underpowered to detect common cancers potentially caused by dioxin. He further elaborated that there is laboratory evidence that supports dioxin-based causation of colon cancer. He opined that together, the epidemiology and scientific evidence indicates that it is more likely than not that herbicide agents cause colonic carcinogenesis, and therefore, that herbicide agents caused the Veteran’s colon cancer. Dr. M.K. also noted that in non-familial cases malignant transformation takes place over at least 15 to 20 years. He explained that considering dioxins persist for decades and that cancer takes at least 15 to 20 years to develop, the time frame of the Veteran’s cancer is consistent with service-connected exposure. He concluded that it was expected that the Veteran’s colon cancer would manifest decades after military service. With regards to the Veteran’s specific risk factors, Dr. M.K. explained that alcohol consumption and smoking can increase the risk for colon cancer. However, he noted that the Veteran only was an occasional alcohol consumer prior to his diagnosis and therefore, alcohol did not contribute to his colon cancer. Dr. M.K. acknowledged the Veteran’s history of smoking and that such contributed to his cancer risk, but because the Veteran stopped smoking nearly 40 years prior to his diagnosis and was a light smoker, Dr. M.K. noted that any contribution to an increased risk of colon cancer would have been mild in light of the moderately increased relative risk ratios. He concluded that the Veteran’s lifestyle contributions did not negate the service-conferred risk factors (i.e. herbicide agent exposure). In sum, Dr. M.K. opined that it was more likely than not that the Veteran’s in-service herbicide agent exposure caused or increased his risk for colon cancer. Resolving all reasonable doubt in favor of the appellant, the Board finds that service connection is warranted for the Veteran’s cause of death. The evidence of record shows that neither the Veteran’s primary cause of death nor any contributing factors are conditions presumptively related to his herbicide agent exposure, and his hypertension in service did not cause or contribute to his death. However, the evidence of record does show that the Veteran’s metastatic malignancy that contributed to his death originated in the Veteran’s colon, and Dr. M.K. provided a positive nexus between the Veteran’s colon cancer and his herbicide agent exposure. The opinion was thorough, well-reasoned, and is highly probative. While the April 2013 VA examiner opined that the Veteran’s metastatic malignancy originated in his colon, she did not opine whether the colon cancer was directly related to the Veteran’s herbicide agent exposure. The March 2016 examiner also did not address the issue. Thus, the most competent and probative evidence shows that the Veteran’s colon cancer substantially and materially contributed to his death and that such was related to his presumed exposure to herbicide agents. Accordingly, the Board finds that service connection for the Veteran’s cause of death is warranted; the claim is granted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.