Citation Nr: 21003105 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-00 897 DATE: January 19, 2021 REMANDED Entitlement to service connection for cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1962 to December 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding is of record. Here, the Veteran’s death certificate shows that he died of colon cancer and liver metastasis. In October 2016, a VA physician noted that the Veteran died of natural progression of his terminal liver and colon cancer and that his hepatocellular cancer was most likely caused from longstanding underlying hepatitis C. In February 2020, the Board remanded the appellant’s claim to obtain a medical opinion regarding whether the Veteran’s cause of death was related to herbicide agent exposure. The February 2020 VA physician reviewed the evidence and opined that it was less likely than not that the exposure to dioxin separately caused colon cancer with liver metastases and the Veteran’s subsequent death. Agent Orange refers specifically to a 50-50 formulation of a. 2,4-D and b. 2,4,5-T (TCDD) which contains a single but most toxic of contaminants known as “dioxins.” The physician stated that dioxin or TCDD cannot be separated from Agent Orange in its formulation used in Vietnam and it is a fixed component of Agent Orange. The physician concluded that Agent Orange has not been found to cause colon cancer in Vietnam veterans. Under the provisions of 38 C.F.R. §§ 3.307(a) and 3.309(e), liver cancer and colon cancer are not listed as diseases subject to presumptive service connection based on exposure to herbicide agents. However, the appellant contends that the cause of the Veteran’s death is related to his exposure to herbicide agents in the Republic of Vietnam. The February 2020 VA physician opined that the Veteran’s colon cancer was not related to exposure to herbicides. The examiner indicated that there was metastasis to the liver, but did not express an opinion concerning liver cancer. The Board recognizes that the death certificate indicated that the Veteran died of colon cancer and liver metastasis – indicating that it was not the primary cancer. In other words, the cancer started in the colon and then spread to the liver. However, the October 2016 VA physician stated that the Veteran had hepatocellular cancer; hepatocellular cancer originates in the liver. Though the physician opined that the hepatocellular cancer was most likely caused from the Veteran’s longstanding underlying hepatitis C, the physician did not address the allegation that its etiology is related to exposure to herbicide agents. Given the discrepancy between the VA medical opinions about the nature of the Veteran’s liver cancer and the certificate of death indicating liver metastasis, the Board finds that another medical opinion is required to determine the nature of the Veteran’s cause of death. Additionally, the examiner’s statements regarding dioxin’s nature and inclusion in herbicide are contrary to law and regulation. First, the herbicides addressed in the regulation include agents other than Orange; a variety of color-coded tactical herbicides, all containing the specified contaminants which are accepted as disease-causing chemicals. The rationale did not discuss how these other chemical formulations applied to the claim. Second, the acknowledgment of the danger of exposure is not limited to dioxin (TCDD), but also include cacodylic acid and picloram. 38 C.F.R. § 3.307(a)(6)(i). The rationale excluded consideration of such. Finally, the regulations specify that it the contaminants, regardless of how they are combined or bonded with other substances in the tactical herbicide formula, which pose the danger. The rationale offered by the examiner, essentially that the dioxin was rendered harmless by the Agent Orange formulation, lacks any credibility, and the opinion therefore cannot be afforded any probative weight. Because the issue must be remanded, the Board also finds that the appellant should be given another opportunity to identify relevant private treatment records as the evidence shows that the Veteran was last treated at a private facility. The matter is REMANDED for the following action: 1. Contact the appellant and request properly executed, separate VA form 21-4142’s, Authorization and Consent to Release Information to the Department of Veterans Affairs, for any private care providers who treated the Veteran. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The appellant should be informed that in the alternative she may obtain and submit the records herself. 2. Thereafter, obtain a VA medical opinion from a suitably qualified clinician, other than the doctor who offered the February 2020 examination regarding the cause of the Veteran’s death. The claims file must be reviewed. The clinician must opine: a) as to whether the diagnosed colon cancer and liver cancers are at least as likely as not caused or aggravated by service, to include established exposure to the known carcinogens (TCDD, cacodylic acid, and picloram) contained in the tactical herbicides used in Vietnam. b) as to whether the Veteran’s hepatocellular cancer at least as likely as not originated in the liver or whether the Veteran had liver metastasis. If the clinician determines that the Veteran had a separate hepatocellular cancer, the clinician must opine whether it is at least as likely as not that hepatocellular cancer was caused by active service, to include exposure to herbicide agents. A full and complete rationale must be provided for any opinion reached. 3. Upon completion of the above, readjudicate the remanded issue. If the issue remains denied, return the matter to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.