Citation Nr: 21067537 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 13-27 665 DATE: November 4, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1946 to June 1966, to include in the Republic of Vietnam, and was in receipt of a Purple Heart Medal. The Veteran died in September 1987. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was first before the Board in March 2014, at which time the Board found that since the October 1994 final denial new and material evidence had been received to reopen the Appellant's claim. The case has since been subject to multiple actions by the Board and the U.S. Court of Appeals for Veterans Claims. Most recently, in June 2021, the Board remanded the case for additional medical inquiry. The case has now returned to the Board for appellate review. Entitlement to service connection for cause of death is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. In its June 2021 remand, the Board requested an addendum opinion on whether it is at least as likely as not that the liver cancer noted on the Veteran's death certificate related to any of the cancers listed under 38 C.F.R. § 3.309(e). However, the June 2021 VA examiner answered the question regarding 38 C.F.R. § 3.309 in general instead of regarding 38 C.F.R. § 3.309(e). The Board notes that section 3.309(e) lists diseases associated with exposure to certain herbicide agents whereas section 3.309 as a whole encompasses other factual scenarios not relevant to the Veteran's case. Thus, an addendum opinion is needed. Moreover, as phrased, the question posed of whether the cancer listed on the death certificate was related to cancers listed in 38 C.F.R. § 3.309(e) is confusing, as the question to be answered is actually whether the hepatocellular cancer is related to Agent Orange exposure. For reference, pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicide agents used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicide agents and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, "early-onset" peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309(e). Additionally, the National Defense Authorization Act for Fiscal Year 2021 has added three disorders to this list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include parkinsonism, bladder cancer, and hypothyroidism to this list of conditions where statistically significant association exists between exposure to herbicide agents and subsequent development. The Board notes that the VA examiner stated that the renal condition noted contemporaneous to death was not associated with the causes of death listed on the death certificate and that both causes of death listed on the death certificate are frequently fatal even without predisposing etiologies. However, the renal condition need not have caused death or be related to the cancer which resulted in death. Rather, service connection for cause of death can be awarded when a condition merely contributes to death. Specifically, a disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312. Thus, an additional opinion is needed. The matter is REMANDED for the following action: 1. Provide the claims file to the VA examiner who provided the June 2021 opinion, if available. After reviewing the claims file, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hepatocellular carcinoma and/or glomerulonephritis and nephrotic syndrome is etiologically related to his military service, to include his exposure to herbicides (Agent Orange) therein? The examiner should explain the reasons for the conclusion reached. While the examiner is free to cite to medical treatises in rendering the opinion, the examiner's rationale cannot rely solely on the fact that VA has not included these specific conditions in the list of presumptive conditions. In other words, the Board needs an opinion as to the likelihood that this Veteran's hepatocellular carcinoma and/or glomerulonephritis and nephrotic syndrome, without regard to the conditions VA recognizes as being due to Agent Orange, is nevertheless at least as likely as not related to his exposure to herbicide agents in Vietnam. (b) Is the hepatocellular carcinoma a form of soft tissue sarcoma or a form of any other type of cancer listed in 38 C.F.R. § 3.309(e) (non-Hodgkin's lymphoma, Hodgkin's disease, multiple myeloma, prostate cancer, cancers of the lung, bronchus, larynx, trachea, chronic lymphocytic leukemia, AL amyloidosis, B-cell leukemias, such as hairy cell leukemia, and bladder cancer? (c) Is it at least as likely as not that the Veteran's glomerulonephritis and nephrotic syndrome materially contributed to, aided, or lent assistance to the production of death? (d) Please provide a rationale for the conclusions reached. 2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Jesteadt, 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.