Citation Nr: 21071041 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-51 353 DATE: November 29, 2021 ORDER Entitlement to service connection for cause of the Veteran's death is denied. FINDING OF FACT The preponderance of the evidence does not show that a disability causally related to service, either caused or contributed substantially or materially to the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1137, 1310; 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 from June 1967 to April 1970. The Veteran died in June 2016, and the appellant is their surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in January 2020, when it was remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for cause of the Veteran's death The appellant alleges that the Veteran's cause of death, colon cancer, is related to herbicide exposure while on active-duty service. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal 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. 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 U.S.C. § 1310; 38 C.F.R. § 3.312. A surviving spouse may also demonstrate the disability that caused the Veteran's death should have been service connected. 38 C.F.R. § 3.312. To establish service connection, an appellant must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); 38 C.F.R. § 3.303 (a). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii). The U.S. Court of Appeals for the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase "service in the Republic of Vietnam" includes the 12-nautical-mile territorial waters of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, overturning its prior decision in Haas v. Peake, 525 F.3d 1168 (2008); 38 U.S.C. § 116A(d). For Veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). At the time of their death, the Veteran was service-connected for the following: 1) residuals of a shell fragment wound, right arm; 2) residuals of a shell fragment wound, upper left thigh; 3) ischemic heart disease; and 4) scar, residuals of a shell fragment wound, right buttock. The August 2016 death certificate indicates that the immediate cause of death was colon cancer. The Board notes that colon cancer is not one of the enumerated diseases presumed to be due to herbicide exposure; however, that does not necessarily preclude a grant of service connection. First, the Board finds that there was a current disability at the time of the Veteran's death. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). March 2016 private treatment records (PTRs) indicate stage 4 colorectal cancer. Accordingly, the first element of service connection is met. Second, the Board finds that there is evidence of an in-service event. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's service treatment records (STRs) are silent for complaints of or treatment for colon cancer, including at the Veteran's May 1966 enlistment examination and April 1970 separation examination. However, in statements in May 2016, October 2016, and May 2017, the appellant asserted that the colon cancer was caused by herbicide exposure while the Veteran was in Vietnam. The Veteran's DD-214 notes the receipt of the Vietnam Service Medal and the Vietnam Campaign Medal. Additional military personnel records indicate that the Veteran arrived in the Republic of Vietnam in November 1967 and participated in operations against insurgent communist Viet Cong forces. Accordingly, herbicide exposure is conceded, and the second element of service connection is met. Third, the Board finds that the evidence of record does not support a finding that the colon cancer is related to active service. The January 2020 Board remand instructed the RO to obtain a VA medical opinion regarding whether the colon cancer was incurred in or otherwise related to service. A negative nexus opinion was obtained in April 2020 where the examiner opined that based on a review of the body of evidence and relevant medical literature, and in accordance with accepted medical principles, it is less likely than not that the colon cancer was incurred in or otherwise related to service, including to conceded herbicide exposure while serving in the Republic of Vietnam. The examiner explained that the STRs do not reveal a diagnosis or treatment that which would have at least as likely as not contributed to the Veteran's death. They stated that current medical knowledge has not found a causal relationship between Agent Orange and colon cancer. According to the National Academy of Sciences, there is not sufficient evidence of an association between herbicides used in Vietnam and this condition, and that no study of American Vietnam Veterans found an elevated risk of colorectal cancer. Finally, the examiner noted that the Veteran's treating specialists did not report that Agent Orange caused or contributed to the condition. The Board affords the April 2020 VA medical opinion great probative value as it reflects a thorough review of the record and consideration of the appellant's lay testimony, and is supported by well-reasoned rationale and relevant medical literature. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301 (2008). The Board has also considered the appellant's statements in support of their claim. While they are competent to report on the symptoms, the Board finds the appellant not competent to offer an opinion as to whether the colon cancer is related to any instance of service since the record does not indicate that they possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as such is a complex medical question, the appellant is not competent to offer an opinion as to the etiology of the colon cancer, and, consequently, their opinion on such matters is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board has also considered whether presumptive service connection can be established where there is evidence of continuity of symptomology of a chronic condition since service. See 38 C.F.R. § 3.309. However, the record of evidence does not show a diagnosis until many years following separation from active-duty service. Therefore, consideration based on presumptive service connection for continuity of symptomatology is not warranted. Although the Board is sympathetic to the appellant's claim and acknowledges the years of honorable service the Veteran provided, as there is no other medical opinion or any competent and credible evidence in significant conflict with the VA examiner's opinion, the Board finds that the weight of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.