Citation Nr: 21073596 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 16-44 610 DATE: December 9, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT The preponderance of the evidence fails to show that the Veteran's death from metastatic colon cancer was caused or related to his active military service. CONCLUSION OF LAW The criteria for service connection for service connection for the cause of the Veteran's death have not been met. See 38 U.S.C. §§ 1110, 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 October 1962 to October 1968, to include service in Vietnam. The Veteran died in December 1998. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim in August 2019 and August 2021. Pursuant to 38 U.S.C. § 1310, Dependency and Indemnity Compensation (DIC) benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. See 38 U.S.C. § 1310; Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312 (a). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." See 38 C.F.R. § 3.312 (b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." See 38 C.F.R. § 3.312 (c) (1). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to a herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, 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. See 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The death certificate shows that the Veteran died in December 1998 and the primary/immediate cause of death was metastatic colon cancer. The RO has conceded that he was exposed to herbicide agents. Service connection was in effect for coronary artery disease (CAD) at the time of his death. Service treatment records are negative for complaints, treatment, or diagnosis of colon cancer. There is likewise no evidence that that cancer or any other cancer was diagnosed until many years after service or evidence suggesting a continuity of symptomatology since service. The Appellant does not argue to the contrary. Rather, the Appellant asserts that the Veteran's fatal cancer was caused by his in-service exposure to herbicide agents. Colon cancer is not among the listed presumptive disabilities for herbicide exposure. Thus, presumptive service connection under 38 C.F.R. §§ 3.307 (a) (6) and 3.309 (e) is not applicable to the Appellant's claim. The Board's discussion of the Appellant's claim will focus on a direct theory of entitlement for service connection. See Combee v. Brown, 34 F.3d 1039 (1994). Although, service connection cannot be established on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309, the Veteran is nevertheless presumed to have been exposed to herbicide agents as the RO conceded exposure to herbicide agents. The first element service connection is always satisfied if the current disability is the condition that resulted in the Veteran's death. The Veteran's death certificate recorded his immediate cause of death as metastatic colon cancer. Thus, the first element of service connection is met. Regarding an in-service incident, injury, or illness to which the Veteran's cause of death may be linked, the Appellant asserts that the Veteran's fatal cancer was caused by his in-service exposure to herbicide agents. The RO has conceded that the Veteran was exposed to herbicide agents while in military service. Thus, the second element of service connection is met. Regarding the nexus, there are only negative nexus opinions of record. Of these negative nexus opinions, the September 2021 VA medical opinion is the most probative. The VA medical examiner determined that the Veteran's colon cancer was less likely than not caused by his exposure to herbicide agents. The examiner noted review of the current, widely accepted, peer-reviewed literature which failed to return articles linking Agent Orange as a cause of colon cancer, when corrected for all other risk factors. This included a review of "Up to Date," a respected, professional medical resource wherein one may access current treatises and studies. A cross-referenced search failed to return articles establishing Agent Orange as a cause of colon cancer. There was also no colon cancer while he was in service. Additionally, his CAD predated chemotherapy treatment for colon cancer. With this knowledge, chemotherapeutic agents known to be cytotoxic to the heart would be avoided. Further, there is no plausible mechanism by which Agent Orange could have aggravated his colon cancer. The examiner noted that his colon cancer arose many years post-exposure and remote exposure would not aggravate a condition arising many years post-service. The Board finds that the September 2021 VA medical opinion regarding herbicide exposure to be highly probative, as it was based on a thorough review of the Veteran's claim file and an adequate rationale was provided to support the conclusion. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The medical opinion is afforded substantial probative weight. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). No competent evidence has been offered to the contrary. The Board acknowledges the competent and credible lay statements from the Appellant and others describing his symptomology. See Layno v. Brown, 6 Vet. App. 465 (1994). Nevertheless, lay individuals are not competent to opine on the etiology of a complex medical condition such as colon cancer. Id. Therefore, the lay statements are given little probative weight. Ultimately, after a careful review of the evidence of record, the Board finds that service connection for the cause of the Veteran's death cannot be granted because the evidence does not support a finding that he suffered an in-service injury, illness, or incident, to which his cause of death may be etiologically linked. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.