Citation Nr: 21073984 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 18-41 848 DATE: December 13, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDING OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era and was therefore presumed to have been exposed to herbicide agents. 2. The Veteran's death certificate lists respiratory failure due to colon cancer, colon cancer, and Agent Orange, as the cause of death. 3. The Veteran's colon cancer was etiologically related to his exposure to herbicide agents during service in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1131, 1310, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to December 1970. The Veteran died in August 2016, and the Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2021 Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. Entitlement to service connection for cause of death. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. To be considered a principal cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to a veteran's death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(b), (c). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Colon cancer is not listed among those disorders for which service connection may be presumptively warranted based upon exposure to certain herbicide agents. Notwithstanding the foregoing, a veteran may still establish service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran's STRs do not indicate any treatment for colon cancer. Post-service treatment records show he was diagnosed with colon cancer. The Veteran died in August 2016. Prior to death, the Veteran was not service connected for any disability. The death certificate recorded the primary cause of death as respiratory failure due to colon cancer, colon cancer, and also listed Agent Orange as a causal factor. The Veteran's personnel records confirm service in the Republic of Vietnam. Accordingly, exposure to herbicides in service is established. The appellant asserts entitlement to service connection for the cause of the Veteran's death on the basis that the cause of his death was related to or had its onset in service. The Veteran's certificate of death reflects that the immediate cause of death was colon cancer, as well as Agent Orange. The appellant asserts that the Veteran was exposed to herbicides while stationed in Vietnam, and that this exposure caused the colon cancer which ultimately caused his death. In February 2017, Dr. A. A-H provided an opinion. Dr. A-H reported treating the Veteran since May 2012, when he was diagnosed with metastatic adenocarcinoma with associated reactive fibrosis. It was explained based on various diagnostic testing, that the Veteran's cancer is highly unlikely hereditary. Research was discussed, that was authored by E.R. Zumwalt, Jr., May 5, 1990. Based on this report, it was determined there is a relationship between exposure to Agent Orange and many health problems and cancers. The report concluded colon cancer is related to herbicide exposure. Dr. A-H referenced scientific evidence that cellular functioning involving dioxin-associated cancers are identical in the Veteran's colon cancer. Dr. A-H., a Board-certified physician in hematology and medical oncology, concluded it is more likely than not that the Veteran's colon cancer was caused by Agent Orange exposure. The Board finds that the preponderance of the evidence supports a finding that the Veteran's colon cancer was related to herbicide exposure during service. Dr. A-H, the Veteran's treating physician, provided an extensive opinion outlining the link between the Veteran's colon cancer and exposure to herbicides. Dr. A-H is competent and credible to provide the opinion and it included a detailed rationale. The Board finds that this opinion is probative, as it is based on a review of the Veteran's service treatment records, as well as the Veteran and appellant's credible statements. As the Board finds that Dr. A-H's report is competent and probative in addressing whether the Veteran's colon cancer is related to service and ultimately his death, and is the only opinion of record, the Board finds the preponderance of the evidence supports a finding that the Veteran's cause of death is related to service. Therefore, entitlement to service connection for cause of death is warranted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.