Citation Nr: 21074121 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-07 680 DATE: December 14, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in December 2003; the causes of death were listed as metastatic carcinoma of the brain and primary carcinoma of the esophagus, metastatic, contributory factors of death were listed as chronic obstructive pulmonary disease (COPD) and hypertension. 2. At the time of his death, the Veteran was not service connected for any disability. 3. Resolving all doubt in favor of the appellant, the competent evidence is at least relatively evenly balanced as to whether the Veteran's listed contributory cause of death, hypertension, was caused by, or was otherwise related to his active service, to include his presumed herbicide agent exposure. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1948 to October 1969, to include service in the Republic of Vietnam. His awards and decorations for his service include a Combat Action Ribbon and Vietnam Cross of Gallantry among others. Regrettably, the Veteran died in December 2003. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the St. Paul Pension Center RO. In August 2019, the Board issued a decision denying entitlement to service connection for the cause of the Veteran's death. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Memorandum Decision, the Court vacated the Board's August 2019 decision and remanded the case to the Board for action consistent with the Order. Entitlement to Service Connection for the Cause of the Veteran's Death The appellant asserts that service connection for the cause of the Veteran's death is warranted. Specifically, she argues that his hypertension substantially contributed to his death and was as a result of herbicide agent exposure; she also argues that the Veteran's cause of death were as a result of his herbicide agent exposure. Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for the cause of the veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, are not held to have contributed to death when such death is primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). However, service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicide agents for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962 and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agents during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied, including ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicide agents may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As noted above, the Veteran's active duty from April 1948 to October 1969 with verified service in the Republic of Vietnam. He is therefore presumed to have been exposed to herbicide agents in service. The Veteran's death certificate indicates the Veteran died on December [REDACTED], 2003 primarily due to metastatic carcinoma of the brain and esophagus, with contributing causes of COPD and hypertension. See Death Certificate, December [REDACTED], 2003. An April 2019 VA opinion found that it was less likely as not that the Veteran's carcinoma of the esophagus and COPD were etiologically related to his presumed in-service herbicide agent exposure. In that regard, the examiner noted that the current presumptive conditions did not include carcinoma of the esophagus or COPD. Additionally, the April 2019 VA examiner opined that it was less likely than not that the Veteran's hypertension contributed to his death in December 2003 because there was no documented uncontrolled hypertension or complications thereof shown, and hypertension was not known to contribute to or cause metastatic esophageal cancer. Finally, the April 2019 VA examiner opined that it was less likely than not that his esophageal cancer was related to herbicide agent exposure because the Veteran had documented gastroesophageal reflux disease (GERD) and tobacco use, which are known risk factors for developing esophageal cancer. The Board notes that in the August 2019 Board decision, the appellant's claim for entitlement to service connection for the cause of the Veteran's death was denied; and the Board relied on the April 2019 VA opinions. The appellant appealed that decision and the October 2020 Memorandum Decision found that the Board erred when it relied on the April 2019 VA opinions as such opinions failed to adequately discuss whether the Veteran's presumed in-service herbicide agent exposure was etiologically related to his carcinoma of the esophagus, COPD, and hypertension even if they are not presumptive conditions. Additionally, the Court found the April 2019 VA opinion was inadequate as it was rendered by a nurse practitioner, and not a medical doctor as required by the prior Board remand. Accordingly, the Board finds the April 2019 VA opinions inadequate to decide the claim. The opinions are therefore afforded little, if any, probative weight. A June 2021 VA opinion found, in pertinent part, that the Veteran's hypertension was at least as likely as not etiologically related to his in-service herbicide agent exposure. In this regard, the examiner noted the recent finding that there was a positive association observed between the exposure to herbicides and hypertension and indicated that with the finding by the National Academy of Sciences upgrading the association with hypertension to "sufficient evidence of an association between exposure to [herbicides] and hypertension," it was at least as likely as not that his hypertension was etiologically related to his in-service herbicide agent exposure. The Board finds the June 2021 VA etiology opinion, as to the Veteran's hypertension, to be highly probative. This opinion also had clear conclusions and supporting data, as well as reasoned medical explanations connected the Veteran's hypertension to his service. Nieves-Rodriguez v. Peake, supra. This opinion is being afforded great probative weight. There is no contrary probative opinion of record. In sum, the Veteran is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam, had a diagnosis of hypertension. Hypertension is listed as a significant contributing factor as to the Veteran's death in December 2003. See Death Certificate, December [REDACTED], 2003. There is only one probative etiology opinion of record, which is in support of the appellant's claim for entitlement to service connection for the cause of the Veteran's death. Namely, that his hypertension was more likely than not caused by herbicide agent exposure sustained during active service. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Given the evidence discussed above, and with resolution of all reasonable doubt in the appellant's favor of certain elements of the claim, the Board concludes that service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.