Citation Nr: 21075701 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-07 640 DATE: December 21, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death, to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Army from August 1969 to August 1971. Unfortunately, the Veteran died in July 2015 and the appellant is his surviving spouse. The Board extends its sincere condolences to the appellant for the loss of her husband and recognizes the valuable service that he provided to this country in the United States Army. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The appellant testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2021. A transcript of that proceeding is associated with the claims file. 1. Entitlement to service connection for the cause of the Veteran's death is remanded The record shows that a VA medical opinion has not yet been obtained concerning the issue of service connection for the cause of the Veteran's death. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the general duty to assist provision, 38 U.S.C. § 5103A (a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C. § 5103A (d), is applicable to claims for service connection for the cause of a veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Such assistance is required whenever a medical opinion is necessary to substantiate the claim, and VA is excused from providing such assistance only when no reasonable possibility exists that such assistance would aid in substantiating the claim. Wood, 520 F.3d at 1348. At the time of the Veteran's death, service connection had only been established for a gunshot wound to his left foot with no residuals. The Veteran's death certificate identifies the immediate cause of death as complications of colon cancer. No underlying or contributory causes of death were documented. The appellant maintains that the Veteran's colon cancer is attributable to his exposure to herbicide agents in Vietnam during service. The appellant also maintains that the Veteran had prostate cancer and liver cancer, which may have also contributed to his death and been caused by his exposure to herbicide agents. The Board notes that prostate cancer is presumptively associated with exposure to herbicide agents under 38 C.F.R. § 3.309 (e). As the record demonstrates that the Veteran served in Vietnam in 1970, exposure to herbicide agents is conceded. With respect to colon cancer and liver cancer, the appellant has cited to two medical articles that suggest herbicide agents are associated with other forms of cancer. The first article was published in 2011 and notes that previous studies have documented the increased risks of several different cancers in those exposed to Agent Orange (AO), an herbicide agent. The second article was published in 2014 and notes that "the mortality from all causes of death was elevated with AO exposure." This article further indicated that "deaths due to all sites of cancers combined and some specific cancers, including cancers of the stomach, small intestine, liver, larynx, lung, bladder and thyroid gland, as well as chronic myeloid leukemia, were positively associated with AO exposure." Treating records demonstrate that the Veteran's colon cancer spread to his liver in 2014. While there is no documentation of prostate cancer in the claims file, the Board notes that there may be outstanding private and VA treatment records. In August 2021, the appellant submitted forms for the AOJ to obtain records from the Kaiser Permanente of Santa Clara, the Menlo Park VA Medical Center, the Palo Alto VA Division Health Care, and the VA Outpatient Clinic of Palo Alto for treatment from January 1995 to July 2015. However, this request was rejected because a death certificate was not provided with it. Given that the Veteran's death certificate is of record, the AOJ should make another attempt to obtain the private records from the Kaiser Permanente of Santa Clara. The Board notes that the claims file includes records for this facility from 2010 to 2015, but there is nothing on record for treatment prior to 2010. The Board should also obtain any outstanding VA records, as any records generated by VA facilities are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Based on the foregoing, remand is necessary in order to obtain outstanding records and a VA medical opinion addressing the issue of service connection for the cause of the Veteran's death. The matters are REMANDED for the following action: 1. The AOJ should attempt to obtain the Veteran's private treatment records from Kaiser Permanente of Santa Clara for the period from 1995 to 2010. 2. The AOJ should also obtain and associate with the Veteran's claims file all outstanding VA treatment records, to include records from Menlo Park VA Medical Center, Palo Alto VA Division Health Care, and VA Outpatient Clinic of Palo Alto from January 1995 to July 2015. If no such records are located, that fact should be documented in the claims file. 3. Once the preceding development has been completed, the AOJ should refer the Veteran's claims folder to a VA examiner for a medical opinion to address the cause of the Veteran's death. The VA examiner is requested to review all pertinent records associated with the claims file, including the service treatment records, post-service medical records, and the appellant's assertions. The examiner should note that the Veteran is presumed to have been exposed to herbicide agents during his service in Vietnam. The examiners should provide an opinion as to the following questions: (a) COLON CANCER (i) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's colon cancer was related to his military service, to include his exposure to herbicide agents therein (notwithstanding the fact that such an association may not be presumed). * The examiner must address the medical literature from 2011 and 2014 cited to by the appellant, which suggests that there is a relationship between herbicide agents and cancers other than prostate cancer. (b) PROSTATE CANCER (i) If the medical record supports a diagnosis of prostate cancer, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's prostate caused his death; contributed substantially or materially to his death; combined with another disorder to cause his death; or, aided or lent assistance to his death. (c) LIVER CANCER (i) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's liver cancer was related to his military service, to include his exposure to herbicide agents therein (notwithstanding the fact that such an association may not be presumed). (ii) If the Veteran's liver cancer was related to his military service, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's prostate caused his death; contributed substantially or materially to his death; combined with another disorder to cause his death; or, aided or lent assistance to his death. * The examiner must address the medical literature from 2011 and 2014 cited to by the appellant, which suggests that there is a relationship between herbicide agents and cancers other than prostate cancer. 4. After ensuring that the opinions comply with the terms of this remand, the AOJ should re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.