Citation Nr: 21076048 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-34 563 DATE: December 22, 2021 REMANDED Service connection for the cause of the Veteran's death. REASONS FOR REMAND The Veteran served on active duty from October 1961 to July 1964. He died in February 2001. The appellant is his surviving spouse. The case is on appeal from an April 2017 decision. The appellant testified at a Board hearing in August 2021. In an August 2021 decision, the Board reopened the previously denied claim and remanded the claim for further development. Service connection for the cause of the Veteran's death. The Veteran in this case died in February 2001. According to the Certificate of Death, the immediate cause of death was cardiopulmonary arrest due to or as a consequence of esophageal carcinoma. The critical question at issue in this case is whether the Veteran's esophageal carcinoma was due to Agent Orange exposure. There is also a question as to whether he had primary lung cancer. The Board's prior remand directed the RO to obtain an opinion addressing these complex medical questions. In addressing whether the Veteran's esophageal cancer was due to Agent Orange exposure, the Board instructed the examiner to "to disregard whether the disorder is one for which a 'presumption' is established and, instead, to answer whether the medical condition is a result of Agent Orange exposure even though it is not on the list of 'presumptive' diseases." Upon remand, a VA examiner in September 2021 reviewed the case. The examiner opined that the cause of the Veteran's death was less likely than not related to Agent Orange exposure. The examiner, in pertinent part, explained that "[t]he esophageal cancer was not among the VA's Agent Orange presumptive list." The examiner also stated "[i]t's also not known to have Agent Orange as the major risk factor for esophageal cancer or liver metastases." The examiner also found "[n]o document for primary lung cancer or respiratory metastases available." The opinion appears adequate to answer the Board's question concerning whether the Veteran had a primary lung cancer and, if so, whether it caused his death. However, as to Agent Orange exposure and esophageal cancer, this opinion is insufficient. The Board's remand expressly instructed the examiner to disregard whether the condition was on the presumptive list and instead answer whether it was related to Agent Orange exposure notwithstanding its absence from the presumptive list. Contrary to this instruction, the VA examiner materially relied on the fact that it "was not among the VA's Agent Orange presumptive list." It is true that the examiner went on to state that "[i]t's also not known to have Agent Orange as the major risk factor for esophageal cancer or liver metastases." This answer is nonetheless problematic because the Board is not able to understand whether the condition not being a "major risk factor" meant it was not a risk factor at all. To this end, the two interrelated medical questions become whether the Veteran's in-service Agent Orange exposure was a potential risk factor for the disease and, if so, whether it contributed in any way to the development of his current condition. The relative degrees of contribution are irrelevant if the in-service exposure contributed in any way to the development of the current condition. See Cohen v. Brown, 10 Vet. App. 128, 141 (1997) (discussing the "eggshell plaintiff rule" in the context of VA claims). The VA examiner reasoned that Agent Orange was not a "major risk factor." But, the Board is not clear what the use of the qualifying term "major" implies. On the one hand it could mean that Agent Orange exposure was not a potential risk factor at all, even if only a relatively minor one. On the other hand, it could mean that Agent Orange exposure was a potential risk factor but not only a minor one. If so, the VA examiner did not explain why the other risk factors were more likely to be the cause of the cancer with Agent Orange being less likely the cause of the cancer. Otherwise, the examiner's opinion also does not answer whether Agent Orange exposure contributed in causing the condition to any degree. The examiner's statement that it was not a "major risk factor," without further explanation, does not appear to foreclose the possibility that it also contributed to the cancer. ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). To this end, the Board is mindful that the National Academies of Sciences, Engineering, and Medicine, Veteran and Agent Orange: Update 11 (2018), states that no studies "provided additional evidence for a potential association between esophageal cancer overall and exposure to" Agent Orange. See page 237. However, the VA examiner was tasked with researching the current medical literature on this question, and it is not clear this occurred. For these two reasons, the VA examiner's opinion is inadequate. As such, there has not been substantial compliance with the Board's previous remand directives. Another remand is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the cause of the Veteran's death. The examiner is asked to provide a response to the following: (a.) Was a condition causing or contributing to the Veteran death, especially esophageal cancer, at least as likely as not related to in-service exposure to herbicide agents (including Agent Orange)? The examiner is advised that a negative opinion cannot be based solely on the fact that the disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Hence, in answering this question, the examiner is asked to disregard whether the disorder is one for which a "presumption" is established and, instead, to answer whether the medical condition is a result of Agent Orange exposure even though it is not on the list of "presumptive" diseases. The examiner should address whether Agent Orange exposure contributed in any way to the condition leading to his death. In doing so, the examiner should identify and explain whether Agent Orange exposure is a potential risk factor for esophageal cancer. If it is a major or minor risk factor, the examiner must explain why the Veteran's Agent Orange exposure in this case was less likely to have caused or contributed to the esophageal cancer. That is, the examiner should explain why another potential risk factor(s) was more likely to have caused to his death. If the examiner is not able to identify which potential risk factor was more or less likely to have caused his esophageal cancer, the examiner should explain why. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.