Citation Nr: 21005401 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-00 718A DATE: February 1, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to Agent Orange during service while stationed in Vietnam. 2. At the time of his death, the Veteran was service connected for 1 disability – posttraumatic stress disorder (PTSD). 3. The Veteran’s immediate cause of death was septic shock with multiorgan failure due to or a consequence of probable intrabdominal sepsis. His underlying cause of death was colon cancer and atrial fibrillation. 4. The Veteran’s death was not related to any service-connected disability, or any disease of service origin. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107(b) 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from September 1965 to September 1967. He died in April 2014. The appellant is his surviving spouse. These matters come before the Board of Veterans Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Board remanded the matter for further development, to include obtaining a medical opinion. The Board finds that there has been substantial compliance with its’ remand directives. Entitlement to service connection for the Veteran's cause of death The appellant contends that she is entitled to service connection for the Veteran’s cause of death because his death was caused by his in-service exposure to herbicides and subsequent development of colon cancer. Specifically, she contends that he developed sepsis as a result of resection surgery for his colon cancer. For the reasons explained below, the Board finds that entitlement to service connection is not warranted. Service connection for the cause of a Veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In determining whether a service-connected disability contributed substantially or materially to death, the evidence must show that it combined to cause death or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Here, the Veteran’s immediate cause of death was septic shock with multiorgan failure due to or a consequence of probable intrabdominal sepsis. His underlying cause of death was colon cancer and atrial fibrillation. At the time of his death, he was not service-connected for any of these disabilities. If a veteran was exposed to Agent Orange during active service, presumptive service connection is warranted for certain specified diseases, including ischemic heart disease. 38 C.F.R. §§ 3.307, 3.309. A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, “unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Here, the Veteran’s DD-214 reflects that he received the Vietnam Campaign and Service medals. Accordingly, he is presumed exposed to Agent Orange. See 38 C.F.R. § 3.307 (a)(6)(iii). However, as will be discussed, there is no competent evidence that the Veteran suffered from a disease which has been presumptively connected to herbicide exposure. The Board notes that on the January 2015 VA Form 9, the appellant stated that the Veteran suffered from “soft-cell carcoma” (sic) of the colon. Although soft-tissue sarcoma is a disease that has been presumptively connected to herbicide exposure, there is no evidence that the Veteran had such a diagnosis. Therefore, presumptive service connection is not warranted under 38 C.F.R. § 3.309 (e). Notwithstanding the foregoing, the appellant may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disorder; (2) an 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 disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In a September 2020 medical opinion, a VA clinician opined that the Veteran’s colon cancer was less likely than not related to service, to include due to conceded herbicide exposure. “The current, widely accepted, peer-reviewed literature has not established Agent Orange/herbicides as a cause of colon cancer.” The Board finds the September 2020 opinion to be probative in nature. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The clinician reviewed the Veteran’s claims folder and specifically addressed the Veteran’s in-service and available post-service medical records. Ultimately, the clinician opined against a finding that the Veteran’s death was caused by a service-connected disability. The Board acknowledges the appellant’s belief that the Veteran’s death was caused by a disability related to service, specifically his colon cancer. However, the appellant is not competent to provide such an opinion. The September 2020 VA clinician specifically opined that the Veteran’s colon cancer was not related to service. Therefore, the Board does not assign any probative value to the appellant’s assertions that the Veteran’s death was related to service. In denying this claim, the Board does not intend to diminish the Veteran’s honorable service to his country. The Board is mindful of his sacrifices, and sincerely sympathizes with the loss sustained by the appellant in his passing. However, for the above reasons, the Board concludes that the preponderance of the evidence is against a finding that a disability incurred in or caused by service caused or contributed substantially or materially to the Veteran’s death. As the preponderance of the evidence is against the claim of service connection for the Veteran’s cause of death, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Baskerville, LaRita 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.