Citation Nr: 21008704 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-28 347 DATE: February 17, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran passed away in July 2012, and the immediate cause of death was metastatic cancer. 2. The Veteran is presumed to have been exposed to herbicides during service. 3. The Veteran’s metastatic cancer was at least as likely as not related to his exposure to herbicides during service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 101 (24), 1310, 5107(b); 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1969 to October 1987. The Veteran passed away in July 2012, and the appellant is his surviving spouse who qualifies to receive dependent benefits. Initially, the Board expresses its sympathy for the appellant’s loss and recognizes the valuable service that her husband provided to this country in the United States Army. The matter was previously before the Board in March 2019. The appeal was remanded for further development to include obtaining an opinion as to the nature and etiology of the Veteran’s metastatic cancer. A VA medical opinion was associated with the file in January 2020. The Board finds the opinion inadequate. However, in light of the grant of service connection herein, further remand is not required. Entitlement to service connection for cause of death The appellant seeks service connection for the cause of the Veteran’s death based on the assertion that the Veteran’s metastatic cancer, for which the appellant asserts the Veteran should be service connected, led to the Veteran’s death. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. At the time of his death, the Veteran was not service connected for metastatic cancer. However, the Board must consider whether service connection is warranted for any disabilities listed on the death certificate as a cause of death or contributory cause of death. The Veteran’s death certificate lists metastatic cancer, etiology unknown as the immediate cause of death. As such, the Board will consider whether service connection for metastatic cancer is warranted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Regarding service connection due to herbicide agent exposure, VA laws and regulations provide that if a veteran was exposed to certain herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant contends that the Veteran’s metastatic cancer was caused by his exposure to herbicide agents in service. The Veteran was diagnosed with metastatic cancer in April 2012, thus meeting the first element of service connection. The Veteran’s service personnel records indicate that the Veteran served in the Republic of Vietnam. Therefore, exposure to herbicide agents is presumed. 38 C.F.R. § 3.307 (1)(6)(iii). As discussed above, 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision regarding herbicide agent exposure. The list includes certain cancers including prostate cancer and respiratory cancers of the lung, bronchus, larynx or trachea. Although the July 2012 death certificate notes that the etiology of the Veteran’s metastatic cancer was unknown, in July 2015, the Veteran’s treating oncologist provided a letter clarifying that while the primary site could not be localized, the possible primary sites included the lungs, GI tract and prostate. As noted above, prostate cancer and lung cancer are specifically enumerated in 38 C.F.R. § 3.309(e). However, because it is unclear whether the Veteran’s cancer originated in either area, a nexus between herbicide agent exposure and the Veteran’s cancer cannot be presumed. 38 C.F.R. §§ 3.307, 3.309. Nonetheless, service connection for metastatic cancer is established on a direct basis. As mentioned, a current diagnosis is established. The Veteran has presumed exposure to herbicide agents as an in-service incurrence for his metastatic cancer. The remaining issue is a nexus between the Veteran’s cause of death, his cancer, and his exposure to herbicides in service. In January 2020, a VA examiner opined that it was impossible to state whether the Veteran’s cancer was due to Agent Orange/herbicide exposure in Vietnam because “we do not know and never will probably know the type of cancer that actually led to the Veteran’s metastatic disease and ultimate demise.” Of significance to the Board is that this rationale reveals the examiner employed a higher standard than the requisite “more likely than not” standard. The Board acknowledges that the Veteran’s oncologist was unable to definitively determine the primary site of the Veteran’s cancer. Nevertheless, the oncologist was able to limit the possible sites to the lungs, GI tract and prostate. Further, there is no evidence suggesting alternative primary sites for the Veteran’s cancer. The Board notes that of the three possible primary sites, the lungs and prostate are etiologically linked to exposure to herbicide agents. Moreover, the January 2020 VA examiner did not negate the oncologist’s findings. Accordingly, given that two of the three primary sites of the cancer are related to herbicide exposure, and one is not, the Board finds that the evidence is in equipoise as to whether or not the Veteran’s cancer is related to his herbicide exposure. Thus, resolving all reasonable doubt in favor of the Veteran, it is at least as likely as not that the Veteran’s metastatic cancer which caused his death was etiologically linked to his in-service exposure to herbicide agents. Accordingly, the Board finds that service connection for the cause of the Veteran’s death is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.