Citation Nr: 21009297 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 13-09 311 DATE: February 22, 2021 REMANDED Entitlement to service connection for colon cancer, for accrued and substitution benefits purposes, is remanded. Entitlement to service connection for cause of the Veteran's death is remanded. Entitlement to service connection for liver cancer, for accrued and substitution benefits purposes, is remanded. Entitlement to service connection for a major depressive disorder, for accrued benefits and substitution purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1962 to May 1965 and from February 1968 to April 1972, including service in the Republic of Vietnam from April 1969 to April 1970. The Veteran passed away in April 2010 and the Appellant is his surviving spouse. These matters come on appeal before the Board of Veterans’ Appeals (Board) from April 2010 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO). The April 2010 rating decision denied service connection for colon, liver cancer and major depressive disorder. The September 2011 rating decision denied service connection for the cause of the Veteran’s death. In May 2017, the RO determined that the appellant met basic eligibility for substitution as the spouse of the Veteran and substituted the appellant as the claimant in the Veteran’s appeals for service connection for colon and liver cancer and major depressive disorder. Accordingly, the appellant has been substituted for the Veteran for purposes of adjudicating those claims to completion. See 38 U.S.C. § 5121A (allowing for substitution in case of death of a claimant who dies on or after October 10, 2008) In June 2017, the Board remanded the Veteran’s claims for additional development. 1. Entitlement to service connection for colon cancer, for accrued and substitution benefits purposes, is remanded. 2. Entitlement to service connection for cause of the Veteran's death is remanded. 3. Entitlement to service connection for liver cancer, for accrued and substitution benefits purposes, is remanded. The Appellant contends that the Veteran’s colon and liver cancers were due to his period of service, to include herbicide exposure. In April 2010, the Veteran's death certificate identifying the only cause of the Veteran's death as colon cancer. Here, the Veteran was diagnosed with colon and liver cancer, and the Veteran's military personnel records confirm that he had service in the Republic of Vietnam during the enumerated statutory time period, and therefore, he is presumed to have been exposed to herbicides. Although colon and liver cancer are not disabilities to be considered for presumption purposes under 38 C.F.R. §§ 3.307(a)(6), 3.309(e), it does not preclude the Appellant from receiving an opinion on whether the colon or liver cancer are directly due to herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As such, the Board finds that a remand is necessary to determine whether there is a nexus between the Veteran's colon and liver cancer, and his period of service, to include exposure to herbicides. 4. Entitlement to service connection for a major depressive disorder, for accrued and substitution benefits purposes, is remanded. The Appellant contends that the Veteran’s psychiatric disorder was due to other disabilities that should be service connected. Here, the Veteran was diagnosed with major depressive disorder, and while multiple VA examiner have opined that the psychiatric disorder did not originate due to his active duty service, a VA physician provided an opinion, in April 2010, stating that the Veteran’s colon cancer impacted his major depressive disorder, as it impacted his mood. The Board notes that resolution of the claim of service connection for colon cancer will have a significant impact on the Appellant's claim for service connection of a psychiatric disorder, therefore, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: Send the Veteran's claims file to an appropriate VA examiner to determine the nature and etiology of the Veteran's colon and liver cancer. The examiner is asked to offer an opinion on the following: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's colon cancer was manifested in, caused by, or is otherwise etiologically related to his period of service, to include his presumed exposure to herbicides. b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's liver cancer was manifested in, caused by, or is otherwise etiologically related to his period of service, to include his presumed exposure to herbicides. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.