Citation Nr: 21012898 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-36 598 DATE: March 5, 2021 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1965 to September 1969. He passed away in September 2014. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter last appeared before the Board in June 2019 at which time the issue was remanded to conduct additional development. For the reasons noted below, the Board finds that remand is again warranted. Entitlement to service connection for the cause of the Veteran’s death is remanded. The appellant contends that the Veteran’s death was a result of exposure to herbicide Agent Orange in service and that his liver cancer and metastatic gastric cancer are both on the presumptive list for herbicide Agent Orange exposure. First, the Board notes that cancer of the gall bladder and primary liver cancer are both enumerated on the presumptive list for diseases specific to radiation-exposed veterans. 38 C.F.R. § 3.309(d). Bladder cancer is now on the list of diseases associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e); National Defense Authorization Act (NDAA) for Fiscal Year 2021. Liver cancer and bladder cancer are both enumerated on the list of diseases associated with exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.309(f). However, neither liver cancer nor gastric cancer is enumerated on the list of diseases associated with exposure to certain herbicide agents pursuant to 38 C.F.R. § 3.309(e). Second, the Board notes that in the June 2019 remand, the Board directed the RO to obtain outstanding treatment records. In December 2019, the RO sent the appellant an authorization release form for the outstanding medical records. However, in January 2020, the appellant filed a change of address. In May 2020, the RO mailed the appellant a May 2020 Supplemental Statement of the case (SSOC), which was returned as undeliverable. Although a June 2020 SSOC was mailed to the appellant at the updated address, the record does not reflect that the release forms were provided to the updated address. Thus, the Board finds that an additional opportunity should be extended to the appellant to submit any necessary medical records. Stegall v. West, 11 Vet. App. 268, 271 (1998). Lastly, the Board notes during the Veteran’s lifetime, service connection was established for type II diabetes mellitus with erectile dysfunction, bilateral hearing loss, bilateral tinnitus, and peripheral neuropathy of the right and left lower extremity associated with type II diabetes mellitus with erectile dysfunction. A review of the record reflects that the cause of death listed on the Veteran’s death certificate recorded an immediate cause of death of liver failure with an onset to death of an approximate interval of four weeks, due to, or as a consequence of metastatic gastric cancer, with an onset of an approximate interval of eight weeks. No other significant conditions contributing to the cause of death but not resulting in the underlying cause are recorded on the death certificate. In a claim where service connection was not established for the fatal disability prior to the death of the Veteran, the initial inquiry is to determine whether the fatal disorder had been incurred in or aggravated by service. 38 C.F.R. § 3.312. Based on the evidence of record, the Veteran filed a claim for entitlement to service connection for liver cancer, stomach cancer and cancer of the scalp in September 2014. In October 2014, private doctor, Dr. N.H., speculated as to whether there was a contributory cause of diabetes mellitus type II in the Veteran’s death. Then, in January 2020, Dr. N.H. opined that it is at least likely than not that the Veteran’s diabetes mellitus type II was a significantly contributing factor to his death. Dr. N.H. rationalized that the Veteran served in Vietnam, was presumptively granted service connection for diabetes due to exposure to herbicide Agent Orange, and the record reflects a particularly worsening health condition within generally the last number of years, as such he believes that there is a nexus between the carcinogenic effects of the herbicide Agent Orange and the Veteran’s cancer. He concluded that all health care is inextricably intertwined, and diabetes and cancer all played a significantly contributing role in the Veteran’s death. Dr. N.H. remarked that with the benefit of having the Veteran’s history, there is a clear etiological basis to conclude a connection of the Veteran’s diabetes and cause of death. However, in April 2020, a VA medical examiner opined that the Veteran’s diabetes mellitus less likely than not contributed substantially or materially to his death. The examiner rationalized that the gastric cancer was the main cause and if he had not succumbed to his cancer/complications, then it is likely he would still be alive based on the records as diabetes mellitus was stable and did not result in debilitating effects and general impairment of health. The examiner further remarked that in regard to Dr. N.H.’s letters, that such are generalized statements, the Veteran’s diseases are not inextricably combined and can easily be separated out of which the clinical medical records support separation of disease entities. The examiner further remarked that it is difficult to see what the clear etiological basis to conclude a connection of the Veteran’s diabetes mellitus type II and his cause of death are because the cause of death was clearly gastric cancer. Essentially, the question before the Board is whether the Veteran’s liver failure due to metastatic gastric cancer should have been service connected, whether directly connected to service as due to exposure to herbicide Agent Orange, or on a secondary theory basis, as due to diabetes mellitus type II. Thus, although Dr. N.H.’s January 2020 opinion indicates that diabetes mellitus type II contributed to the Veteran’s cause of death, diabetes mellitus is not recorded as the immediate cause or contributory cause of death. Moreover, the private opinion does not answer whether the Veteran’s immediate cause of death should be service connected, is rebutted by the April 2020 VA opinion, and more importantly, does not provide a clear reasoning as to why diabetes mellitus type II was a contributing factor of the Veteran’s cause of death in light of the death certificate not recording it as such. Dr. N.H.’s January 2020 private opinion eludes the discussion of the immediate cause of death, and merely concludes that because the Veteran was service connected for diabetes mellitus, and all diseases are inextricably intertwined, diabetes contributed to his death. The Board must be able to conclude a medical examiner applied reasoned medical analysis in formulating an opinion because it is the factually accurate, fully articulated, sound reasoning for the conclusion, that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the private opinion is inadequate. Although the April 2020 VA examiner opined as to whether the Veteran’s service connected diabetes mellitus contributed to his death, an opinion as to whether the Veteran’s immediate cause of death, liver failure due to metastatic gastric cancer, is related to his military service (to include as due to exposure to herbicide Agent Orange) is not of record. VA’s duty to assist the appellant by obtaining such opinion has been triggered. The matters are REMANDED for the following action: 1. Request the appellant identify any outstanding treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the appellant, all outstanding records should be obtained, including records from Good Samaritan Health Systems. 2. After the above development is complete, request that a physician with sufficient expertise review the claims file and provide an opinion as to the following: Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s liver failure due to metastatic gastric cancer/liver cancer/stomach cancer was proximately due to his service, to include as due to his exposure to herbicide Agent Orange in Vietnam? The examiner is reminded that the Veteran’s in-service exposure to herbicide Agent Orange is conceded. The examiner is asked to reconcile any conflicting opinions of record. A complete rationale for all opinions is required. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.