Citation Nr: 21014253 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-08 626 DATE: March 11, 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 from January 1951 to February 1975. He died in February 2013. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2019 decision, the Board found that new and material evidence had been received and granted the Appellant’s petition to reopen the previously denied claim of entitlement to service connection for the cause of the Veteran’s death. The reopened claim was then remanded for additional development. Following the requested development, the Board denied the Appellant’s claim in an August 2019 decision. This decision was appealed to the Court of Appeals for Veterans Claims (Court). In a June 2020 Order, pursuant to a Joint Motion for Remand (Joint Motion) filed by the Appellant and the Secretary (parties), the Court vacated and remanded the Board’s decision. The Board subsequently remanded the appeal for additional development to comply with the terms of the Joint Motion. 1. Entitlement to service connection for the cause of the Veteran’s death The Veteran’s death certificate indicates that the immediate cause of his death was cardiopathy. Colon cancer and metastatic disease were listed as conditions that led to his death. The appellant contends that the Veteran’s cardiomyopathy, metastatic lung cancer, and colon cancer were due to his active duty service, including exposure to herbicide agents and/or ionizing radiation exposure. The appellant also claims that the Veteran developed Type II diabetes mellitus as a result of his service and that this disability that caused or contributed to his death. As discussed in the Introduction, the Board denied the Appellant’s claim in April 2019. This decision was appealed to the Court and subject to a Joint Motion. In the Joint Motion, the parties agreed that the Board made two errors. First, the Board failed to explain why it denied the Appellant’s theory that the Veteran’s death was due to tactical herbicide exposure. Specifically, that the availability of presumptive service connection for some conditions based on exposure to tactical herbicide agents does not preclude direct service connection for other conditions based on similar exposure. Here, the “Board denied entitlement to service connection on a presumptive basis without discussing whether the Veteran’s primary cause of death, cardiomyopathy, could be service-connected due to herbicide agents on a direct basis.” The second error identified by the parties involved the Appellant’s argument that the Veteran had type II diabetes mellitus, and consequently “the evidence shows that the cause of [his death] included one of the presumptive disabilities listed among the covered herbicide diseases.” In short, the parties agreed that the Board failed to address the theory that the Veteran’s diabetes contributed to his death and whether the appellant is entitled to presumptive service connection for the cause of the Veteran’s death. Following the Joint Motion, the Board remanded the Veteran’s claim in order to address the errors identified by the parties. A new medical opinion was obtained in November 2020, however the opinion is inadequate for the reasons set forth below. In addressing whether the Veteran’s cardiomyopathy had its onset in service or was otherwise related to any in-service disease, injury or event, including the presumed exposure to tactical herbicides, the examiner stated that “cardiomyopathy is not established [to] be secondary to herbicide exposure.” As drafted, the examiner appears to be stating that this veteran’s cardiomyopathy was not related to his presumed in-service exposure to tactical herbicides because it is not on the presumptive list of diseases associated with such exposure. This is inappropriate. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that it is inappropriate to "permit the denial of direct service connection simply because there is no presumptive service connection."). Instead, an examiner must take into account the Veteran's personal circumstances and how the recognized risk factor(s) apply in his particular case. The examiner also indicated that the Veteran’s treatment records document that the primary cite of the malignancy was the colon which was then metastatic to the liver and lungs. In addressing the etiology of the colon cancer, the examiner stated that herbicide exposure is not a primary established etiology of colon cancer in medical literature. Unlike the cardiomyopathy opinion addressed above, this conclusion was based on “medical literature,” rather than the absence of colon cancer among the list of diseases for which presumptive service connection exists. However, the examiner did not explain how this medical literature related to the Veteran’s particular case. See Nieves Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). Based on the above, the Board finds that an additional medical opinion is necessary. The matter is REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding the following: a) Is it at least as likely as not that (50 percent or greater probability or more) that the Veteran’s diagnosis of cardiomyopathy had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event, including exposure to herbicides? b) Is it at least as likely as not that (50 percent or greater probability or more) that the Veteran’s colon cancer had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event, including exposure to herbicides? In providing the opinions, the examiner must take into account the Veteran’s personal circumstances and how the recognized risk factor(s) apply in his particular case. The examiner may not rely solely on the fact that the Veteran’s disabilities are not on the presumptive list of diseases associated with herbicide exposure. A fully articulated rationale for each opinion requested must be set forth in the medical report. The examiner must discuss the particulars of this Veteran’s medical history and the relevant medical science applicable to this case, which may reasonably make clear the medical guidance in the study of this case. 2. After undertaking any additional development deemed appropriate and giving the Appellant full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Appellant and her representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.