Citation Nr: 21014716 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-15 894 DATE: March 15, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The evidence is evenly balanced as to whether the Veteran’s pleomorphic sarcoma is a type of soft-tissue sarcoma that is presumed service connected in veterans exposed to herbicide agents. 2. The evidence is evenly balanced as to whether pleomorphic sarcoma contributed substantially or materially to the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1131, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1969 to December 1970. He died in July 1991. The appellant is his surviving spouse. She filed her application for Dependency and Indemnity Compensation (DIC) in March 2011. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied service connection for cause of death in October 2018. The appellant appealed the October 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). Before the Court issued a decision, the parties filed a joint motion for remand (joint motion). The Court granted the joint motion in February 2020. It vacated the October 2018 Board decision and remanded the issue back to the Board for action consistent with the joint motion instructions. Entitlement to service connection for the cause of the Veteran’s death is granted. In this case, the Veteran was not service connected for any disabilities. He died in July 1991. His death certificate lists the immediate cause of death as sepsis, and for condition leading to the immediate cause of death is listed as metastatic chondrosarcoma. The final diagnosis on the hospital discharge summary prepared at the time of death was metastatic pleomorphic sarcoma. The appellant’s contention is that the Veteran had pleomorphic sarcoma, a soft-tissue sarcoma, contributed materially and substantially to the Veteran’s death. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310(a); 38 C.F.R. § 3.5(a)(1). In order to establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In order to constitute the contributory cause of death, it must be shown that the service connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). In determining whether the disability that resulted in the death of the veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310(a). Those laws and regulations include the following. There is a presumption of exposure to herbicide agents (to include Agent Orange) for all veterans who served in Vietnam. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). In this case, the Veteran served in the Republic of Vietnam during the requisite time frame, and thus was presumed to have been exposed to Agent Orange. In addition, if a veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Soft-tissue sarcomas are listed as one such disease. 38 U.S.C. § 1116(a)(2)(B); 38 C.F.R. § 3.309(e). The regulation specifically excludes chondrosarcomas. See 38 C.F.R. § 3.309(e). The regulation contains a list of diseases that are included within the definition of soft-tissue sarcoma. Pleomorphic sarcomas are neither excluded nor listed. There is no indication that the list of soft-tissue sarcomas is exclusive. The appellant argues that the Veteran was diagnosed with pleomorphic sarcoma as a result of exposure to Agent Orange during service in Vietnam, and that pleomorphic sarcoma metastasized and led to the fatal sepsis documented on the death certificate “by way of” metastatic chondrosarcoma. See May 2012 Notice of Disagreement. Medical evidence in the claims file shows diagnoses of both pleomorphic sarcoma and chondrosarcoma. If pleomorphic sarcoma is a soft-tissue sarcoma and it contributed substantially or materially to death, entitlement to service connection for the cause of the Veteran’s death. There is conflicting evidence on both points. See December 1976 Pathology Report (diagnosis chest wall, pleomorphic sarcoma; comment aggressive interface between neoplasm and normal soft tissue); December 1976 OSU general consultation request (radiographs strongly suggestive of chondrosarcoma), July 1983 OSU Hospital progress note (mass removed, path was pleomorphic sarcoma), July 1983 OSU Hospital diagnostic radiology consultation request (history of pleomorphic sarcoma since 1976), July 1983 OSU Hospitals Div. of Clinical Cytology (history of pleomorphic sarcoma since 1976; chest X-Ray shows…soft tissue nodules in RLL); see also June 1991 Medical Center Hospital letter (referencing a previous diagnosis of “pleomorphic chondrosarcoma”), July 1991 Medical Center Hospital summary (final diagnosis at death: sepsis, metastatic pleomorphic chondrosarcoma). In addition, the appellant submitted evidence from the National Cancer Institute showing that the World Health Organization considers pleomorphic sarcoma to be a soft-tissue sarcoma. A December 2015 VA examiner opined that “chondrosarcoma was less likely as not caused by [the Veteran’s] exposure to herbicides during his service in Vietnam,” reasoning that Agent Orange is “not listed” as a cause of chondrosarcoma by The National Institutes of Health and that “the medical literature does not show an associated risk of developing chondrosarcoma with exposure to Agent Orange. However, as agreed upon by the parties to the February 2020 joint motion, the December 2015 VA medical opinion is not adequate as it did not provide a sufficient analysis in answering whether the Veteran ever had pleomorphic sarcoma. See also May 2012 Notice of Disagreement (contending that the Veteran was diagnosed with pleomorphic sarcoma which metastasized and spread to other parts of his body, leading to fatal sepsis by way of metastatic chondrosarcoma). The Board is left with evidence that the Veteran had a pleomorphic sarcoma, which is a type of soft-tissue cancer, that contributed substantially or materially to death and that he did not have pleomorphic sarcoma, but rather chondrosarcoma which is excluded from the definition of soft-tissue sarcoma in the applicable regulation. Given this conflicting evidence, it must be concluded that the evidence is approximately evenly balanced on these dispositive questions. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that he had pleomorphic sarcoma that is a type of soft-tissue cancer that is presumed service connected in veterans exposed to herbicide agents and that the pleomorphic sarcoma contributed substantially or materially to the Veteran’s death. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for the cause of the Veteran’s death is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.