Citation Nr: 21021403 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-27 634 DATE: April 12, 2021 REMANDED Entitlement to service connection for the cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to October 1969, including service in the Republic of Vietnam. He died in April 2012 and the appellant is his surviving spouse. This appeal arose before the Board of Veterans’ Appeals from a September 2012 rating decision. This issue was previously before the Board in August 2018 and was remanded for additional development. The requested development has been partially completed; however, the Board finds additional development is necessary before a decision can be made on the merits. Entitlement to service connection for the cause of death is remanded. In this post-remand case, the appellant filed a claim for service connection for the cause of the Veteran’s death. The record reflects that the Veteran’s death certificate lists multiple organ failure, adult respiratory distress syndrome, pneumonia, and esophagogastrectomy (surgery) as the causes of death. Specifically, the appellant contends the Veteran died due to multiple organ failure caused by esophagogastrectomy and that his esophageal cancer was due to his exposure to contaminated ground water at Camp Lejeune or to his exposure to herbicides, to include Agent Orange, in Vietnam. Previously, the RO denied the claim, finding the Veteran’s esophageal cancer was not incurred in or caused by service and not manifested to a compensable degree within one year of discharge from service. The RO also found presumptive service connection was not warranted because the Veteran’s cause of death is not listed among the disabilities presumptively related to herbicide (Agent Orange) exposure or contaminated water at Camp Lejeune. The Court of Appeals for Veterans Claims (Court) has stated, “[t]o permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection.” Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). Consequently, the fact that a disease is not on the list of presumptive diseases does not disqualify a medical professional from nonetheless linking the disease to Agent Orange or to contaminated water at Camp Lejeune. The Board recognizes presumptive service connection is not warranted. In Combee v. Brown, however, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam or to contaminated water at Camp Lejeune, See 38C.F.R. § 3.309(e), but also must determine whether his disability is the result of active service. In November 2019, pursuant to the Board’s August 2018 remand, an opinion regarding the Veteran’s exposure to water contamination was obtained in March 2014 by a medical doctor who is a member of the Subject Matter Expert Panel for the Camp Lejeune Contaminated Water Project. However, the Board finds that in the opinion provided, the VA examiner unduly focused on the length of time the Veteran spent in Vietnam and Camp Lejeune compared to the length of time he smoked cigarettes. With regard to exposure to herbicide exposure and water contamination, no explanation was offered as to why the amount of relative exposure to herbicides and/or contaminated water would be determinative and, in any event, there is no authority offered as to why the length of exposure should be considered in terms of the impact of such exposure and the development of the conditions that caused the Veteran’s death. Therefore, an addendum opinion from a different VA examiner is required. The matters are REMANDED for the following actions: Obtain an addendum opinion from a different, appropriate VA examiner regarding the nature and etiology of the Veteran’s cause of death. In this regard, the examiner should be instructed that he or she should not simply rely on the relative length of time of exposure of herbicide exposure and water contamination compared with the Veteran’s period of cigarette smoking. The entire record is to be reviewed so the examiner may become familiar with the Veteran’s pertinent medical history. After a review of the evidence, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s esophageal cancer is related to or caused by his presumed exposure to herbicides, to include Agent Orange, and contaminated water at Camp Lejeune. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. DeBoer, 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.