Citation Nr: 21026865 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-24 425 DATE: May 4, 2021 ORDER Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in August 2016; his death certificate lists the immediate cause of his death as cardiopulmonary arrest due to or as a consequence of likely pneumonia and stage IV gastric carcinoma. 2. The Veteran served in Vietnam and is presumed to have been exposed to herbicide agents. 3. The competent medical evidence demonstrates that it is at least as likely as not that the Veteran's gastric cancer was related to his presumed in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for an award of service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from April 1968 to March 1970, to include service in Vietnam. His decorations include the National Defense Service Medal, the Vietnam Service Medal, and the Parachute Badge. Unfortunately, he died in August 2016. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin. The PMC, in pertinent part, denied service connection for the cause of the Veteran's death. In a June 2019 decision, the Board denied the appeal. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the appellant, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matter for further action and readjudication. Service connection for the cause of the Veteran's death The appellant contends that the Veteran's gastric cancer was the result of his in-service exposure to herbicide agents in Vietnam, and that the cancer led to his death. Alternatively, she contends that the Veteran's service-connected heart disability was of such severity as to have been a contributory cause of death. To establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. Service connection for the cause of a veteran's death may be demonstrated by showing that a veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection could have been established. Generally, in order to prove service connection for a disability, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). However, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established on a direct incurrence basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir.1994). Determinations as to service connection are based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In this case, the Veteran's diagnosis of gastric cancer is well established in the record, as is the fact that gastric cancer was a cause of his death. See September 2015 VA treatment record; September 2016 death certificate (noting that stage IV gastric carcinoma was a cause of the Veteran's death). Moreover, as the record shows the Veteran had service in Vietnam during the Vietnam era, his exposure to herbicide agents is presumed. 38 C.F.R.§ 3.307. The remaining question for the Board is whether there is a nexus, or link, between the Veteran's gastric cancer and active service, to include his presumed exposure to herbicide agents. The appellant has submitted a February 2021 private medical opinion from Dr. K., a private oncology consultant and professor emeritus of radiation oncology who is Board-certified in radiation oncology. After reviewing the claims file in its entirety, Dr K. concluded that the Veteran's gastric cancer, which was a contributory factor to his death, was at least as likely caused by his conceded exposure to herbicides during military service in Vietnam. In support of that conclusion, Dr. K. noted that herbicides used in Vietnam, including Agent Orange and Agent Blue, contained known human carcinogens which have been shown to significantly increase the rates of gastric cancer, independently of other factors. Dr. K. further noted that the Veteran had no family history of gastric cancer, and that he did not present any personal risk factors for gastric cancer. Inasmuch as the Dr. K.'s opinion is based on an accurate understanding of the facts, and articulates reasons for the conclusion reached, the Board finds the opinion highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). There are no contrary medical opinions of record. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal is granted in full. As the appeal may be granted in full based on an alternative theory, there is no need to further address the appellant's contention that the Veteran's service-connected heart disability contributed to his death. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.