Citation Nr: 21028734 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-33 451 DATE: May 11, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Navy from December 1974 to April 1977. The Veteran passed away in February 2012. The Appellant in the present appeal is his surviving son. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the issue on appeal for further development. The issue has returned to the Board. REASONS FOR REMAND The Appellant seeks entitlement to service connection for the cause of the Veteran's death. Regrettably, as discussed below, a remand is required to obtain a VA medical opinion. Entitlement to service connection for the cause of the Veteran's death is remanded. At the time of his death, the Veteran was not service connected for any disability. The Veteran's death certificate states that his immediate cause of death was soft-tissue sarcoma. The Appellant contends that the Veteran's death was caused by exposure to herbicides during his service in Vietnam. A veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era also will be presumed to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307(a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). 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 basis. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). As discussed in the February 2019 Board decision/remand, the Veteran's DD-214, Certificate of Release or Discharge from Active Duty, confirms that the Veteran's last duty of assignment and major command was on board the U.S.S. Duluth (LPD 6), with his last date of active duty in April 1977. The Appellant has specifically asserted that the Veteran served aboard the U.S.S. Duluth in April 1975; however, the Veteran's service personnel records show that the Veteran was located at the Navy Training Center in San Diego, California, in April 1975. The service personnel records further show that the earliest documented record of his service on the U.S.S. Duluth was in August 1975. Thus, as the Veteran was not aboard the U.S.S. Duluth during the presumptive period, presumptive service connection for soft-tissue sarcoma is not for application in this case. However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude the Appellant from establishing entitlement to service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). As directed by the Board in February 2019, the Veteran's service treatment records were obtained on remand. However, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for the cause of the Veteran's death because no VA opinion has been provided and no VA examiner has opined whether the Veteran's soft-tissue sarcoma was caused by service. Therefore, a VA opinion is necessary on remand. The matter is REMANDED for the following action: 1. Forward the Veteran's claims folder to an appropriate clinician for review and for an opinion on the cause of the Veteran's death. Based on a review of the record, and with consideration of the Appellant's statements, the examiner must state whether the Veteran's soft-tissue sarcoma diagnosed post-service, which was identified as the cause of the Veteran's death, was related to events during his military service or any incident therein, to include herbicide exposure. In addressing this question, the examiner should not rely solely on the fact that presumptive service connection is not available for the disorder, as that will result in an inadequate opinion. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 2. After completing all indicated development, the Appellant's claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Appellant and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.