Citation Nr: 21032588 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-07 680 DATE: May 27, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marines from April 1968 to October 1970. The Veteran passed away in December 2003. The appellant is his surviving spouse. The appellant contends that the Veteran's death is related to exposure to herbicide agents during his service in Vietnam. Service in Vietnam is confirmed by the Veteran's DD Form 214. As such, exposure to herbicide agents is conceded. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board reopened the appellant's previously denied claim for service connection cause of death and remanded the matter for further development. Service connection for cause of death was denied in August 2019, making the decision final. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court set aside the August 2019 Board decision and remanded the matter for further development and readjudication. The parties agreed the Board relied on an inadequate VA examination in its decision. Specifically, the Court found that the April 2019 VA examiner failed to (1) consider whether the Veteran's chronic obstructive pulmonary disease (COPD) and carcinoma of the esophagus are etiologically related to herbicide exposure even though they are not presumptive conditions; (2) explain why the Veteran's listed risk factors were likely to have caused his esophageal cancer; and (3) opine on whether the Veteran's hypertension was the result of herbicide exposure. Additionally, the medical opinion was provided by a nurse practitioner and not an M.D., and did not consider the National Academy of Sciences upgrade of hypertension to the "sufficient" category regarding an association between hypertension and herbicide exposure, as required by the April 2019 Board Remand. Although VA has established a presumption of service connection due to herbicide agent exposure for some disorders, hypertension is not on the list. 38 C.F.R. § 3.309(e). Nevertheless, a Veteran is not precluded from establishing service connection on a direct basis if the most probative evidence supports an etiological nexus between their current disability and herbicide agents. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). This matter is REMANDED for the following action: 1. Obtain a medical opinion from an M.D. regarding the Veteran's cause of death. A copy of the Veteran's claim file should be provided to the physician. The physician is asked to provide an opinion on the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's carcinoma of the esophagus is etiologically related to his in-service herbicide agent exposure? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's COPD is etiologically related to his in-service herbicide agent exposure? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is etiologically related to his in-service herbicide agent exposure? The physician shall consider the National Academy of Sciences upgrade of hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure (see Veterans and Agent Orange: Update 11 (2018)). A complete rationale should be provided for his/her opinion. The physician is encouraged to cite to medical/scientific information to support his/her opinion as appropriate. The physician is advised that a rationale that carcinoma of the esophagus, COPD, and hypertension are not related to herbicide exposure because VA has not established a presumption for the disorder is insufficient and may require further development. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.