Citation Nr: 18124033
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-27 634
DATE:	August 3, 2018
Entitlement to service connection for the cause of the Veteran's death is remanded.
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.
1. Entitlement to service connection for the cause of the Veteran's death is remanded.
The appellant has filed a claim for service connection for the cause of the Veteran’s death. She believes that the cause of death shown is etiologically related to his active duty military service. The Veteran’s death certificate lists multiple organ failure, adult respiratory distress syndrome, pneumonia, and esophagogastrectomy as the causes of death. 
The appellant contends that the Veteran died due to multiple organ failure caused by esophagogastrectomy and that the esophageal cancer was due to his exposure to contaminated ground water at Camp Lejeune or due to his exposure to Agent Orange in Vietnam. 
The RO denied the claim by finding that the Veteran’s esophageal cancer was not incurred or caused by service and not manifested to a compensable degree within one year of discharge from the service. It also found that 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. The Court of Appeals for Veterans Claims 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.
The Board recognizes that 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, see 38 C.F.R. § 3.309(e), but also must determine whether his disability is the result of active service.
Here, it is unclear whether the Veteran’s cause of death is related to his active service to include Agent Orange exposure as no medical opinion has been obtained in this regard. Furthermore, noting that the disability was not present in service or for many years thereafter is not a sufficient basis to deny the claim. Thus, a VA opinion is needed.
The Board notes that an opinion for the Veteran’s exposure to unclean water while serving at Camp Lejeune is not required because the RO has already obtained an opinion from a medical doctor who is a member of the Subject Matter Expert Panel for the Camp Lejeune Contaminated Water Project.
The matter is REMANDED for the following action:
1. Refer the entire record to an appropriate VA examiner to obtain an opinion regarding the nature and etiology of the Veteran’s cause of death.  The entire record is to be reviewed so the examiner may become familiar with the Veteran’s pertinent medical history.
2. Following a review of the relevant evidence, to include the claims file, service treatment records, and post-service treatment records, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s esophageal cancer began during or is causally related to service, to include as due to presumed exposure to Agent Orange.
The examiner should be aware that the absence of the Veteran’s disability on the list of disabilities subject to presumptive service connection is not dispositive evidence weighing against the claim.  As such, it should not be used as the sole basis in support of a negative nexus opinion.
The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion.
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Hammad Rasul, Associate Counsel

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