Citation NR: 9604685 Decision Date: 02/27/96 Archive Date: 03/08/96 DOCKET NO. 95-06 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran’s death. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Charles G. Sener INTRODUCTION The veteran was retired from active military service in May 1975 with more than 21 years of active duty. His death, at age 50, occurred on July [redacted] 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1986 rating decision of the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO), which denied a claim of entitlement to service connection for the cause of the veteran’s death. A February 1988 rating decision, which confirmed and continued the October 1986 rating decision, denied the appellant’s claim of entitlement to service connection for the cause of the veteran’s death as secondary to Agent Orange exposure. However, in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989), a United States District Court voided all benefit denials under 38 C.F.R. § 3.311a, the "dioxin" (Agent Orange) regulation, which was promulgated under the "Dioxin and Radiation Exposure Compensation Standards Act," 38 U.S.C.A. § 1154(a) (West 1991), and remanded the case to VA for revision of the regulation in accordance with the ruling of the Court. In October 1990, the RO notified the appellant that the issue of entitlement to service connection for the cause of the veteran’s death as secondary to Agent Orange exposure would be held in abeyance pending the promulgation of regulations pertaining to Agent Orange exposure, as required by Nehmer. Final regulations were promulgated by VA in February 1994, and the RO, in an August 1994 rating decision, has again denied the appellant's claim after considering the new regulations. A teleconferencing hearing was held at the Board on July 28, 1995, between Washington, D.C. and St. Petersburg, Florida, before Kenneth R. Andrews, who is a member of the Board section rendering the determination in this claim and was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). A transcript of the hearing was received in August 1995, and the case was subsequently referred for appellate consideration. Further review of the evidence of record discloses that the appellant has submitted additional evidence following certification of her appeal to the Board. After consideration of the provisions of 38 C.F.R. §§ 19.37(b), 20.1304 (1994), it is noted that the appellant, in July 1995, has waived the procedural right for review and preparation of a Supplemental Statement of the Case by the agency of original jurisdiction. In view of the favorable disposition of the certified issue, the question of entitlement to Chapter 35 benefits is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant avers that service connection should be granted for the cause of the veteran’s death, respiratory insufficiency due to extensive metastatic adenocarcinoma of the lungs. While stationed in Thailand from October 1971 to September 1972, the veteran served as the Airborne Weapons Technician Crew Chief aboard AC-130 gunships and served as lead gunner during in-flight operations. He flew missions over Vietnam and at times landed in Vietnam for refueling and rearming. The appellant maintains that the veteran was exposed to Agent Orange while in service and that herbicide exposure caused him to develop the lung cancer which eventually resulted in his death. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that there is an approximate balance between the positive and negative evidence pertaining to the claim of entitlement to service connection for the cause of the veteran’s death. Because the benefit of the doubt regarding this claim is extended to the appellant by statute when the evidence is in equipoise, the Board finds that service connection is warranted for the cause of the veteran’s death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The appellant had active service in the Republic of Vietnam during the Vietnam era. 3. Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) are recognized by VA as etiologically related to exposure to herbicide agents used in Vietnam. 4. An August 1984 private medical consultation, from L.A.F., M.D., indicated that the veteran’s most probable diagnosis was metastatic adenocarcinoma from occult primary lesion from the lung; and an August 1984 private surgical pathology consultation, from D.R.J., M.D., listed a diagnosis of metastatic Grade IV adenocarcinoma that was “highly suggestive of primary pulmonary origin, however, other sites of primary adenocarcinoma should be considered.” 5. The veteran’s death, at the age of 50, occurred on July [redacted] 1986, and it was noted in a July 1986 certificate of death that respiratory insufficiency due to extensive metastatic adenocarcinoma of the lungs and pericardium was the immediate cause of death. 6. A January 1995 private oncologist statement, from L.A.F., M.D., noted that an extensive evaluation had been performed and that the veteran’s “disease behaved as a primary lung carcinoma with eventual extension to the pericardium and death.” 7. At the time of his death, the veteran was service-connected for right inguinal herniorrhaphy, bilateral high frequency hearing loss, duodenal ulcer, and hemorrhoids, all evaluated as noncompensably disabling. 8. The veteran’s respiratory cancer, diagnosed as extensive metastatic adenocarcinoma of the lungs, which is shown to be related to Agent Orange exposure in service, is shown to have been a factor in his death. CONCLUSION OF LAW The veteran’s death was caused, or substantially or materially contributed to, by a disability incurred in or aggravated by military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.312, 3.307(a), 3.309(a), (e) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As stated above, the appellant contends that the veteran developed a respiratory cancer as a result of exposure to Agent Orange in Vietnam that eventually caused his death. Because a well-grounded claim is neither defined by the statute nor the legislative history, it must be given a common sense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed, and the obligation of the VA to assist the appellant in the development of the claim has been satisfied. Id. A chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (1994) will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than one listed in 38 C.F.R. § 3.309(a) (1994) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 1991); 38 C.F.R. § 3.307(a) (1994). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (1994). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (1994) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1994) are also satisfied: chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, multiple myeloma, Non-Hodgkin's lymphoma, porphyria cutanea tarda, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (1994). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit recently determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The diseases listed at 38 C.F.R. § 3.309(e) (1994) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1994). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause of death. For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1994). When, after consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1994). The veteran was 50 years old when he died on July [redacted] 1986. A certified copy of the death certificate shows that the immediate cause of death was respiratory insufficiency due to extensive metastatic adenocarcinoma of the lungs and pericardium, with no other conditions contributing to death listed. At the time of his death, the veteran was service-connected for right inguinal herniorrhaphy, bilateral high frequency hearing loss, duodenal ulcer, and hemorrhoids, all evaluated as noncompensably disabling. Review of the veteran’s service medical records, including a June 1974 service retirement report of medical examination, reveals no complaint, symptomatology, or finding related to Agent Orange exposure. Review of the veteran’s service personnel records, including a copy of a June 1972 AF Form 910, “TSGT, SSGT and SGT Performance Report,” indicated that while the veteran was stationed at the 16th Special Operations Squadron, Ubon Airfield, Thailand (PACAF), from October 1971 to September 1972, he served as the Airborne Weapons Technician Crew Chief aboard AC-130 gunships. Additionally, it was reported that the veteran served as lead gunner during in-flight operations, and the guns serviced by him and his crew had damaged or destroyed over 300 enemy supply vehicles in Southeast Asia. Also of record are copies of mission records, 8CSGP Form 0-106, Nov 71, dated from December 1971 to September 1972, showing approximately 108 missions over Southeast Asia, including Vietnam. A March 1994 lay statement, from R.J.M., CMSgt, USAF, indicated that R.J.M. had personally flown over 125 combat missions in Southeast Asia, between October 1971 and September 1972, as an aerial gunner aboard AC-130 gunships. He stated that although he had been stationed at Ubon Royal Thai Air Base, Thailand, that he had often landed at locations within the borders of South Vietnam for various reasons, including aircraft malfunction and to refuel and rearm. It was noted that in the early 1970’s the AC-130 operated at altitudes well under 8,000 feet and that aircraft doors and panels were removed to accommodate gun and sensor installation; furthermore, the aft cargo door was always open as an illumination flare was mounted on the cargo ramp. A July 1995 lay statement, from L.D.S., indicated that the veteran had been stationed with L.D.S. at Ubon Royal Thai Air Force Base, Thailand, from 1971 through 1972. It was noted that they had flown together on AC-130 gunships and that they routinely flew multiple sorties in support of ground forces in South Vietnam during the North Vietnamese 1972 offensive. L.D.S. also recalled that they had landed in South Vietnam to rearm and refuel and that Ton Son Nhut Air Base, Saigon, had been their most frequent staging base. Private medical records, from Lakeland Regional Medical Center, dated from August 1984 to July 1986, showed the diagnosis and treatment, including multiple courses of chemotherapy and radiation therapy, of the veteran’s metastatic adenocarcinoma of the lungs. In particular, an August 1984 private medical consultation, from L.A.F., M.D., indicated that “the most probable diagnosis on this patient is of metastatic adenocarcinoma from occult primary lesion from the lung[,] although statistically this occult from the lung tends to be squamous cell carcinoma more often.” An August 1984 private surgical pathology consultation, from D.R.J., M.D., listed a diagnosis of metastatic Grade IV adenocarcinoma that was “highly suggestive of primary pulmonary origin, however, other sites of primary adenocarcinoma should be considered.” Finally, a July 1986 death summary, from A.T., M.D., disclosed that the veteran had been admitted in severe respiratory distress due to metastatic adenocarcinoma, with bilateral pulmonary metastases. Supportive care was started, including IV fluids, tranquilizers, and continuous infusion therapy; however, he progressively went downhill, became hypotensive and comatose, and expired on July [redacted] 1986. A January 1995 private medical statement, from the veteran’s former oncologist, L.A.F., M.D., indicated that he had treated the veteran from August 1984 until his death, in July 1986. The physician stated that the veteran was diagnosed with Grade IV adenocarcinoma, and was treated with radiation therapy and chemotherapy; nevertheless, there was recurrence of disease in June 1985 when the veteran presented with bilateral parenchymal lung metastasis. Despite further therapy the veteran succumbed to extensive metastatic adenocarcinoma. It was further noted, by history, that the veteran had had exposure to Agent Orange while in service. And, although it was noted on technical grounds that it was impossible to determine the primary site of the veteran’s cancer, the physician declared that an extensive evaluation had been performed and that the veteran’s “disease behaved as a primary lung carcinoma with eventual extension to the pericardium and death.” The oncologist further opined that in all likelihood the veteran had a primary lung carcinoma that had not been detected under CT scan or bronchoscopy. The physician also noted that VA was presuming that the primary lesion on the veteran was somewhere else besides the lungs. However, it was pointed out that “[s]tatistically though, these presumptions favor the patient since these lesions are proven not to be a lymphoma or a testicular tumor or a thyroid tumor, [but] are most likely related to lung primary.” Review of the claims file also reveals records of hearing transcript, from a June 1994 hearing at the RO and a July 1995 teleconferencing hearing before the Board. These transcripts included references to the previously mentioned evidence as well as argument for service connection for the cause of the veteran’s death. After a careful and longitudinal review of all procurable and assembled data presented in this case, the Board has determined that the evidence pertaining to the claim of entitlement to service connection for the cause of the veteran’s death is in equipoise. Review of the veteran’s service personnel records, including mission records and evaluation reports, and lay statements disclosed that the appellant flew many AC-130 combat missions over Southeast Asia as a weapons technician crew chief and lead door gunner, from October 1971 to September 1972. Although stationed in Thailand, the evidence of record demonstrates that the appellant had landed in Vietnam for refueling, rearming, etc.; moreover, exposure to Agent Orange while in Vietnam is presumed for a veteran who served in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(iii) (1994). The cause of the veteran’s death was respiratory insufficiency due to extensive metastatic carcinoma of the lungs, a respiratory cancer, first diagnosed in August 1984 and well within 30 years of the veteran’s last presumed exposure to Agent Orange in Vietnam. Although it may be impossible to determine the exact origin of the veteran’s adenocarcinoma, the January 1995 private oncologist statement disclosed that in all likelihood the veteran had a primary lung carcinoma, and statistically this is the most likely presumption. Therefore, the Board finds that it is certainly within the range of probability as distinguished from pure speculation or remote possibility that the veteran’s respiratory cancer, diagnosed as extensive metastatic adenocarcinoma of the lungs, is related to Agent Orange exposure in service, and was a factor in the veteran’s death. When there is an approximate balance of the positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the appellant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1994). Therefore, the benefit of the doubt is extended to the appellant, and service connection is granted for the cause of the veteran’s death. ORDER Service connection for the cause of the veteran’s death is granted. KENNETH R. ANDREWS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991, amended by Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -