Citation Nr: 0811088	
Decision Date: 04/03/08    Archive Date: 04/14/08

DOCKET NO.  02-17 852	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, 
Minnesota


THE ISSUE

Entitlement to Dependency and Indemnity Compensation (DIC) 
benefits under 38 U.S.C.A. § 1310.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Ferguson, Associate Counsel



INTRODUCTION

The veteran had active service from January 1969 to January 
1973.  The appellant is the veteran's widow.    

This matter returns to the Board of Veterans' Appeals (Board) 
following Board Remands issued in August 2004 and March 2007.  
This matter was originally on appeal from a September 2001 
rating decision of the Department of Veterans Affairs (VA) 
Regional Office (RO) in St. Paul, Minnesota.  

The Board observes that the appellant requested a Decision 
Review Officer (DRO) hearing in the November 2002 VA Form 9.  
However, the January 2003 VA Form 119 reveals that the 
appellant no longer wanted a hearing with the DRO or any 
other type of hearing and asked that the case be certified 
and forwarded to the Board.  Thus, the appellant's DRO 
hearing request has been withdrawn.      

In the August 2004 Remand, the Board explained that the 
appellant appeared to raise a claim for DIC benefits under 
38 U.S.C.A. § 1318 and a claim of clear and unmistakable 
error in a September 1974 rating decision and referred the 
matters to the RO for appropriate action.  As it is not clear 
whether any action has been taken with respect to these 
undeveloped claims, the Board again refers the matters to the 
RO for appropriate action.   


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of this appeal has been obtained. 

2. The veteran died in June 2001.  The death certificate 
lists the immediate cause of death as post operative 
pulmonary congestion due to post operative bronchial mucus 
plug due to carcinoma of the right lung.      

3. At the time of the veteran's death, service connection was 
in effect for a skull defect, right temporal area with 
acrylic cranioplasty; encephalopathy with recurrent residual 
cephalgia and left hemiparesis, slight; and osteomyelitis, 
bone flap, skull. 

4.  No service-connected disability has been shown to be the 
principal cause or contributory cause of the veteran's death.  

5.  The evidence of record does not show that the veteran was 
exposed to herbicide agents in service.

6.  The competent medical evidence of record does not show 
that the veteran's cause of death is related to active 
military service.  


CONCLUSION OF LAW

A disability incurred in or aggravated by military service 
did not cause or contribute substantially or materially to 
cause the veteran's death.  38 U.S.C.A. §§ 1110, 1310, 5103, 
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.312 
(2007).








REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants 
in substantiating a claim for VA benefits.  38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must 
inform the claimant of any information and evidence not of 
record (1) that is necessary to substantiate the claim; (2) 
that VA will seek to provide; (3) that the claimant is 
expected to provide; and (4) must ask the claimant to provide 
any evidence in his or her possession that pertains to the 
claim in accordance with 38 C.F.R. § 3.159(b)(1).  VCAA 
notice should be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on 
a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  
But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), 
rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 
(Fed. Cir. Apr. 5, 2006) (when VCAA notice follows the 
initial unfavorable AOJ decision, remand and subsequent RO 
actions may "essentially cure [] the error in the timing of 
notice").  VCAA notice should also apprise the veteran of 
the criteria for assigning disability ratings and for award 
of an effective date.  Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).   

In correspondence dated in August 2004, the RO advised the 
appellant of what the evidence must show to support her claim 
for DIC benefits and asked her to provide VA with any 
information and evidence in her possession that pertained to 
her claim.  The RO also explained to the appellant what 
evidence VA was responsible for obtaining and would make 
reasonable efforts to obtain on her behalf in support of her 
claim.  While the RO did not advise the appellant regarding 
the element of effective date with respect to her claim in 
said notice, such notice defect constitutes harmless error in 
this case.  Indeed, the appellant was sent notice of how VA 
determines the effective date in March 2007 by way of the 
June 2006 VCAA letter that had been enclosed with the March 
2007 follow-up VCAA notice letter and the claim was later 
readjudicated in October 2007.  Moreover, the appellant's 
claim is being denied for reasons explained in greater detail 
below and, consequently, no effective date will be assigned.       

Although the Board acknowledges that the August 2004 VCAA 
notice letter was sent after the initial denial of the 
appellant's claim, any timing error has been remedied as that 
notice and a follow-up VCAA notice sent in March 2007 were 
followed by readjudication of the claim in October 2007.  
         
While this case was in remand status, the U.S. Court of 
Appeals for Veterans Claims (Court) held that for dependency 
and indemnity compensation (DIC) benefits, VCAA notice must 
further include (1) a statement of the conditions, if any, 
for which a veteran was service-connected at the time of his 
or her death; (2) an explanation of the evidence and 
information required to substantiate a DIC claim based on a 
previously service-connected condition; and (3) an 
explanation of the evidence and information required to 
substantiate a DIC claim based on a condition not yet 
service-connected.  Hupp v. Nicholson, 21 Vet. App. 342, 352 
(2007).  
 
The Board notes that the RO provided explanation of the 
evidence and information required to substantiate a DIC claim 
based on a previously service-connected condition in the 
August 2004 VCAA notice letter.  Indeed, the RO wrote that VA 
needed medical evidence showing that the veteran's service-
connected conditions caused or contributed to the veteran's 
death.  Thus, notice with respect to the second element was 
satisfied by the August 2004 VCAA notice letter.  However, 
the appellant is not shown to have been provided with 
adequate notice with respect to the first or third elements 
delineated above in any VCAA correspondence issued during the 
course of this appeal.  Nonetheless, the absence of notice 
with respect to both elements is harmless error in this case 
for reasons explained below.  

In regard to the first element, the Board notes that the RO 
listed the disabilities for which the veteran had been 
service-connected during his lifetime stating that none of 
the conditions were held to have caused or to have 
contributed in any way to the veteran's death and 
additionally discussed entitlement to service connection for 
right lung carcinoma on a direct and a presumptive basis due 
to exposure to herbicide agents in the September 2001 rating 
decision.  The appellant subsequently filed a notice of 
disagreement with respect to the September 2001 rating 
decision, specifically asserting that the veteran's death was 
related to Agent Orange exposure during service in Thailand.  
Next, the RO issued a statement of the case (SOC) in 
September 2002 wherein the RO again listed the service-
connected disabilities for which the veteran was service-
connected during his lifetime, stated that none of the 
service-connected conditions were held to have caused or to 
have contributed in any way to the veteran's death, and 
discussed entitlement to service connection for right lung 
carcinoma on a direct and a presumptive basis due to exposure 
to herbicide agents.  In the October 2002 VA Form 9, the 
appellant continued to assert that she believed that her 
husband's death was "service-related due to Agent Orange."  
Additionally, the appellant's representative submitted 
written briefs in January 2007 and February 2008 wherein the 
law and regulation pertaining to DIC benefits are discussed 
and did not indicate any lack of notice with respect to the 
veteran's service-connected disabilities.  Thus, in light of 
the numerous written statements submitted by the appellant 
and her representative during the course of this lengthy 
appeal in response to RO correspondence, the appellant can be 
reasonably expected to have actual knowledge of the 
conditions for which the veteran was service-connected at the 
time of his death.  The Board particularly notes that the 
appellant filed a notice of disagreement in September 2001 
and a substantive appeal in October 2002, wherein she 
asserted that the cause of the veteran's death was due to in-
service herbicide exposure.  Her assertion at that time was 
solely based on information provided to her in the September 
2001 rating decision and September 2002 SOC as she had not 
been provided with VCAA notice with respect to her claim at 
that time.  Although the appellant does not specifically 
mention the veteran's service-connected disabilities in her 
correspondence, it is certainly reasonable to conclude that 
she and her representative were aware of the conditions for 
which the veteran was service-connected but chose to contend 
that the veteran's right lung carcinoma was related to in-
service herbicide exposure rather than any service-connected 
disability.

In regard to the third element, the Board notes that the 
appellant contends that the veteran's death was caused by a 
disorder not yet service-connected, i.e., right lung 
carcinoma, as noted above; however, she was not specifically 
provided with an explanation of the evidence and information 
required to substantiate a DIC claim based on a condition not 
yet service-connected with respect to her claim.  
Nevertheless, the appellant has demonstrated actual knowledge 
of what the evidence must show to establish entitlement to 
service connection for the veteran's right lung carcinoma as 
she has submitted argument in support of her contention that 
the veteran was exposed to herbicide agents in service and, 
as a result, further development has been accomplished.  
Additionally, as above, it can be reasonably expected from 
the correspondence issued during the course of this appeal 
that the appellant knew what evidence was needed to establish 
service-connection for right lung carcinoma and she has 
repeatedly asserted that her husband's death was related to 
in-service herbicide exposure, which indicates that she 
wanted to pursue the theory of service connection based on 
herbicide exposure with respect to her claim.  Furthermore, 
the appellant has been afforded a meaningful opportunity to 
participate in the adjudication of her claim during the 
course of this lengthy appeal such that the essential 
fairness of the adjudication was not affected by such lack of 
notice with respect to that element.  For the foregoing 
reasons and the particular facts presented in this case, the 
Board finds that a remand to the RO for further notice with 
respect to the appellant's claim would only serve to delay 
adjudication of the claim unnecessarily.      

The Board further notes that the RO provided the veteran with 
a copy of the September 2001 rating decision, the September 
2002 SOC, and the October 2007 Supplemental Statement of the 
Case (SSOC), which included a discussion of the facts of the 
claim, pertinent laws and regulations, notification of the 
basis of the decision, and a summary of the evidence 
considered to reach the decision.  

Therefore, the Board concludes that the requirements of the 
notice provisions of the VCAA have been met, and there is no 
outstanding duty to inform the veteran that any additional 
information or evidence is needed.  Quartuccio, 16 Vet. 
App. at 187.  

To fulfill its statutory duty to assist, the RO submitted a 
search request to the U.S. Army and Joint Services Records 
Research Center (JSRRC) in August 2004 in an attempt to 
verify the appellant's claim that the veteran was exposed to 
Agent Orange in service, as pursuant to the August 2004 Board 
Remand.  In January 2005, JSRRC replied that it was unable to 
assist with the request because it did not maintain military 
personnel files, unit histories, or files related to the 
veteran's duty assignments.  Subsequently, the RO contacted 
the US National Archives and Records Administration (NARA) in 
February 2006.  In its March 2006 response, the NARA informed 
the RO that unit histories and supporting documents of Air 
Force units were in the custody of the Air Force Historical 
Research Agency.  In June 2006, the RO submitted a request to 
the Air Force Historical Research Agency for the unit 
histories of the 307th Field Maintenance Squadron in Thailand 
during January 1971.  The Air Force Historical Research 
Agency responded in July 2006 that it could find no reference 
to the aircraft that sprayed herbicide agents in Vietnam in 
the histories for the 307th Strategic Wing (parent of the 
307th Field Maintenance Squadron) and enclosed copies of 
relevant pages from the Project Checo South Asia Report: 
Ranch Hand Herbicide Operations in Sea that indicated that 
the aircraft and spray systems belonged to the 310th Tactical 
Airlift Squadron of the 315 Tactical Airlift Wing.  

The Board also notes that the appellant's representative 
suggested that a request for records from the Social Security 
Administration be made in the June 2004 Appellant's Brief and 
the record reflects that no such request was made.  However, 
the Board finds that a remand to obtain social security 
records is not necessary in this case as the representative 
expressed uncertainty as to whether the veteran was even in 
receipt of such benefits and the records are not deemed 
pertinent to the claim because they would not show that the 
veteran was exposed to herbicide agents in service, as 
contended by the appellant.   

The Board further notes that the appellant's representative 
suggested in the June 2004 Appellant's Brief that an 
independent medical opinion be obtained regarding the 
relationship between the veteran's cancer and herbicide 
exposure.  However, as the veteran is not shown to have been 
exposed to herbicide agents in service, no such opinion is 
needed in this case.   
   
The appellant has not made the RO or the Board aware of any 
other evidence relevant to this appeal that needs to be 
obtained.  Based on the foregoing, the Board finds that all 
relevant facts have been properly and sufficiently developed 
in this appeal and no further development is required to 
comply with the duty to assist the appellant in developing 
the facts pertinent to her claim.  Based on the foregoing, 
the Board finds that the RO complied with its August 2004 and 
March 2007 Remands.  Stegall v. West, 11 Vet. App. 268 
(1998).  Accordingly, the Board will proceed with appellate 
review.  

Analysis 

The appellant essentially contends that the underlying cause 
of the veteran's death, carcinoma of the right lung, was 
caused by exposure to herbicide agents during his service in 
Thailand.  The appellant asserts that the veteran was exposed 
to Agent Orange while performing maintenance on aircraft that 
had been to Vietnam and were contaminated with Agent Orange 
as part of his duties as an environmental systems repairman 
with the 307th Field Maintenance Squadron.

Dependency and Indemnity Compensation (DIC) benefits are 
payable to the surviving spouse of a veteran if the veteran 
died from a service-connected or compensable disability.  38 
U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2007).

In order to establish service connection for the cause of 
death, there must be (1) evidence of death; (2) evidence of 
in-service incurrence or aggravation of a disease or injury; 
and (3) medical evidence of a nexus between the claimed in-
service disease or injury and death.  Hickson v. West, 12 
Vet. App. 247, 253 (1999).  

The Board initially notes that the evidence of record 
confirms the occurrence of the veteran's death.  Indeed, the 
death certificate notes that the veteran died in June 2001 of 
post operative pulmonary congestion due to post operative 
bronchial mucus plug as a result of carcinoma of the right 
lung.  

In regard to the second criterion, the record reflects that 
service connection had been established during the veteran's 
lifetime for a skull defect, right temporal area with acrylic 
cranioplasty; encephalopathy with recurrent residual 
cephalgia and left hemiparesis, slight; and osteomyelitis, 
bone flap, skull.  However, the appellant does not contend 
and the evidence does not show that any of the veteran's 
service-connected disabilities was either the principal or a 
contributory cause of the veteran's death.  Rather, as stated 
above, the appellant contends that the veteran's right lung 
carcinoma, which was not service-connected, was related to 
in-service herbicide exposure.  

In order to establish presumptive service connection for a 
disease associated with exposure to certain herbicide agents, 
the evidence must show the following:  (1) that the veteran 
served in the Republic of Vietnam during the period beginning 
on January 9, 1962 and ending on May 7, 1975; (2) that the 
veteran currently suffers from a disease associated with 
exposure to certain herbicide agents enumerated under 
§ 3.309(e); and (3) that the current disease process 
manifested to a degree of 10 percent or more within the 
specified time period prescribed in § 3.307(a)(6)(ii).  38 
U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 
3.309(e) (2007).  

The Board notes that the underlying cause of the veteran's 
death, right lung carcinoma, is enumerated as a disease 
associated with exposure to certain herbicide agents under 
38 C.F.R. § 3.309(e).  However, the veteran is not shown to 
have served in the Republic of Vietnam during the requisite 
period as service personnel records do not show that the 
veteran actually served in Vietnam, but rather served in 
Thailand from January 1971 to January 1972.  Therefore, 
exposure to herbicide agents is not presumed.  

Nonetheless, if the evidence shows that the veteran was 
exposed to herbicide agents during his period of active 
military service, service connection for his right lung 
carcinoma may still be established.  

A review of the record, however, does not show that the 
veteran was exposed to herbicide agents in service.  Service 
personnel records show the veteran began his service in 
Thailand as an environmental systems repairman with the 307th 
Field Maintenance Squadron on January 4, 1971.  His duties as 
a repairman at that time included inspecting, 
troubleshooting, repairing, and modifying aircraft air 
conditioning, anti-icing, cabin pressurization and oxygen 
systems and components on B-52 and KC-135 aircraft and, 
generally, preparing bombardment and tanker aircraft for 
strike and refueling missions; there is no indication that 
the veteran performed maintenance on aircraft involved in 
herbicide missions.  In addition, the Air Force Historical 
Research Agency wrote in July 2006 correspondence that it 
could find no reference to the aircraft (i.e., UC-123) that 
sprayed herbicide agents in Vietnam in the unit histories for 
the 307th Strategic Wing (parent of the 307th Field 
Maintenance Squadron) and enclosed copies of relevant pages 
from a declassified report (i.e., Project Checo South Asia 
Report) that indicated that the aircraft that participated in 
herbicide missions involved another unit (i.e., the 310th 
Tactical Airlift Squadron of the 315 Tactical Airlift Wing) 
and that the herbicide mission of the United States Air Force 
terminated in January 1971, the month that the veteran began 
his service in Thailand.  Thus, the evidence does not show 
that the veteran or his assigned unit was involved with 
herbicide missions to include the maintenance of aircraft 
involved in such missions during the veteran's service in 
Thailand and there is no indication that the veteran was 
otherwise exposed to herbicide agents during his period of 
active military service.  Consequently, the veteran's 
exposure to herbicide agents in service, as claimed by the 
appellant, is not shown.  

Furthermore, as noted above, the appellant does not contend 
and the evidence does not show that any of the veteran's 
service-connected disabilities was either the principal or a 
contributory cause of the veteran's death.  Moreover, there 
is no evidence otherwise linking the veteran's death to his 
active military service.  Indeed, the veteran's service 
medical records are negative of any findings of respiratory 
cancer and there is no indication of right lung carcinoma 
shown until many years after separation from service.  
Additionally, there is no competent medical opinion of record 
linking the cause of the veteran's death to active military 
service.      

Although the Board observes that the appellant has repeatedly 
asserted that the cause of the veteran's death, right lung 
carcinoma, was due to in-service herbicide exposure, the 
evidence does not show that the veteran was exposed to 
herbicide agents in service.  Furthermore, there is no 
medical evidence causally linking the veteran's death to his 
active military service.  Grottveit v. Brown, 5 Vet. App. 91 
(1993).  Based on the foregoing reasons, the Board finds that 
the preponderance of the evidence weighs against the 
appellant's claim and entitlement to service connection for 
the cause of the veteran's death must be denied.  

In reaching this conclusion, the Board notes that under the 
provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt 
is to be resolved in the claimant's favor in cases where 
there is an approximate balance of positive and negative 
evidence in regard to a material issue.  The preponderance of 
the evidence, however, is against the appellant's claim and 
that doctrine is not applicable.  Gilbert v. Derwinski, 1 
Vet. App. 49 (1990).


ORDER

Entitlement to Dependency and Indemnity Compensation under 38 
U.S.C.A. § 1310 is denied.



____________________________________________
STEVEN L. COHN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs