Citation Nr: 0813812 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 07-30 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The veteran had 20 years active service ending with his retirement in July 1978. He died in March 2007. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas, that denied the benefits sought on appeal. The appellant's notice of disagreement was received in August 2007. A statement of the case was issued in September 2007, and a substantive appeal was received in September 2007. In February 2008, the appellant submitted a Motion to Advance on the Docket. In April 2008, the Board granted the appellant's motion. FINDINGS OF FACT 1. The veteran was not exposed to Agent Orange or any comparable herbicide agent during active military, naval, or air service. 2. The veteran died in March 2007, and the death certificate lists the immediate cause of death as lymphoma cancer. 3. At the time of the veteran's death, service connection had not been established for any disability. 4. The disability that caused the veteran's death was not manifested during the veteran's military service or for many years thereafter, nor was it otherwise related to the veteran's service. CONCLUSION OF LAW The veteran's death was not caused by or substantially or materially contributed to by a disability incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007) Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The initial notification in this case was by way of a letter from the RO to the veteran dated in April 2007. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Although the present appeal involves an issue of service connection for the veteran's cause of death, VA believes that the Dingess/Hartman analysis must be analogously applied. To the extent that such notice may be deficient in any respect, such as with regard to an effective date, the matter is effectively moot in light of the following decision which finds that the preponderance of the evidence is against the appellant's claim. The Board further notes that the status of the appellant's husband as a veteran has never been contested. VA has adjudicated the appellant's claim based on her husband's status as a veteran as defined by 38 C.F.R. § 3.1. Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. All available pertinent records have been obtained. In this regard, VA has obtained and reviewed the veteran's service personnel records as well as his service medical records. Further, the RO requested a special search for documentation of any service in Vietnam, but no records showing such service were located. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the appellant as relevant to the issue on appeal. Under these circumstances, no further action is necessary to assist the appellant with her claim. Criteria & Analysis In a claim of service connection for the cause of the veteran's death, evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2007). Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. A service-connected disability is the principal cause of death when that disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death must be causally connected to death and must have substantially or materially contributed to death; combined to cause death; or aided or lent assistance to the production of death. 38 C.F.R. § 3.312. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as Hodgkin's Disease and malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1). The 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). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d). The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, 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). 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 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, 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.A. § 1116(f). The Board recognizes that the veteran had Air Force service. However, for background information purposes it is noted that "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). An opinion of the General Counsel for VA held that service on a deep-water naval vessel off the shores of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C. § 101(29)(A), which defines the Vietnam era as the period beginning on February 28, 1961, and ending on May 7, 1975, and that this was not inconsistent with the definition of service in the Republic of Vietnam found in 38 C.F.R. § 3.307(a)(6)(iii). VAOPGCPREC 27-97 (July 23, 1997). A veteran must demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service. Id. Since issuance of that General Counsel opinion, VA has reiterated its position that service in deep-water naval vessels offshore of Vietnam (as opposed to service aboard vessels in inland waterways of Vietnam) is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases. See comments section in Federal Register announcement of final rule adding diabetes to the list of Agent Orange presumptive diseases, 66 Fed.Reg. 23166 (May 8, 2001). In keeping with the above, the Board declines to view flights over Vietnam as service in Vietnam for purposes of the presumption. Rather, the Board believes that actual duty or visitation in Vietnam is necessary. Notwithstanding the above, in Haas v. Nicholson, No. 04-491 (U.S. Vet. App. Aug. 16, 2006), the Court holds that, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), "service in the Republic of Vietnam" will, in the absence of contradictory evidence, be presumed based upon the veteran's receipt of a Vietnam Service Medal (VSM), without any additional proof required that a veteran who served in waters offshore actually set foot on land in the Republic of Vietnam. In other words, exposure to herbicides will be presumed based on the receipt of a VSM. Examples of contradictory evidence include evidence that the VSM was received for service in a neighboring country or at a location that reasonably precluded exposure to Agent Orange. However, in the present case the evidence does not show that the veteran was awarded the VSM. Presumption of Exposure The Board acknowledges that the appellant contends that the veteran developed lymphoma cancer resulting from Agent Orange exposure during service in Vietnam. However, the veteran's service personnel records do not show that the veteran was ever physically present in the Republic of Vietnam for active duty service. Records show that the veteran was assigned to duty in Thailand. There is also no reference to service in Vietnam in the service medical records. Therefore, the provisions of 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e) are not for application. Direct Service Connection As noted above, the veteran died in March 2007. His death certificate lists the immediate cause of death as lymphoma cancer. At the time of the veteran's death in March 2007, the veteran was not service-connected for lymphoma cancer or any other disabilities. The Board notes that the service medical records are negative for complaints of lymphoma cancer. Moreover, a service Report of Medical Examination dated in October 1977 reflects that the veteran's skin and lymphatics were clinically evaluated as normal. There is also no post-service medical record pertaining to lymphoma cancer until the veteran was treated for refractory lymphoma at Wilson N. Jones Medical Center in March 2007, which was many years after discharge. Moreover, there is no competent evidence in the record suggesting a causal link between the veteran's lymphoma cancer and his service. The Board is thus presented with an evidentiary record which does not show that the disability which caused the veteran's death manifested in service, or within the presumptive period. There is also no medical evidence offered in this case which otherwise suggests that the veteran's lymphoma was causally related to service. The Board sympathizes with the appellant for her loss. However, the preponderance of the evidence is against a finding of a link between the veteran's cause of death and his service. Thus, the appellant's claim must be denied. See Ruiz v. Gober, 10 Vet. App. 352 (1997). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A § 5107 (West 2002). ORDER Entitlement to service connection for the cause of the veteran's death is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs