Citation Nr: 1114409 Decision Date: 04/13/11 Archive Date: 04/21/11 DOCKET NO. 08-14 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service-connected death burial benefits. 3. Entitlement to service connection for multiple myeloma, claimed as due to exposure to herbicides, for accrued benefits purposes. 4. Entitlement to service connection for diabetes mellitus type II claimed as due to exposure to herbicides, for accrued benefits purposes. 5. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Brandon I. Dorsey, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran had active military service from August 1959 to February 1960, from October 1961 to January 1974, and from April 1974 to October 1985. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, and from a September 2007 decision by the Jackson RO. In September 2010, the appellant and her daughter testified at a personal hearing before the undersigned Acting Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. The Board notes that the issue of entitlement to burial benefits was previously listed as entitlement to a plot or interment allowance. The Board has broadened this issue to more accurately reflect that the appellant has effectively perfected an appeal of denial of burial benefits. The Board considers this recharacterization to be appropriate in light of (1) the appellant's specific reference to the "denial for burial benefits" in her March 2008 notice of disagreement; (2) the notification regarding 38 C.F.R. § 3.1600(a) "Service-connected death and burial allowance" in the April 2008 statement of the case, and (3) the appellant's clear indications that she was pursuing benefits in connection with her belief that her husband's death was related to his military service. FINDINGS OF FACT 1. The Veteran died on March [redacted], 2006; according to his death certificate, his death was the result of multiple myeloma. 2. Resolving reasonable doubt in favor of the appellant, the Veteran's death is presumptively attributable to his active military service. 3. At the time of his death, the Veteran had no pending claim of entitlement to service connection for multiple myeloma. 4. At the time of his death, the Veteran had no pending claim of entitlement to service connection for diabetes mellitus type II. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1310, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312 (2010). 2. The criteria for service-connected burial benefits have been met. 38 U.S.C.A. §§ 2302, 2304 (West 2002); 38 C.F.R. § 3.1600(a) (2010). 3. The appellant is not entitled to accrued benefits for service connection for multiple myeloma. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2010); 38 C.F.R. § 3.1000 (2010). 4. The appellant is not entitled to accrued benefits for service connection for diabetes mellitus type II. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2010); 38 C.F.R. § 3.1000 (2010). 5. Entitlement to DIC benefits under 38 U.S.C. § 1318 is moot. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2010)). In light of the favorable decision as it relates to the issues of entitlement to service connection for the cause of the Veteran's death and entitlement to burial benefits, any error by VA in complying with any requirements of VCAA as to these issues is moot. The duty to assist in an accrued benefits claim is limited to obtaining evidence of the appellant's standing to pursue the claim, if not already of record. See 38 C.F.R. § 3.1000(c) (2010). In this case, the marriage certificate reflecting the appellant's marriage to the Veteran is of record. Thus, the Board concludes that limited duties to notify and assist have been satisfied. II. Cause of Death Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2010); 38 C.F.R. § 3.312 (2010). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service- connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). According to his death certificate, the Veteran died March [redacted], 2006. The immediate cause of death was listed as multiple myeloma. No other immediate cause, underlying cause, or significant condition contributing to death was listed on the death certificate. The appellant contends that service connection for multiple myeloma is warranted based on the Veteran's exposure to Agent Orange as a consequence of his repeated presence in the Demilitarized Zone (DMZ) during military service in Korea. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.309(e) (2010). (In this context, the term 'herbicide agent' is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i) (2010).) Multiple myeloma is listed among the diseases that are associated with herbicide exposure for purposes of this presumption. 38 C.F.R. § 3.309(e). Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain veterans who served in Korea. Specifically, VA added a new paragraph (a)(6)(iv) to 38 C.F.R. § 3.307 that reads as follows: (a)(6)(iv) A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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. This amendment is applicable to all applications for benefits that are received by VA on or after February 24, 2011 and to all applications for benefits that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on February 24, 2011. Thus, the amendment possibly applies to the appellant's claim. The Veteran's service personnel records reflect that he served in Korea from March 1969 to June 1970. During this period, the Veteran was a supply sergeant assigned to Company A of the United States Army Security Agency Group. The Board notes that members of this unit are not presumed to have been exposed to herbicide agents such as Agent Orange under VA Adjudication Procedure Manual M21-1MR, Part IV, Subpart ii, Chapter 2, § C.10.p (2010) or the new section 3.307(a)(6)(iv). That is, the Department of Defense (DoD) does not expressly list the Veteran's unit as being exposed to herbicides. Therefore, the Board concludes that the Veteran does not qualify for the presumption of Agent Orange exposure based on his Korea service. Therefore, in order for the Veteran's multiple myeloma to be connected to his military service, the Board must determine that the evidence reflects the Veteran was actually exposed to Agent Orange in service. In a September 2004 substantive appeal of his own service connection claim, the Veteran himself stated that "I was a supply sergeant traveling through exposed (sprayed) areas 3 times a week for 7 months, along the DMZ. Morning reports will reveal my duties as a supply sergeant along the DMZ." At a February 2004 hearing before a Decision Review Officer (DRO), the Veteran testified that he was assigned to a town that was between division headquarters and the DMZ. He performed courier duties that involved driving up to a unit site at the DMZ in the morning to pick up information on the North Korean operation that had been collected the day and night before. He would bring this information back to the division area to which the security agency was attached. He also testified that he had received hazard duty pay for this service. (The appellant has submitted pay voucher copies that appear to show the receipt of hazard pay. Unfortunately, the identifying information was written too lightly to appear on the photocopy.) The claims file contains an "Imjin Scouts DMZ Certificate" with the Veteran's name, rank, Social Security Number, and unit assignment. This certificate states that "THE IMJIN SCOUT INSIGNIA IS AWARDED TO [THE VETERAN] Co A, Army Security Agency FOR COMMENDABLE PARTICIPATION IN OPERATIONAL MISSIONS ALONG THE DEMILITARIZED ZONE, KOREA, SEP 1969." Also of record is a March 2004 statement from a fellow serviceman who attested that he "frequently rode with [the Veteran] on his courier run into the [DMZ] to units located in the front lines inside the DMZ. There is no doubt that he spent a lot of time in areas that had been treated with herbicide." At her September 2010 Board hearing, the appellant testified that the Veteran "was stationed in Yong Dong Po, but that's not the area where the Agent Orange had been used. He was in Army Security Agency and ... while in Korea, he ran a courier. That's why we have this problem, because he didn't have orders to that area. He ... had orders to the area he was assigned, but he ran a courier." She reported that he had told her "there was nothing alive, nothing living there. You know, no ... [v]egetation." Following a thorough consideration of this evidence, the Board finds that, resolving reasonable doubt in favor of the appellant, the Veteran's duties while serving in Korea involved frequent trips to the DMZ. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). While the personnel records on file do not contain much detail of his service in Korea, the information that is on file is consistent with the statements that were made by the Veteran and his friend. In particular, the Board finds the Veteran and his friend's description of the Veteran's courier duties to be consistent with his receipt of the Imjin Scouts Certificate and his confirmed assignment with the Army Security Agency in Korea from March 1969 to June 1970. The Board further finds the appellant's assertions regarding the Veteran's receipt of hazard pay for his Korea service to be credible. Finally, the Board notes that there is no evidence of record that affirmatively demonstrates the Veteran was not exposed to Agent Orange during service. The Board will therefore resolve reasonable doubt in favor of the appellant and find that the Veteran was at least as likely as not exposed to Agent Orange in service. Having resolved reasonable doubt in favor of the Veteran's in-service herbicide exposure, the Board finds that entitlement to service connection for the cause of the Veteran's death is warranted under 38 C.F.R. § 3.309(e) and 38 C.F.R. § 3.312. Specifically, as noted above, multiple myeloma is one of the disabilities that is entitled to presumptive service connection based on herbicide exposure under 38 C.F.R. § 3.309(e). The evidence of record clearly establishes that the Veteran died from multiple myeloma. 38 C.F.R. § 3.312. Therefore, entitlement to service connection for the cause of the Veteran's death is warranted. In reaching this conclusion, the Board acknowledges that the Veteran's claim of service connection for multiple myeloma based on herbicide exposure was denied in a July 2005 Board decision. The Board notes, however, that it is generally not bound by dispositions of claims during the Veteran's lifetime when considering a survivor's claim for benefits. See 38 C.F.R. § 20.1106 (2010). Furthermore, the current decision rests in large part on changes to the applicable regulations and the weighing of evidence. With respect to the former, the Board notes that, at the time of the July 2005 Board decision, DoD had indicated that the herbicide Agent Orange had been used in Korea from April 1968 through July 1969 along the DMZ. See, e.g., VHA Directive 2000-027 (Sept. 5, 2000). The July 2005 Board denial relied in part on the observation that the majority of the Veteran's Korea service, including that which was indicated on the Imjin Scouts Certificate, occurred when herbicides were no longer being sprayed along the DMZ. As noted above, the new 38 C.F.R. § 3.307(a)(6)(iv) has expanded the relevant period to between April 1, 1968, and August 31, 1971. This expanded period now clearly encompasses the Veteran's performance of courier duties in Korea. Concerning the latter, the Board notes that the current claim has benefited from changes that have been made through case law in how VA approaches the weighing of lay evidence. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a veteran is competent to report factual matters of which he had first-hand knowledge). While the Veteran's service with Company A of the Army Security Agency still does not allow VA to presume that he was exposed to Agent Orange, the Board is currently able to weigh the evidence in such a manner as to demonstrate that the Veteran was actually exposed to Agent Orange while serving in Korea. As such, the current Board decision grants greater probative weight to the credible assertions of the Veteran's and his friend regarding the circumstances of the Veteran's service in Korea. III. Burial Benefits Surviving spouses are entitled to burial allowances at differing rates when certain conditions are met. If a veteran's death is the result of service-connected disability, burial benefits not to exceed the amount specified in 38 U.S.C.A. § 2307 (West 2002) are warranted. 38 C.F.R. § 3.1600(a) (2010). In this case, the appellant filed a claim for payment of burial benefits in January 2007. These benefits were denied in an August 2007 letter because the Veteran was not in receipt of Compensation or Pension benefits at the time of his death. As discussed above, however, the evidence establishes that the Veteran died as a result of a service-connected disability. As such, the Board finds that the criteria for entitlement to service-connected burial benefits under 38 U.S.C.A. § 2307 are now met. IV. Accrued Benefits Applicable law and regulations provide that, upon the death of a veteran or beneficiary, periodic monetary benefits to which that individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of his/her death (accrued benefits) and due and unpaid shall, upon the death of such individual, be paid to the specified beneficiaries, the first of which is the veteran's spouse. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). A claim for such benefits must be filed within one year of the veteran's death. 38 C.F.R. § 3.1000(a), (c). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit concluded that, for a surviving spouse to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." See also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application). The term 'pending claim' means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c) (2010). The term 'finally adjudicated claim' means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. § 3.160(d) (2010); see also 38 C.F.R. §§ 20.1103, 20.1104 (2010). In the case at hand, the Veteran's claims of entitlement to service connection for multiple myeloma and diabetes mellitus type II were denied in an August 2003 rating decision. The Veteran perfected an appeal of these denials. These claims were subsequently denied by the Board in a July 2005 decision. Board decisions are considered final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100 (2010). The multiple myeloma and diabetes mellitus claims have therefore been finally adjudicated, and no unadjudicated claims were otherwise pending at the time of the Veteran's death. In short, the Veteran had no pending claim for VA benefits at the time of his death in March 2006. The existence of such a claim is a prerequisite to entitlement to accrued benefits. Absent such a claim, there is no basis for entitlement under 38 U.S.C.A. § 5121(a). Overall, it is the law and not the evidence that is dispositive in this case. Lacking legal merit, the claims of entitlement to accrued benefits for multiple myeloma and diabetes mellitus type II must be denied. See generally Sabonis v. Brown, 6 Vet. App. 426 (1994). V. 38 U.S.C. § 1318 In light of the award of service connection for the cause of the Veteran's death, consideration of the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 is no longer warranted. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2010). Therefore, the appeal as to this issue is dismissed as moot. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to service-connected death burial benefits is granted, subject to the laws and regulations governing the payment of burial benefits. Entitlement to service connection for multiple myeloma, claimed as due to exposure to herbicides, for accrued benefits purposes is denied. Entitlement to service connection for diabetes mellitus type II, claimed as due to exposure to herbicides, for accrued benefits purposes is denied. Entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs