Citation Nr: 1133293 Decision Date: 09/08/11 Archive Date: 09/15/11 DOCKET NO. 08-22 704 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1950 to March 1954 and from February 1957 to November 1972. He died on August [redacted], 1990. The appellant is the Veteran's surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in Roanoke, Virginia. It was remanded by the Board for additional development in March 2010. The case has now been returned to the Board for appellate disposition. FINDINGS OF FACT 1. The Veteran's death certificate shows that he died on August [redacted], 1990. The cause of death is listed as pancytopenia due to or as a consequence of acute myelogenous leukemia. 2. Documentation from the Veteran's final hospital stay establishes that the Veteran's pancytopenia was actually secondary to non-Hodgkin's lymphoma. 3. At the time of his death, the Veteran was service connected for right inguinal hernia, flat feet, and bilateral hearing loss, all rated noncompensably disabling. 4. There is no evidence that the Veteran's service connected disabilities caused or contributed to his death. 5. During the Veteran's service he received the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. However, there is no credible evidence that he actually set foot on land in Vietnam. 6. The Veteran was stationed at U-Tapao Air Base from approximately March 1968 to April 1969. There is no evidence that the Veteran's duties required him to approach the perimeter of the base. 7. There is no competent evidence that the Veteran was actually exposed to herbicides during his service. 8. Non-Hodgkin's lymphoma was not shown to be present within a year of the Veteran's discharge from military service 9. There is no objective evidence that the Veteran's non-Hodgkin's lymphoma or pancytopenia were related to the Veteran's military service. CONCLUSION OF LAW The Veteran's death was not caused by a disease or injury incurred in or aggravated by service, nor did any such disease or injury contribute substantially or materially to his death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations require VA to notify claimants of what is necessary to establish their entitlements to the benefits sought and to assist them in obtaining the evidence necessary to substantiate their claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). 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 her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b) (1) (2008). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Pelegrini, 18 Vet. App. at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The Board notes that 38 C.F.R. § 3.159 was recently amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 38 C.F.R. § 3.159 (2008). The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 3120. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In the context of a claim for death indemnity compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, section 5103(a) notice must be tailored to the claim. The notice should 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed application of the specific reasons why any claim made during the deceased Veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 at 352-353 (2007). In this case, the claimant was sent a letter in July 2006 which explained VA's duty to assist her with developing evidence in support of her claim. It also explained that, to establish service connection for the cause of the Veteran's death, the evidence had to show that the condition causing the Veteran's death had its onset in service or was permanently aggravated by the military service. This notice, however, did not fully comply with the requirements that were set forth in Hupp. Therefore, the claimant was sent another letter in March 2010 which explained what was necessary in order to establish service connection for the cause of the Veteran's death based on a previously service connected disability as well as what the evidence needed to show in order to substantiate a DIC claim based on a condition that was not yet service connected. An additional letter that was sent to the claimant in April 2011 informed her what disabilities the Veteran was service connected for at the time of his death. It also again explained what was necessary to substantiate a DIC claim based on disabilities that were service connected during the Veteran's lifetime as well as based on disorders that were not yet service connected at the time of the Veteran's death. The April 2011 letter also provided information about VA's duty to assist the claimant with obtaining evidence in support of her claim. Her claim was subsequently readjudicated in a May 2011 supplemental statement of the case (SSOC), thereby curing any pre-decisional notice error. In addition to its duty to provide the above described notices to the claimant, VA has a duty to assist her with obtaining evidence in support of her claim. In this case, VA has evidence including the Veteran's service treatment records, his service personnel records, his death certificate, records pertaining to his final hospital stay prior to his death, and the written contentions of the claimant. There is no indication that other evidence exists that is relevant to this claim. For these reasons, the Board finds that VA satisfied its duties pursuant to the VCAA in this case. II. Prior Remand This case was remanded by the Board in March 2010. An appellant has a right to substantial compliance with the instructions that are set forth in a Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); See also Dyment v. West 13 Vet. App. 141, aff'd sub nom Dyment v. Principi, 287 F.3d 1377, 147 (2002) (remand not required under Stegall where Board's remand instructions were substantially complied with). In this case, the Board's April 2010 remand instructed that (1) the claimant be provided with the notice required by Hupp, (2) that she be requested to provide any correspondence or other documentation in her possession indicating that her late husband performed duty in Vietnam; (3) that the Veteran's complete personnel file be obtained, and (4) that the Veteran's claim be readjudicated. The claimant was provided Hupp-compliant notice in the above described April 2011 letter. She was also specifically requested to provide any information in her possession about any of the Veteran's claimed duty or service in Vietnam by letter in March 2010. The March 2010 letter also contained some of the notice elements that were required by Hupp although fully compliant notice was not provided until April 2011. The record reflects that the Veteran's complete personnel file was obtained and associated with the claims file. The appellant's claim was thereafter readjudicated in a May 2011 SSOC. Therefore, there was substantial compliance with the instructions that were set forth in the March 2010 remand. Service Connection for the Cause of the Veteran's Death The appellant contends that the Veteran died as a result of non-Hodgkin's lymphoma due to exposure to herbicides while serving in Thailand during the Vietnam War. She contends that the Veteran performed temporary duty in Vietnam while he was stationed in Thailand. Service connection may be granted for the cause of the Veteran's death if a disorder incurred in, or aggravated by, service either caused or contributed substantially or materially to the cause of death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death; rather, it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The Veteran's death certificate indicates that he died on August [redacted], 1990 of pancytopenia due to or a consequence of acute myelogenous leukemia. However, substantial documentation from the Veteran's final hospitalization at the Naval Hospital in Portsmouth, Virginia, including an August [redacted], 1990 narrative summary of the Veteran's treatment, indicated that his pancytopenia was actually a result of non-Hodgkin's lymphoma. According to the narrative summary, the Veteran was admitted to the hospital on July 9, 1990 for treatment of pancytopenia which was found to be consistent with malignant non-Hodgkin's lymphoma. The Veteran eventually developed a left subdural hematoma, brain swelling edema, and cerebritis. The Veteran never regained consciousness after surgery to evacuate a hematoma. On August [redacted], 1990 he experienced respiratory arrest secondary to his advanced diseases and died. At the time of his death the Veteran was service connected for a right inguinal hernia, flat feet, and bilateral hearing loss, all rated noncompensably disabling. The claims file does not contain any indication that any of these disabilities in any way caused or contributed to the Veteran's death, nor does the appellant so claim. Rather, as noted above, her contention is that the Veteran developed non-Hodgkin's lymphoma as a result of exposure to herbicides during the Vietnam War. Therefore, it must be determined whether the evidence supports a finding that non-Hodgkin's lymphoma was incurred as a result of the Veteran's military service. With regard to claims alleging disability due to exposure to herbicides, a Veteran who served in active military, naval, or air service in Vietnam during the Vietnam era is presumed to have been exposed to a herbicide agent during such service, unless there is affirmative evidence that the Veteran was not exposed to any such agent during that service. Service in Vietnam includes service in the waters offshore Vietnam and service in other locations if the conditions of service required the Veteran to perform duty in, or visit, Vietnam. 38 U.S.C.A. § 1116(f), 38 C.F.R. § 3.307(a)(6)(iii). However, service in Vietnam does not include service that took place exclusively in the territorial waters offshore Vietnam, if the Veteran never set foot on land there. See Haas v. Peake, 544 F.3d 1306, 1308-1309 (Fed. Cir. 2008), cert. den. 129 S.Ct. 1002 (2009). If a Veteran was exposed to a herbicide agent, certain diseases listed at 38 C.F.R.§ 3.309(e) will be considered service connected even though there is no record of such disease in service. These diseases include non-Hodgkin's lymphoma. 38 C.F.R. § 3.309(e). Absent application of a herbicide presumption, service connection may alternatively be established with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). On her substantive appeal form dated in July 2008, the appellant wrote that her husband "transited through Vietnam" on various occasions. She contended that he performed temporary duty in Saigon and at other locations in Vietnam. She also contended that the Veteran was exposed to herbicides at U-Tapao Airfield. The appellant contends that she knew this because of letters that she received from her husband while he was stationed in Thailand from March 1968 to April 1969. Although the appellant was requested to provide copies of these letters, or any other documentation in her possession showing that the Veteran performed duty or service in Vietnam, she failed to do so. The Veteran's service personnel records reflect that he was stationed at U-Tapao Airfield between March 1968 and April 1969. He served as an Operations Support Officer with the Bombardment Wing, Navigation Branch, 4258th Strategic Wing. He was aircrew on B-52s on 25 combat missions over Vietnam and he accumulated 130 combat hours between March 1968 and March 1969. His DD-214 reflects that he received the Republic of Vietnam Campaign Medal and the Vietnam Service Medal. However, it also reflects that while the Veteran served in Indochina he did not actually serve in Vietnam. Certain Veterans who were stationed in Thailand during the Vietnam War era will be presumed to have been exposed to herbicides. These consist of Veterans who performed duty on and around the perimeter of certain Thai airfields where herbicides were used to clear vegetation. M21-MR.IV.ii.2.C.10.q. While U-Tapao Airfield is one of the locations where it is recognized that herbicides were used, there is no evidence that the Veteran's duties involved approaching the perimeter of the base. Veterans with certain occupations such as security policeman, security police dog handler, and security police squadron member are recognized to have performed duty around the perimeter of the base. Veterans with other military occupational specialties may factually show that their service involved duty on the base perimeter. In this case, there is no evidence that the Veteran's service as an Operations Support Officer involved duty on the perimeter of U-Tapao Airfield. While the appellant alleges that the Veteran wrote her letters indicating that he was somehow exposed to herbicides in Thailand, this does not establish that his service involved duty on the perimeter of U-Tapao Airfield or that he was otherwise exposed to herbicides in Thailand. Notably, the appellant has no firsthand knowledge of the facts and circumstances of the Veteran's service in Thailand. There is also no evidence that the Veteran's service in Thailand involved duty or service in Vietnam. While the Veteran flew on combat missions over Vietnam, this does not constitute service in Vietnam unless he actually set foot on land there. VAOGCPREC 7-93. In this precedential opinion, VA General Counsel determined that military missions flown in Vietnamese airspace were not considered to be included in the term "duty or service in Vietnam" for purposes of 38 C.F.R. § 3.313. Consequently, service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace would not be considered to be included in the phrase "service in Vietnam" as used in 38 C.F.R. § 3.313. Id. The Board is legally bound by this interpretation. 38 U.S.C.A. § 7104. While the appellant contends that the Veteran went on temporary duty in Vietnam, this is not supported by his personnel records, which do not show any such duty. The appellant's bare contention, first advanced in her substantive appeal, that the Veteran told her that he performed duty in Vietnam is insufficient to establish that he actually served in Vietnam absent some corroboration from his service records or elsewhere. However, the appellant was not able to provide any documentation in support of her contention, and the Veteran's service records do not document any temporary duty or other service in Vietnam. The Board acknowledges that the Veteran's Officer Effectiveness Report (OER) for the period of July 1968 to March 1969 was voided by the Officer Personnel Review Board and is not in his personnel file as it was destroyed, but the lack of documentation of the Veteran's performance during this period does not establish that he had any duty in Vietnam. A claimant may also show that a Veteran was in fact exposed to herbicides, even if the presumption of exposure does not apply. However, in this case there is no credible evidence that the Veteran was actually exposed to herbicides. The appellant's bare contention that her husband indicated that he was exposed to herbicides in letters to her, without any specifics regarding the facts and circumstances of the claimed exposure, is insufficient to establish that the Veteran was actually exposed to herbicides. Since the facts do not establish that the Veteran was exposed to herbicides in service, there is no basis for presumptive service connection for non-Hodgkin's lymphoma. However, a relationship to service may still be established on a direct basis. In this case, such a relationship is not shown. The Veteran's service treatment records do not show any diagnosis of, or treatment for, non-Hodgkin's lymphoma or pancytopenia. There is no evidence that non-Hodgkin's lymphoma was present within a year of the Veteran's retirement from active service. These disorders were not diagnosed or otherwise demonstrated until approximately 18 years after the Veteran's service. The record does not contain any evidence of continuity of symptoms or medical evidence indicating that there is any nexus between anything that occurred during the Veteran's service and his eventual development of non-Hodgkin's lymphoma and pancytopenia. Notably, the only theory advanced by the appellant was that the Veteran's alleged exposure to herbicides caused his illness. However, as set forth above, the evidence fails to show that any such exposure occurred. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the appellant's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs