Citation Nr: 1301295 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 05-15 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Jeffrey J. Bunten, Attorney at law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from January to May 1967, and from October 1967 to October 1969. He served in Korea from October 1968 to October 1969. He died in September 1995. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the St. Louis, Missouri, Department of Veterans Appeals (VA) Regional Office (RO), which denied service connection for the cause of the Veteran's death. In December 2005, the Board remanded the instant claim for the conduct of a Travel Board hearing. The Travel Board hearing was held in September 2006 before a Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. In July 2009, the appellant was notified that the VLJ before whom she testified in September 2006, was no longer employed by the Board. She was given 30 days to decide whether she desired another Board hearing before another VLJ. The 30 days expired without a response from the appellant regarding whether she desired an additional Board hearing. By decision of October 2009, the Board denied service connection for the cause of the Veteran's death. The appellant appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). By an August 2010 Order, the Court vacated the Board's decision and remanded the matter to the Board for compliance with instructions contained in an August 2010 Joint Motion for Remand of the appellant and the VA Secretary. The Board remanded the instant claim in January 2011 for further development. The case is now ready for appellate review. FINDINGS OF FACT 1. The certificate of death indicates that the Veteran died in September 1995 from systemic amyloidosis due to or as a consequence of multiple myeloma. 2. At the time of the Veteran's death in September 1995, he was 51 years of age and service connection had not been established for any disability. 3. The competent and credible evidence fails to demonstrate that the cause of death listed on the Veteran's death certificate was incurred in or related to his military service, or manifested to a compensable degree within one year thereof, or that a service-connected disability caused or substantially or materially contributed to the Veteran's death. 4. The Veteran served in Korea for one year from October 1968 to October 1969, and there was no competent or credible evidence which showed the Veteran was in close proximity to the DMZ or that he was exposed to herbicide agents at any time during his service in Korea. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (a)(6)(iv), 3.309, 3.312(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the context of a claim for DIC benefits, § 5103(a) notice must 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, 352-53 (2007). This claim initially was before the Board based on new and material evidence. New and material evidence was received with respect to the claim and was reopened. It therefore was reviewed on a de novo basis, with consideration given to all the evidence of record. Neither the appellant nor her representative has alleged prejudice with respect to notice, as is required. See Shinseski v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet.App. 128 (2008). None is found by the Board. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination or opinion when necessary. See 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159 (2011). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, it is important to note that during the lengthy pendency of this appeal, the appellant has clearly set forth that the sole basis for her claim is that the Veteran's death from multiple myeloma, a presumptive disease attributable to herbicide exposure, is based on his exposure to herbicides during his service in Korea. She has assistance with private counsel, and the Veteran's service treatment and personnel records were collected. All known available evidence and information has been collected. There remains no known evidence which might substantiate the claim but which has not been sought or collected for review. In this regard, the Board points out that the claim has been remanded to the US Army and Joint Services Records Research Center (JSRRC) to attempt to obtain information as to whether the Veteran was ever physically close in proximity to the demilitarized zone (DMZ) where herbicide agents were used. The Board requested on remand, unit/organizational histories of the 8th Army in Korea from October 1968 to October 1969, and the same histories for Kwang Ju Air Force Base, Korea, from October 1968 to October 1969, where he had been treated for pharyngitis in service and where he underwent his separation examination. Although the RO forwarded this request on remand to the JSRRC, the request was overbroad in nature and scope as to the request for the 8th Army in Korea for a one year period of time. The Board determined that such a large quantity of records could in no way assist in corroborating her claim. The Board then denied the claim. The appellant appealed the claim to the Court, and the Court vacated the Board's October 2009 decision. A Joint Motion for Remand was issued for compliance with the instructions contained within, specifically, requesting the JSRRC to conduct a review of only the Veteran's USA Engineer District, Far East (USAED-FE) unit history records from October 1968 to October 1969, and whether those records could confirm that the Veteran or his engineering unit were assigned to support personnel that participated on an as need basis, in any of the various construction projects within the DMZ during that time period. The JSRRC searched for those records and a Formal Finding was made in May 2012. Also, previously the appellant testified at a Travel Board hearing before a VLJ with the assistance of her private counsel in September 2006. She was also notified that the VLJ who held the Travel Board hearing in September 2006, was no longer employed by the Board, and she was provided the opportunity to set forth her contentions during another Board hearing before another VLJ. She did not respond within the 30 days provided to determine her desire for a hearing. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection for the Cause of the Veteran's Death In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to 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 else 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, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service-connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. In those cases, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If at least one of the diseases deemed chronic for VA purposes, to include malignant tumors, becomes manifest to a degree of 10 percent or more during the one-year period immediately following a veteran's separation from service, the condition may be presumed to have been incurred in service, notwithstanding that there is no inservice record of the disorder. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As is relevant here, if a veteran was exposed to an herbicide agent during active military service, the following diseases shall be service-connected, subject to the requirements of 38 C.F.R. § 3.307(a) , even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, all chronic B-cell leukemias, Type II diabetes mellitus, Hodgkin's disease, ischemic heart disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2) (West 2002); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2012). Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 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). In this case, the Veteran died in September 1995. According to his death certificate, the cause of death was systemic amyloidosis, due to or as a consequence of multiple myeloma. The death certificate indicates that an autopsy was not performed. At the time of his death, the Veteran was not service connected for any disability. Service treatment records (STRs) do not reflect treatment or diagnoses related to any cancer or blood disease. The evidence of record does not show that the Veteran had any cancer within one year of service discharge. Put another way, there is no evidence of systemic amyloidosis or multiple myeloma or residuals thereof, during the Veteran's active service. Importantly, though, there is still the possibility of presumptive exposure to herbicide due to the Veteran's service in Korea from 1968 to 1969. A provision expanding the herbicide presumption was instituted for certain Veterans who served in Korea along the DMZ. See 76 FR 4245 (January 25, 2011). 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. A Veteran who, during active military, navy, 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. These amendments are 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. 76 FR 4245 (January 25, 2011) There is a list of units that have been recognized by the Department of Defense (DOD) as having served in areas along the Korean DMZ. See M21-1MR manual at part IV, subpart II, chapter2, § C.10. p; available at http://vbaw.vba.va.gov/bl/21/M21-1mr_main.htm. The Veteran's unit is not included on this list. At the outset, it is important to note that the appellant does not claim that the Veteran had multiple myeloma in service or within one year thereof and that this caused his death. She primarily maintains that the Veteran's multiple myeloma was a presumptive disease and that he had this disorder due to his exposure to herbicides while serving in Korea in 1968 to 1969 near the DMZ. She stated that as a result of this exposure, this was the cause of his death. In December 2003, the RO contacted JSRRC to determine if the Veteran was exposed to herbicide agents while serving in Korea. In February 2004, JSRRC responded indicating that in 1968 to 1969, the Veteran's unit, USAED-FE was located in Seoul Korea, and the unit worked on construction projects at Kimpo Air Base (AB). According to military records, herbicides were used in Korea between 1967 to 1969 along the southern boundary of the DMZ by the Republic of Korea Armed Forces. The herbicides were applied using hand sprayers and M8A2 trailer mounted decontamination apparatus. According to JSRRC, no US personnel were known to have been actually involved in their application, The records indicated use of herbicides from April to August 1969. Kimpo AB was not near the affected area as it was noted to be 10 to 12 miles from the DMZ. The appellant testified at a Travel Board hearing before a VLJ in September 2006. She testified that the Veteran told her that he helped build Camp Casey while in Korea and other buildings and an airbase, unnamed. She also stated that the Veteran indicated that they ate vegetables and other things grown in Korea, but that they first washed them with Tide detergent and water because they were probably contaminated from different sprays used at that time. She did not specifically cite to herbicides or Agent Orange exposure as the contaminating sprays. She also testified that he spoke of the terrain and the area a lot and that it was dangerous in the area, people were being shot, and she assumed that he was talking about the DMZ. However, she specifically testified that he did not actually state the DMZ, but she assumed he was talking about the DMZ. The appellant related that when the Veteran was ultimately diagnosed with multiple myeloma, his private oncologist asked if he had served in Vietnam, because his condition was attributed to "classic Agent Orange" exposure. In February 2007, the Board remanded the instant claim and requested that the JSRRC ascertain whether Kimpo AB was within the strip of land treated with herbicides from April 1968 to July 1969. A reply was given in July 2007, which indicated, in pertinent, part, that the USAED-FE was stationed in Seoul, Korea, 26 miles from the DMZ. Since the USAED-FE's establishment in 1957, its work involved a wide variety of design and construction projects including complex construction mountain-top sites, sophisticated well-drilling operations all over Korea, and tunnel neutralization projects in the DMZ (Panmunjom). The rest of the findings related essentially the same as was reported in February 2004, that no US personnel were known to have been involved in the application of herbicides. In May 2009, a Memorandum for the Record was associated with the claims file indicating a Formal Finding of inability to corroborate exposure to Agent Orange in Korea. Pursuant to the Board's remand request, the National Personnel Records Center location of the Veteran's personnel file, and findings obtained by the JSRRC, no corroboration was made indicating that the Veteran was exposed to Agent Orange/herbicides while stationed in Korea from October 1958 to October 1969. Pursuant to an August 2010 Joint Remand, additional research of the Veteran's unit, USAED-FE, was made from October 1968 to 1969 to determine whether those records could confirm that either the Veteran or his engineering unit were assigned as support personnel that participated on an as needed basis in any of the various construction projects within the Korean DMZ during that time period. A January 2012 request sent to the JSRRC via the Defense Personnel Records Center Information Retrieval System (DPRIS) indicated in a response that month that there was no mention that the Veteran or his unit were involved in any activity along the DMZ during 1968, or involved in the "use , storage, spraying, or transporting of herbicides." A January 2012 request sent to the NPRC for verification of exposure of Agent Orange proved negative as the response was "no records of exposure to herbicides." A March 2012 request sent to the JSRRC via the DPRIS indicated in a response in May 2012 that there was no mention that the Veteran or his unit were involved in any activity along the DMZ from October 1968 to October 1969. As a result of the aforementioned findings, a May 2012 Formal Finding of inability to further research the Veteran's reported Agent Orange exposure was made. It was indicated that all efforts to verify the issue had been exhausted and any further attempts would be futile. A review of the record shows that the Veteran's cause of death, systemic amyloidosis due to or as a consequence of multiple myeloma did not occur as a result of service or within one year of service discharge. Neither of these conditions were service-connected during the Veteran's lifetime nor were they related to a service-connected disability. It is important to note that the Veteran was not service-connected for any disability during his lifetime. Although there were no findings or diagnoses related to either of the conditions that caused his death while he was in service or anytime thereafter, except at the time of his death, he did, according to his records, serve in Korea, and both conditions were considered presumptive diseases related to herbicide exposure. Moreover, the appellant indicated that the Veteran's private oncologist referred to his multiple myeloma as a "classic Agent Orange" disease. Lengthy research has been performed in connection with this claim in an effort to determine whether the Veteran worked within the DMZ or whether he or his unit were assigned to any projects along the DMZ during his service in Korea from October 1968 to October 1969. The evidence shows that he was stationed in Korea in 1968 and 1969, but he was stationed in areas not along the DMZ or near the affected area. The closest it could be determined that the Veteran was assigned to the DMZ was 10 to 12 miles away. Formal findings of an inability to further research the Veteran's reported Agent Orange exposure was made in May 2012. The evidence showed no finding that he was exposed to herbicides, worked near herbicides, worked in an area in close proximity to where herbicides were used, nor was his unit involved in any activity at or close to the DMZ where herbicides were used. In any event, there is no evidence of record, other than the appellant's statements, that shows that the Veteran's systemic amyloidosis or multiple myeloma, which caused the Veteran's death, was in any way related to service, or to a service-connected disability, nor was it determined that either disease which the Veteran developed was caused or a result of any exposure to Agent Orange/herbicide exposure. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by an appellant are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). ). In this case, the appellant is competent to report the Veteran's symptoms because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470. However, the Board finds the appellant's statements on the etiology of the Veteran's systemic amyloidosis and multiple myeloma and/or the cause of his death, lack competency. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. "Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, the appellant is not competent to provide testimony regarding the etiology of the Veteran's systemic amyloidosis/multiple myeloma. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Because systemic amyloidosis and multiple myeloma are diagnosed by unique and readily identifiable features, neither involves a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's systemic amyloidosis and multiple myeloma is found to lack competency. As such, the Board finds the statements have no probative value in determining whether the Veteran's cause of death is related to service. As for the appellant's allegations that because the Veteran's private oncologist told them that the Veteran's conditions were "classic Agent Orange" and thus, could have substantially and or materially contributed to cause his death, these allegations are not shown anywhere in the medical record, and the appellant is not medically competent to make a finding such as this. Moreover, she admitted during her September 2006 Travel Board hearing that her husband did not actually mention service at or near the DMZ. Since there are no records, medical or otherwise that link these conditions in the Veteran to his service or to his service in Korea, any such linkage of the Veteran's systemic amyloidosis and multiple myeloma and his death to service or to his service in Korea, with no evidence of record indicating such, would be mere speculation on the Board's part. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs