Citation Nr: 1308046 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-44 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee 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 J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1962 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Nashville, Tennessee. In January 2012, this matter was remanded by the Board for further development. Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review. FINDINGS OF FACT 1. The Veteran died in February 2006. The death certificate reflects that the immediate causes of death were myocardial infarction, atherosclerotic heart disease, and diabetes mellitus. 2. At the time of the Veteran's death, he was not service-connected for any disabilities. 3 The Veteran did not serve for any time ashore in the Republic of Vietnam or in the inland or "brown" waterways; exposure to herbicides while serving on active duty may not be presumed, and there is no evidence of actual herbicide exposure. 4. The causes of the Veteran's death have not been shown to be etiologically related to any disease, injury, or event in service, to include herbicide exposure, or any service-connected disability; presumptive service connection under 38 C.F.R. § 3.309(e) is not for application. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. See 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the appellant's claim for service connection for the cause of the Veteran's death, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the United States Court of Appeals for Veterans Claims (Court) held in Hupp v. Nicholson that 38 U.S.C.A. § 5103(a) notice for dependency and indemnity compensation (DIC) cases (including claims for service connection for the cause of a veteran's death) generally must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his 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. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Court also held in Hupp that where a claimant submits a non-detailed DIC application, VA is not obligated to inform the claimant of the specific reasons why any claim made during the deceased Veteran's lifetime was not granted. See id. The RO sent an October 2009 VCAA letter to the appellant. In January 2012, however, because the Veteran's claim was not readjudicated after the issuance of the October 2009 VCAA letter, the Board remanded the Veteran's claim, and subsequently an October 2010 VCAA letter was sent to the Veteran and his claim was readjudicated by way of a March 2012 Supplemental Statement of the Case (SSOC). Based thereon, the Board finds that there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the October 2009 and October 2010 VCAA letters substantially satisfy the notice requirements of the VCAA and Hupp. The letters explained that evidence was required showing that a service-connected disability or an injury or disease that was incurred in or aggravated by service was the principal or contributory cause of the Veteran's death. The letters also advised the appellant that the Veteran was not service-connected for any disabilities at the time of his death, and of her and VA's respective responsibilities under the VCAA. The appellant's claim was subsequently readjudicated by way of an October 2012 Supplemental Statement of the Case, such that any issue as to the timeliness of the latter notice is harmless. Because service connection is denied herein, any questions as to the appropriate effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). All of the Veteran's service treatment and personnel records, VA treatment records, and private treatment records have been associated with the claims file. The Board finds that the record contains sufficient evidence to make a decision on the claim. In this regard, the Board notes that the RO has undertaken significant development in an attempt to verify whether the Veteran ever had any service in Vietnam (so as to qualify for presumptive service connection under 38 C.F.R. § 3.309(e)). The RO sent requests to NPRC, as well as DPRIS/JSRRC, which in turn inquired with the Naval Historical Center Ship History Branch and the National Archives. The Board acknowledges that the appellant's representative has requested that another attempt at verification be made by requesting copies of any port supply record or logs from the Nha Trang and Da Nang naval bases as well as a copy of the USS Perkins' cruise book. As noted in the DPRIS report, however, the command history and deck logs/muster roll/personal diaries are the only administrative records relating to commissioned ships during the Vietnam era that are permanently maintained. Furthermore, the Board has conceded that the Veteran's vessel was docked in Vietnam, including near Da Nang. Therefore, a remand for these records would not serve any useful purpose and would only serve to delay a final adjudication of the appellant's claim. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges that no VA medical opinion has been obtained relating to the appellant's claim. The Board finds, however, that no VA medical opinion is required because there is no competent evidence tending to indicate an etiological relationship between any of the causes of the Veteran's death and his service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010); Duenas v. Principi, 18 Vet. App. 512 (2004). While the Board acknowledges that the appellant has alleged that the Veteran was exposed to Agent Orange in service that caused his death, the Board notes that lay persons such as she are not competent to etiologically link diabetes mellitus or atherosclerotic heart disease to herbicide exposure over 40 years prior, which requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For this reason, and as no other theory of entitlement has been suggested by the appellant or the evidence of record, VA's duty to provide a medical opinion to clarify whether the disability that caused the Veteran's death was related to service is not triggered. See also Wells v. Principi, 326 F. 3d 1381 (Fed. Cir. 2003); Robinson v. Mansfield, 21 Vet. App. 545 (2008) (holding that the Board is not obligated to investigate all possible theories of entitlement, or to provide a medical examination or opinion exploring every possible theory; rather, the duty to obtain an examination or opinion is explicitly limited to investigating theories of entitlement for which there is already some evidence in the record that satisfies the criteria of McLendon). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, the Board will proceed to a decision on the merits. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for disability (or death) that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a) (2012). To establish entitlement to service connection for the cause of a veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2012). The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312(c) (1). In the case of veterans who have been exposed to an herbicide agent during active service, 38 C.F.R. § 3.309(e) provides for presumptive service connection for certain listed diseases, including atherosclerotic cardiovascular disease and diabetes mellitus. A veteran who "during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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." 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld the VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring proof of some duty or visitation onshore in Vietnam. In June 2010, VA issued a document, "Compensation and Pension Bulletin,"that lists certain vessels identified as traveling in the "brown waters" of Vietnam or that docked to the shore. The Bulletin explained that in the case of a ship with a confirmed dpcking to the shore (i.e., a Blue Water naval veteran), the Veteran must also provide a statement that he went ashore to be eligible for presumed herbicide exposure. See also Amended Version, November 2012. A December 2012 Notice, however, provides that the Secretary determined that "the presumption [of herbicide exposure only] applies to those who served in the Republic of Vietnam on the ground (ground troops) or on its inland waterways (Brown Water Navy Veterans). Veterans who served in deep-water naval vessels off the coast of Vietnam during the Vietnam War are referred to as Blue Water Navy Veterans," and the evidence "does not support establishing a presumption of exposure to herbicides for Blue Water Navy Vietnam Veterans. [But] VA will continue to accept and review all Blue Water Navy Vietnam veteran claims based on [claimed] herbicide exposure on a case-by-case basis." See Notice Department of Veterans Affairs, Presumption of Exposure to Herbicides for Blue Water Navy Vietnam Veterans Not Supported, 77 Fed. Reg. 76170 (Dec. 19, 2012). "Service members who are not entitled to the presumption of [herbicide] exposure [based on service in the Republic of Vietnam] are nonetheless entitled to show that they were actually exposed to herbicides." Haas v. Peake, 525 F.3d 1168, 1193 (Fed. Cir. 2008) (citing 38 C.F.R. § 3.309(e)); see also Combee v. Brown, 5 Vet. App. 248 (1993). The Veteran served on active duty from January 1962 to March 1966 in the Navy. In February 2006, the Veteran died. His death certificate shows that the immediate causes of death were myocardial infarction, atherosclerotic heart disease, and diabetes mellitus. The appellant is his widow. She asserts that the causes of the Veteran's death, particularly his diabetes, are the result of in-service Agent Orange exposure. The Board also finds implicit in this case that she alleges that the Veteran's atherosclerotic heart disease was caused by in-service Agent Orange exposure. As an initial matter, at the time of the Veteran's death, he was not service connected for any disability. As noted above, the death certificate reflects that the Veteran's cause of death was a myocardial infarction due to atherosclerotic heart disease and diabetes mellitus, which diseases are included in the 38 C.F.R. § 3.309(e) list of diseases for which presumptive service connection may be granted based on herbicide exposure. Therefore, the centrifugal question in this case is whether the Veteran was exposed to herbicide agents in service so as to qualify for presumptive service connection under 38 C.F.R. § 3.309(e) for atherosclerotic heart disease or diabetes mellitus, the underlying causes of his death by myocardial infarction listed on his death certificate. With regard to whether exposure to herbicide agents may be presumed in this case under 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii) based on service in the Republic of Vietnam, the Board notes as an initial matter that the Veteran has never reported that he ever served in country in Vietnam or otherwise set foot in Vietnam. The Veteran's service records reflect that he served aboard the USS Perkins from around May 1963 to March 1966. A list provided in the June 2010 Compensation and Pension Service Bulletin, updated most recently in November 2012, of naval vessels that operated temporarily on the inland or brown waterways of Vietnam or docked to the shore includes the USS Perkins, but only with regard to operating on inland Ganh Rai Bay during October 1967 and on the Saigon River in June 1969. The Board adds that a DPRIS response dated in September 2009 reflects that the annual command history for the USS Perkins for 1965 was missing from the Naval Historical Center Ships History Branch in Washington, DC, and that the deck logs/muster rolls/personnel diaries from March to August 1965 were missing from the National Archives. The DPRIS report also reflects that the command history and deck logs were the only types of records maintained by commissioned ships. The Board does, however, acknowledge several letters (with postmarked envelopes) written by the Veteran to the appellant in July 1965 that she submitted in evidence. A letter dated July 16, 1965 reflects that the Veteran wrote that his ship was docked in a harbor just outside of Da Nang in order to pick up a Vietnamese officer. In that regard, the Board notes that the Veteran's report in his letter of the USS Perkins's whereabouts tends to be corroborated by the September 2007 reply from NPRC (in response to a request for confirmation of any service in Vietnam), which reflects that the USS Perkins was in the official waters of Vietnam from July 16, 1965 to July 31, 1965. While the Board will concede in this particular case that the Veteran was docked at a harbor near Da Nang on July 16, 1965, the Veteran did not report in his letter having set foot ashore, which the appellant herself essentially conceded in her July 2009 statement in support of her claim ("they pulled into Da Nang July 16, 1965 but I don't think anyone left the ship. . .I was going by the letters he sent to me."). Although the Board acknowledges that she asserted in her April 2007 notice of disagreement and her November 2009 Form 9 appeal that the Veteran went ashore in Vietnam ("Veteran was exposed to Agent Orange while ashore in Da Nang" and "Glen went ashore in the RVN"), the Board finds that these brief notations in her notice of disagreement and Form 9 are overwhelmingly outweighed by the probative value of the content of the contemporaneous letter written by the Veteran himself, and that the probative value of her assertion is diminished by her contradictory July 2009 statements. The Board also acknowledges that in a July 25, 1965 letter, the Veteran wrote that he had been in battle stations all day and that he shelled a beach in Vietnam. Also, in a July 28, 1965 letter, the Veteran wrote that he was in port all day in Nha Trang ("La Trang") and that he was not sure if he had a firing mission for that night or if they would be pulling out the next day. While both of these letters indicate that the Veteran was either anchored or docked in Vietnam, again, none of these letters reflect that the Veteran ever reported having gone on shore. As discussed above, while the Board acknowledges that the appellant asserted in her notice of disagreement and Form 9 appeal that the Veteran went ashore in Vietnam, the Board finds that these brief statements are by far outweighed by the probative value of the content of the contemporaneous letter written by the Veteran himself, and because the appellant's assertion contradicts her more detailed statement that she was not sure whether the Veteran set foot in Vietnam in her July 2009 letter. Also, the Board acknowledges that the appellant in her July 2009 letter wrote that "he was in La Trang on July 27, 1965," again, the Board notes that she herself went on to explain in her letter that she was merely relying on the letters written by the Veteran himself, which, as explained above, do not reflect that he ever reported having set foot in Nha Trang or any other place in Vietnam. The Board further acknowledges that the Veteran's DD Form 214 reflects that he is the recipient of the Vietnam Service Medal. The Board notes, however, that his receipt of this medal does not constitute conclusive evidence of service in Vietnam for presumptive herbicide exposure purposes. See Exec. Order No. 11231 (July 8, 1965) (establishing award of the Vietnam Service Medal "to members of the armed forces who serve[d] in Vietnam or contiguous waters or air space"). In light of all of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran ever set foot in Vietnam or served in any inland or brown waterways so as to allow for presumptive herbicide exposure (and, therefore, presumptive service connection for diabetes mellitus and atherosclerotic heart disease). As noted above, the appellant is not precluded from proving actual exposure of the Veteran to herbicides in service. With regard to whether there is proof of actual exposure, the Board notes that the Veteran never asserted that he was exposed to any herbicide agents in service, and there is no indication of any such exposure in any of the evidence of record except for the lay statements made by his widow (e.g., in her notice of disagreement and Form 9 appeal) in which she asserts that he was exposed to Agent Orange in Vietnam. For the reasons discussed above, however, the Board finds that the preponderance of the evidence is against a finding that the Veteran served on shore in Vietnam, and there is otherwise no evidence in the claims file indicating that the Veteran had actual exposure to herbicides in service. Therefore, the Board finds that the preponderance of the evidence is against a finding of actual exposure to herbicides in service. As a final matter, the Board will address whether there is otherwise evidence that the Veteran's causes of death, atherosclerotic heart disease and diabetes mellitus, were otherwise related to service. The Board acknowledges that the Veteran's Social Security Administration (SSA) records reflect that he was awarded disability effective July 1999. None of these records, however, indicate that the Veteran's atherosclerotic heart disease or diabetes mellitus was related to service. A March 2000 SSA physical evaluation report reflects that the Veteran had hypertension since 1989, that he was later found to have atrial fibrillation, and that he had diabetes without complication, but no etiological opinion was provided. Also, with regard to the Veteran's diabetes mellitus, private treatment records in the claims file reflect diagnosed diabetes mellitus since November 1999, but the only etiological opinion of record is a December 1999 endocrinology consultation report from Dr. B.L. in which he opined that the Veteran's elevated blood sugars were caused by thyrotoxicosis due to his diagnosed Graves disease. With regard to the Veteran's atherosclerotic heart disease, private treatment records in the claims file reflect diagnosed hypertension since 1989, as well as hyperlipidemia since October 1999. See SSA Physical Evaluation Report, March 2000; Private Treatment Records, May 1993, January 1996, October 1999. A September 1999 private cardiology record reflects that his cardiac risk factors were his male gender, age, tobacco dependence, and morbid obesity (365 pounds). March 2000 private treatment records reflect that the Veteran complained of chest pain, and that an anterior infarct could not be ruled-out (an impression of atrial fibrillation was also recorded). The Board also acknowledges an August 1999 cardiac ultrasound. None of the private treatment records, however, include any etiological opinion relating the Veteran's atherosclerotic disease to his service. In light of all of the above, the Board finds that a preponderance of the evidence is against a finding that the causes of the Veteran's death, myocardial infarction due to atherosclerotic disease and diabetes mellitus, were in any way related to his service. As shown above, the private treatment records in the claims file reflect that a private physicians opined that the Veteran's elevated blood sugars were related to his diagnosed Graves disease and resultant thyrotoxicosis, and that the Veteran's cardiac risk factors were his gender, age, smoking, and morbid obesity. There is no medical opinion of record linking the Veteran's causes of death to his service. The Board acknowledges the statements made by the appellant alleging a relationship between the cause of the Veteran's death and his service, discussed in detail above, and the Board is sympathetic to the appellant's loss. As discussed above, however, the preponderance of the evidence is against a finding that the Veteran ever set foot ashore in Vietnam so as to qualify for presumptive service connection. The Board emphasizes that it has exercised great care in reviewing the letters written by the Veteran in July 1965 in considering whether the Veteran ever indicated that he set foot ashore in Vietnam, but the Board finds that these letters unequivocally reflect that he never reported having been ashore. To the extent that any of the appellant's statements may otherwise be interpreted to allege any other etiological relationship between the Veteran's atherosclerotic heart disease or diabetes mellitus and his service, the Board finds that as a lay person, the appellant is not competent to etiologically link complex conditions like diabetes mellitus and atherosclerotic heart disease to service over 40 years ago, which requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Also, her alleged Agent Orange exposure is speculative in nature, as there is no evidence of any actual exposure. Therefore, in light of the above, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death. There is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs