Citation Nr: 1321659	
Decision Date: 07/05/13    Archive Date: 07/12/13

DOCKET NO.  09-37 265A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for cause of the Veteran's death.

2.  Entitlement to Dependents' Educational Assistance (DEA) pursuant to Chapter 35, Title 38, United States Code. 


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

Representative on behalf of Appellant

ATTORNEY FOR THE BOARD

A.M.Clark, Counsel

INTRODUCTION

The Veteran had honorable active service from January 1945 to November 1967.  His awards and decorations include the Purple Heart Medal and Combat Infantry Badge.  The Appellant is his surviving spouse.  The current matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  Jurisdiction of the appeal has been returned to the Nashville, Tennessee RO.

In February 2012, the Board denied entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1318.  The cause of death and Chapter 35 claims were remanded for corrective notice and additional available service personnel records.  The Board finds substantial compliance with the February 2012 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).

The Appellant was afforded a hearing in May 2013.  While she was unable to attend the scheduled hearing due to her declining health, the hearing proceed with her representative.  A copy of the transcript is of record.  Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).  


FINDINGS OF FACT

1.  The Veteran died in October 2008 with no service-connected disabilities.  The death certificate identified the immediate cause of his death as cardio-pulmonary arrest, due to or as a consequence of left lung metastatic non-small cell cancer.  
2.  The Veteran has qualifying service in the Republic of Vietnam and is therefore presumed to have been exposed to herbicides as defined by law.

3.  Lung cancer is recognized by the VA as causally related to exposure to herbicide agents used in Vietnam.

4.  As the Veteran died as a result of a service-connected disability, his surviving spouse meets the basic eligibility requirements for Chapter 35 DEA benefits.


CONCLUSIONS OF LAW

1.  The cause of the Veteran's death was incurred as a result of his active military service, under presumptive provisions of law.  38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2012).

2.  The criteria are met for entitlement to Dependents' Educational Assistance pursuant to Chapter 35, Title 38, United States Code.  38 U.S.C.A. § 3501 (West 2002); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

With regards to Chapter 35 education benefits, the provisions of the Veterans Claims Assistance Act (VCAA) have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter.  38 C.F.R. § 3.159(d)(3); Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004).  Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist as to the Chapter 35 benefits claim.

In any event, as the Board is granting both the cause of death and Chapter 35 claims, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because any such error is, at best, harmless.  See 38 C.F.R. § 20.1102.

II.   Cause of Death

Dependency and indemnity compensation is payable to the surviving spouse of a veteran if the Veteran died from a service-connected disability.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.5.

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).

A 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).

In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

In the present case, the evidence of record confirms the occurrence of the Veteran's death.  Indeed, the death certificate notes that, unfortunately, the Veteran died in October 2008 of cardio-pulmonary arrest, due to or as a consequence of left lung metastatic non-small cell cancer.  Medical records reflect that the Veteran's lung cancer, which was first diagnosed earlier in 2008, had spread to his liver.  

In addition, for reasons explained in greater detail below, the Board finds that the identified immediate cause of the Veteran's death, i.e., cardio-pulmonary arrest, due to or as a consequence of left lung metastatic non-small cell cancer, is related to his presumed herbicide exposure.

The governing law provides that 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).

The deceased Veteran, in this case, is found to have had qualifying service in the Republic of Vietnam.  The Appellant, who was married to him since at least 1956, believes that he served in Vietnam.  See December 2008 Statement.  In the present case, although the Veteran's military records do not reflect service in the Republic of Vietnam during part of the applicable time period (January 9, 1962, to May 7, 1975), other evidence in the file, when considered in the light most favorable to the Veteran, indicates service in the Republic of Vietnam.  

A copy of Temporary Duty Orders (TDY) dated in October 1965 reflects that the Veteran was to travel to Anniston, Alabama and then on to Sunny Point, North Carolina.  A statement from a fellow service member T.C. who is also listed on the TDY orders indicated that from July 1965 to October 1966 he was a First Sergeant of the Fort Campbell's Security Platoon.  He noted that it was their responsibility to provide guard/escort service to all munitions shipments throughout the world.  He indicated that in October 1965 they received orders to transport 20 or more rail cars of heavy ammunition from Anniston Army Depot to Sunny Point, NC.  Also, T. C. stated that this shipment was destined for Vietnam but due to secrecy was not included in the orders.  However, upon their arrival in Sunny Point they received telephonic orders from their G-3 that the Third US Army wanted them to send escort guards with the shipment to Vietnam.  T.C. attested that the Veteran was one of those men to accompany the shipment to its final destination.  

In another statement, a friend of the Veteran and former supervisor indicated that the Veteran had discussed with him on various occasions about taking sensitive/classified material into Vietnam and throughout that country doing his job in the U.S. Army.  See April 2011 Statement from S. C.  Service personnel records confirm that the Veteran was assigned a Military Occupational Specialty (MOS) of Light Weapons Infantry between September 1965 and April 1966 and that the record reflects he was stationed at Fort Campbell and traveled to Sunny Point, NC with further "O/S Destination."  

Although the Board recognizes that his service in the Republic of Vietnam has not been directly verified, his service records and the supporting statements submitted sufficiently establish service in Vietnam.  Thus, in consideration of the foregoing, the Veteran is presumed to have been exposed to one or more herbicide agents, in the absence of affirmative evidence to the contrary. There is no affirmative evidence to establish that the Veteran was not exposed to an herbicide agent in service included in the evidentiary record.

In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the following must be shown: (1) that the Veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii).  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).

Applicable regulations provide that a Veteran who served on active duty in Vietnam during the Vietnam era is presumed to have been exposed to Agent Orange or similar herbicide. 38 C.F.R. § 3.307(a)(1)(6)(iii). The specific statute pertaining to claimed Agent Orange exposure is 38 U.S.C.A. § 1116. Regulations issued pursuant thereto stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309(e). This regulation was amended effective August 31, 2010, to add, in relevant part, atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. 75 Fed. Reg. 53202 (August 31, 2010).

Effective August 31, 2010, 38 C.F.R. § 3.309(e) provides that presumptive service connection based on Agent Orange exposure is available for the following diseases: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and 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); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  However, for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease.  38 C.F.R. § 3.309(e), Note 3 (effective August 31, 2010).  

Thus, because the Veteran had qualifying Vietnam service, is presumed to have been exposed to herbicide agents during his Vietnam service, and died of a disease which is presumptively associated with exposure to herbicide agents (lung cancer), service connection for the cause of death of the Veteran is warranted.

III.  Chapter 35 Benefits

Dependents' Educational Assistance under Chapter 35, Title 38, of the United States Code, is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse and children, if the applicable criteria are met.  See 38 U.S.C.A. §§ 3500, 3501, 3510, 3512 (West 2002); 38 C.F.R. §§ 21.3020, 21.3021 (2012).  Basic eligibility for certification of DEA exists for the spouse, surviving spouse, or child of a Veteran or serviceperson, if the Veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the Veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed forces and is, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power, or (5) is on active duty as a member of the Armed Forces and has been determined by VA to have a total disability permanent in nature incurred or aggravated in the line of duty during active military, naval, or air service; is hospitalized or receiving outpatient medical care, services, or treatment for such disability; is likely to be discharged or released from such service for such disability; and the pursuit of a course of education by such individual's spouse or child for which benefits under 38 U.S.C. chapter 35 are sought occurred after December [redacted], 2006. 38 U.S.C.A. § 3501 (West 2002); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2012).  

Basic eligibility for certification of DEA exists for the surviving spouse of a veteran if the veteran was discharged from service under conditions other than dishonorable, and died as a result of a service-connected disability.  38 U.S.C.A. § 3501; 38 C.F.R. §§ 3.807, 21.3020, 21.3021.  Here, service connection for the Veteran's cause of death has been granted.  As service connection has been established for the cause of the Veteran's death, it follows that the surviving spouse meets the basic eligibility requirements for Chapter 35 DEA benefits.  The pertinent criteria having been met, Chapter 35 benefits are warranted.

ORDER

Service connection for cause of death of the Veteran is granted.

Entitlement to DEA [Chapter 35, Title 38, United States Code] is granted.



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs