Citation Nr: 1325634 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 08-00 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran had active service from September 1965 to January 1969. The Veteran died in April 2005; the appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of July 2007 of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO) that denied the appellant's claim for service connection for the cause of the Veteran's death. In August 2009, January 2012, and October 2012, the Board remanded the appellant's claim for additional development. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran died on April [redacted], 2005. The cause of death listed on the death certificate is congestive heart failure, due to or as a likely consequence of non-Hodgkin's lymphoma. 2. At the time of his death, the Veteran was not service-connected for any disability. 3. There is no competent or credible evidence linking the Veteran's death to his active service. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters of May 2007 and June 2008 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). In the context of a claim for service connection for the cause of the Veteran's death (DIC benefits), section 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). The June 2008 letter satisfied these requirements. Though it was not provided to the claimant prior to the initial rating decision, her claim was subsequently readjudicated, most recently in a May 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield, 444 F.3d at 1333-34. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The appellant has not indicated, and the record does not contain evidence, that the Veteran was in receipt of disability benefits from the Social Security Administration prior to his death. 38 C.F.R. § 3.159 (c) (2). The general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of a veteran's death. Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Opinions regarding the etiology of the Veteran's death were obtained in February 2011 and May 2013. As the February 2011 opinion was written prior to the receipt of additional private medical records, the opinion is inadequate. The May 2013 opinion, however, is adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner in that opinion reviewed the Veteran's claim file and made specific findings related to the evidence therein. Further, the appellant has not argued that this opinion is inadequate for rating purposes. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Entitlement to Service Connection for the Cause of the Veteran's Death Service connection for the cause of the Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory, cause of death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(c)(1). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) ; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran died on April [redacted], 2005. The cause of death listed on the death certificate is congestive heart failure, due to or as a likely consequence of non-Hodgkin's lymphoma. The Veteran was not service-connected for any disability at the time of his death. The appellant alleges that the Veteran's death is due to herbicide exposure during his active service. In a December 1999 claim, the Veteran stated that he was exposed to Agent Orange. In her April 2007 claim, the appellant stated that the Veteran is a "Vietnam Veteran," and that he died of a presumptive disease. In her August 2007 notice of disagreement, the appellant stated that, while serving in Guam, the Veteran was sent to Vietnam on temporary duty "several different times." She repeated this contention in her January 2008 substantive appeal. Pursuant to 38 C.F.R. § 3.307(a)(6), certain diseases associated with exposure to herbicides are presumed to be incurred in or aggravated by service. Listed among these diseases are ischemic heart disease and non-Hodgkin's lymphoma. 38 C.F.R. § 3.309(e). There is, however, no evidence that the Veteran served in Vietnam during his active service, or that he was otherwise exposed to herbicides during his active service. The Veteran's DD-214 reflects that he served in the Air Force from September 1965 to January 1969. Though it states that the Veteran served 6 months and 7 days of foreign service, there is no indication that this service was in Vietnam. The Veteran received no decorations, medals, or badges commensurate with service in Vietnam. The Veteran's service personnel records reflect 187 days of temporary duty in Guam in support of Operation Arc Light beginning June 17, 1967. There are no records showing that the Veteran had temporary duty in Vietnam during his active service. Following the Board's first remand, VA asked the Air Force Historical Research Agency to determine whether the Veteran was sent to Vietnam for temporary duty. In a November 2010 response, that agency replied that the Veteran was assigned to the 3960th Services Squadron, 3960th Strategic Wing and was stationed in Guam from March 1967 to September 1967. It noted that a review of the history of the 3960th's higher headquarters, the Third Air Division, failed to show any mention of sending any personnel from the 3960th to any other location. Further, the agency archivist stated that the 3960th Strategic Wing was a Strategic Air Command asset, and it would be unlikely that the Veteran would have been sent to any non-SAC base in a temporary duty capacity. The archivist noted that, though there were other SAC bases in the Pacific, there were none in Vietnam. He stated that the likelihood of the Veteran's being sent on temporary duty to the Republic of Vietnam to a non-SAC function is remote. Though the appellant alleges that the Veteran served in Vietnam, the Board finds her statements to be outweighed by the negative evidence of record. Of note, the Veteran and the appellant were not married until April 1990, some 20 years after his separation from active service. The appellant does not assert that she has firsthand knowledge that the Veteran went to Vietnam; rather, she relied on the Veteran's report of his being stationed there. Absent evidence of contemporaneous knowledge of the Veteran's duty stations, the appellant's statements are outweighed by the other evidence of record. There is also no evidence that the Veteran was otherwise exposed to herbicides during his active service. In a July 2009 brief, the Veteran's representative argued that the Veteran may have been exposed to herbicides during his service at Andersen Air Force Base in Guam. VA asked the JSRRC to determine whether the Veteran could have been exposed to herbicides during his duty in Guam. In a December 2010 response, the JSRRC responded that it could not document or verify that the Veteran was exposed to herbicides while in Guam. It stated that Guam is not listed by the Department of Defense among the herbicide spray areas or test sites outside of the Republic of Vietnam. The JSRRC response also stated that available unit historical data does not document any herbicide spraying, testing, storage, or usage at Andersen Air Force Base. In summary, the most probative evidence of record does not demonstrate that the Veteran served in Vietnam at any time, and there is no evidence that the Veteran was exposed to Agent Orange or any other herbicide during his active service. Accordingly, the Veteran is not entitled to service connection for his death under the herbicide presumption. The Veteran's death may still be service connected if it is otherwise shown that it is related to his active service. Notably, the Veteran died of congestive heart failure, and his January 1969 separation examination found that he suffered from a Grade I/VI systolic ejection murmur. To determine whether the Veteran's death is related to the murmur noted at separation, VA obtained a medical opinion in May 2013. Prior to offering his opinion, the examiner reviewed the Veteran's claim file, including the medical records from shortly before his death. The examiner noted the Veteran's separation physical finding that he suffered from a Grade I/VI systolic ejection murmur. He also noted that a May 1969 VA examination found that the Veteran suffered from rheumatic heart disease, mitral valve insufficiency class I. The examiner concluded that "it is less likely than not . . . that the Veteran's in-service heart murmur is related to his death from congestive heart failure." He noted that no mention of a murmur was found in the hospital records in the months preceding the Veteran's death. He stated that the Veteran suffered from a number of conditions, but despite the numerous consultations (including cardiology records) in these records, decompensated mitral insufficiency with associated congestive heart failure was not among the Veteran's diagnoses. He added that it is less likely than not "that the Veteran's rheumatic heart disease, diagnosed in June 1969, progressed to the point that it was significantly impacting his cardiovascular function [that contributed] in a meaningful way or otherwise related to his death." Finally, the examiner concluded that "it is less likely than not . . . that the Veteran's presumed rheumatic heart disease, mitral insufficiency, class I, diagnosed in June 1969 . . . is related to his death." He noted that this condition is the same as the Veteran's heart murmur identified at separation, a condition that he already provided a negative rationale for. He also noted that the Veteran's private treatment records contain no evidence of the progression of the Veteran's presumed mitral valvular insufficiency. There is no evidence in the claim file that relates the Veteran's death to his active service or to the heart murmur identified at separation. To the extent that the appellant and her representative have argued that the two are related, their opinion is not considered competent. See Jandreau, 492 F.3d at 1377. The preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death; there is no doubt to be resolved; and service connection for the cause of the Veteran's death is not warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs