Citation Nr: 1328522 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 09-06 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1957 to June 1978. He died in December 2001. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by which the RO, in pertinent part, denied entitlement to service connection for the cause of the Veteran's death. In April 2010, the appellant testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In May 2012, the Board remanded this matter to the RO for further development of the evidence. FINDINGS OF FACT 1. The Veteran's death certificate identified the immediate cause of death as metastatic cancer to the brain and liver as due to lung cancer. 2. At the time of the Veteran's death in December 2001, service connection was in effect for dermatophytosis rated as 10 percent disabling, effective July 1, 1978. 3. The Veteran did not serve in the Republic of Vietnam, but served in Thailand on the Don Muang Royal Thai Air Force Base between January 1967 and January 1968. 4. The Veteran's service activities as an aircraft reciprocating engine technician in Thailand did not place him at or near a base perimeter. 5. Symptoms of lung cancer were not chronic in service and were not continuous since service separation. 6. The Veteran's lung cancer, which metastasized to the brain and liver, is not etiologically related to service. CONCLUSION OF LAW The criteria for entitlement for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA 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, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009) (unpublished). A May 2002 notice letter satisfied the notice requirements for a DIC claim. VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). In this case, VA obtained the Veteran's service treatment, the identified and available post-service VA treatment records, and a copy of the Veteran's death certificate. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that 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 the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is necessary to substantiate the claim, and VA is excused from providing such assistance only when no reasonable possibility exists that such assistance would aid in substantiating the claim. Wood, 520 F.3d at 1348. In this regard, the Veteran was afforded a VA examination in October 2010 pursuant to the Board's August 2010 remand. The October 2010 VA examiner opined that the lung cancer with metastases to the brain and liver diagnosed in 2001 did not likely have its onset in service or within a year of separation. However, the examiner failed to opine regarding the question of whether it is at least as likely as not (meaning 50 percent or more probable) that the cause of the Veteran's death was otherwise related to his documented in- service treatment for various respiratory complaints. Because the examiner did not respond fully to the Board's August 2010, the case was once again remanded in May 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board finds that the development required by the Board's May 2012 remand has been substantially completed. This consisted of obtaining a VA supplemental opinion to assist in determining whether the cause of the Veteran's death was related to his documented in-service treatment for various respiratory complaints. A VA supplemental opinion was obtained in June 2012 and the issue was readjudicated in a October 2012 supplemental statement of the case. The opinion was adequate because it was based upon a review of the relevant evidence of record and was supported by a thorough explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). For these reason, the Board concludes that the Board's remand orders have been substantially complied with and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The record includes a VA memorandum on herbicide use in Thailand during the Vietnam era between January 1967 and January 1968 U.S. Army Joint Services Records Research Center (JSRRC) formal finding indicating that there were no records of exposure to herbicides. For these reasons, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Analysis 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 U.S.C.A. § 1310 (West 2002); 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). In deciding the claim for service connection for the cause of the Veteran's death, the Board must also consider whether any of the disabilities that caused or contributed to the Veteran's death may be service-connected. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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 C.F.R. § 3.303(d). The condition of lung cancer (malignant tumor) is considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's death certificate, dated in December 2001, reveals the immediate cause of death was listed as metastatic cancer to the brain and liver as due to lung cancer. At the time of the Veteran's death service connection was in effect for dermatophytosis rated as 10 percent disabling, effective July 1, 1978. The appellant contends that the Veteran's lung cancer is due to herbicide exposure resulting from his service in Thailand between 1967 and 1968. See appellant's statement dated October 2012. Further, the appellant contends that although the Veteran was stationed in Thailand, he made several trips to Vietnam between January 1967 and January 1968. See appellant's statement dated February 2009. The appellant does not contend that the Veteran's death was in anyway related to service-connected dermatophytosis. VA regulations provide that if a Veteran was exposed to an herbicide agent (including Agent Orange) during active service and has contracted an enumerated disability to a degree of 10 percent or more at any time after service, the Veteran is entitled to service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307, 3.309(e). Presumptive service connection is warranted for respiratory cancers which includes cancers of the lung as a result of Agent Orange exposure if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). Thus, the pertinent question that remains is whether the Veteran was exposed to herbicides during service. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. See 38 C.F.R. § 3.309(e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include lung cancer. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309. 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, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id; 38 C.F.R. § 3.313; see also Haas v. Peake, 525 F.3d. 1168, 1174 (Fed. Cir. 2008), cert. denied 129 S. Ct. 1002 (2009). VA's Adjudication Procedural Manual, M21-1MR, notes that VA has determined special consideration should be extended to veterans who claim herbicide exposure in Thailand. See M21- 1MR, IV.ii.2.C.10.q. The M21-1MR directs adjudicators to concede herbicide exposure on a direct/facts-found basis for veterans who served in the U.S. Air Force in Thailand during the Vietnam Era, served at one of the Royal Thai Air Force Bases, including Don Muang, and performed duties which placed them on or near the perimeters of the base, such as security policeman, security patrol dog handler, or security police squadron. Id. In addition, the M21-1MR Memorandum for the Record indicates that tactical herbicides, such as Agent Orange, were used at the Pranburi Military Reservation from April to September 1964, but not near any U.S. military installation or Royal Thai Air Force Base. Other than the 1964 tests on the Pranburi Military Reservation, tactical herbicides were not used or stored in Thailand. This memorandum reflects that some Operation RANCH HAND aircrafts flew insecticide missions in Thailand from August 1963 to September 1963 and in October 1966. While the 1966 missions involved the spraying of Malathion insecticide for "control of malaria carrying mosquitoes," these facts were noted as insufficient to establish tactical herbicide exposure for any veteran based solely on service in Thailand. Further, the Memorandum provides that if the Veteran's claim is based on servicing or working on aircraft that flew bombing missions over Vietnam, there is no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Aerial spraying of tactical herbicides in Vietnam did not occur everywhere, and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam. Additionally, the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation RANCH HAND. Also, there are no studies that VA is aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. See M21- 1MR, IV.ii.2.C.10.r. The Board acknowledges the appellant's contention that although the Veteran was stationed in Thailand, he purportedly conducted some in-country trips to Vietnam. The Board finds that the weight of the evidence of record does not establish that the Veteran served or was present in Vietnam. Specifically, service personnel records do not reflect that the Veteran performed any duties or was otherwise stationed in Vietnam at anytime during service. In a November 2001 claim for increased rating based on purported in-service exposure to herbicides, the Veteran stated that he was exposed to Agent Orange in Thailand. The Veteran made no mention of in-service flights to Vietnam or exposure to herbicides while in Vietnam. Moreover, as noted above, there is no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. For these reasons, entitlement to service connection for metastatic cancer to the brain and liver as due to lung cancer is not established based on presumed exposure to herbicides resulting from service in Vietnam or being near or working on aircraft that flew over Vietnam. Nonetheless, as per the M21-1MR, IV. ii.2.C.10.q., if a Veteran served in Thailand, exposure to herbicides is conceded, if the Veteran's service activities involved duty on or near the perimeter of the military base where he was stationed. It is accepted that work as a security policeman, security patrol dog handler, or member of a security police squadron would be sufficient for purposes of demonstrating service activities on or near the perimeter of the military base. Otherwise, there needs to be credible supporting evidence of service activities involving duty on or near a base perimeter. In the present case, service personnel records establish that the Veteran served in Thailand from January 16, 1967 to January 15, 1968 at the Don Muang Royal Thai Air Force Base. His military occupational specialty was that of aircraft reciprocating engine technician. See DD Form 214. Although the Veteran was stationed at one of the bases found to have been exposed to herbicides, the Veteran was not involved in duties on or near the perimeter of the military base, (i.e., his MOS was not security policeman, security patrol dog handler, or member of a security police squadron). The Board further finds that the evidence of record does not otherwise demonstrate credible supporting evidence of service activities involving duties on or near a base perimeter. For example, as noted above, the Veteran filed a claim for an increased rating in November 2001 based on purported in- service exposure to Agent Orange while serving in Thailand. The Veteran claimed that he was exposed to dead bodies that had been sprayed with Agent Orange and that he flew and worked on aircraft that sprayed Agent Orange. The Veteran did not contend that he was exposed to herbicides resulting from service activities involving duties "on or near a base perimeter." With regard to other credible supporting evidence of service activities involving duty on or near a base perimeter, the Board does not find any such evidence that would warrant conceding exposure to herbicides, to include the appellant's statements. Here, the M21-1MR provision requires that the Veteran's service activities must place him on or near a base perimeter. For the reasons discussed above, the appellant's assertions that the Veteran was exposed to Agent Orange while working on aircraft is not sufficient as there is no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. In sum, the appellant has not reported that the Veteran's work-related duties at his primary base location, required duty on or near a base perimeter. Furthermore, none of the evidence of record supports the Veteran working on or near the perimeter of the base. For these reasons, there is a lack of evidence to warrant service connection for lung cancer on a presumptive basis due to presumed exposure to herbicides in Vietnam or Thailand. Notwithstanding the lack of evidence to warrant service connection for lung cancer on a presumptive basis, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (which holds that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and lung cancer (malignant tumor) becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this case, post- service medical treatment records document that the Veteran was first diagnosed with lung cancer in 2001, 23 years following separation from service. As such, the Board finds that lung cancer did not manifest within one year of service. The Board next finds that although service treatment records reflect some respiratory conditions, symptoms of lung cancer were not chronic in service. For example, service treatment records reveal a diagnosis of pneumonia in January 1971. In addition, x-rays dated April 1974 reflect evidence of a pulmonary nodule. A subsequent May 1974 computed tomography of the chest indicates that there was no significant lesion. Further, the March 1978 chest x-ray associated with the retirement examination was negative. This evidence weighs against a finding that symptoms of lung cancer were chronic in service. In the June 2012 VA medical opinion, the VA examiner reviewed the claims file and opined that the current medical information about small cell lung cancer suggested a median survival of untreated small cell cancer less than one year and often less than six months. The VA examiner noted that it was highly unlikely that a person would have survived from the time the abnormal chest x-ray was conducted in 1974 and died in 2001. Accordingly, the VA examiner stated that the respiratory complaints the Veteran was treated for in 1974 were not due to small cell lung cancer diagnosed in 2001. For these reasons, the Board finds that symptoms of lung cancer were not chronic in service. Moreover, the Board finds that symptoms of lung cancer were not continuous after service separation. As noted above, records reflect that lung cancer was diagnosed in 2001, more than 20 years after the Veteran completed active service. Such a lengthy time interval between service and the earliest post-service clinical documentation of the disability is a factor for consideration against a finding that his lung cancer is related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, in July 1978, the Veteran filed a claim for VA compensation for right knee pain and a skin rash on his lower abdomen; however, the Veteran did not report or file a claim for any respiratory conditions. This further weighs against a finding that lung cancer symptoms were continuous since service separation. The Board next finds that the weight of the lay and medical evidence does not demonstrate a link between service and the cause of the Veteran's death. In an October 2010 VA medical opinion, the VA examiner opined that the lung cancer with metastases to the brain and liver diagnosed in 2001 did not likely have its onset in service or within a year of separation. Also, the June 2012 VA examiner opined that the Veteran's death in 2001 with a diagnosis of small cell lung cancer was "not at least as likely as not" related to the documented in-service treatment for various respiratory complaints. Instead, the June 2012 VA examiner stated that the Veteran was at a high risk of lung cancer due to his history of smoking cigarettes since high school. See also October 2001 substance abuse VA counseling note which indicated that the Veteran reported a history of tobacco use of "2 ppd since high school." The Board has considered the appellant's statements and assertions of record purporting to establish a nexus between the Veteran's lung cancer and service. In this regard, sometimes laypersons 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the appellant, as a layperson, is not medically competent to provide a diagnosis or opine as to the etiology of something as complex as the Veteran's lung cancer. See Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the appellant's statements regarding the etiology of the Veteran's lung cancer do not constitute competent evidence. Accordingly, and based on all the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's cause of death was related to service, to include as due to herbicide exposure. Because the preponderance of the evidence is against the claim, the benefit of doubt provision does not apply. ORDER Service connection for cause of death is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs