Citation Nr: 1329534	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  10-12 485	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel





INTRODUCTION

The Veteran served on active duty from June 1967 to August 
1969, including service in the Republic of Vietnam.  His 
decorations include the Purple Heart Medal. The Veteran died 
in January 2009 and the appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an April 2009 decision of the 
Department of Veterans Affairs (VA), Regional Office (RO), 
in Cleveland, Ohio. 


FINDINGS OF FACT

1.  The Veteran died in January 2009, with metastic non-
small cell lung cancer (lung cancer) being the immediate 
cause of death.

2.  The Veteran is presumed to have been exposed to 
herbicides in service and he developed compensable lung 
cancer, prior to his death.

3.  Lung cancer is of service origin and caused or 
contributed to the Veteran's death.


CONCLUSION OF LAW

The criteria for service connection for the Veteran's cause 
of are 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

This decision grants service connection for the Veteran's 
cause of death, which constitutes a complete grant of the 
benefit sought on appeal; therefore, no discussion of VA's 
duty to notify or assist is necessary.

Service connection for cause of death

The death of a Veteran will be considered service connected 
when the evidence establishes that a service connected 
disability was either the principal or a contributory cause 
of death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a).  In 
determining whether a service-connected disability 
contributed to death, it must be shown that it 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 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).

Service connection may be established for a disability 
resulting from disease or injury incurred in or aggravated 
by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  
Certain diseases may be presumed to have been incurred in 
service, if they become manifest to a degree of ten percent 
or more within the applicable presumptive period, and 
specific threshold requirements are met.  38 U.S.C.A. 
§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307, 3.309(e).  Further, 
a disability that is proximately due to or the result of a 
service-connected disease or injury shall be service 
connected.  38 C.F.R. § 3.310. 

Service department records confirm the Veteran's service in 
the Republic of Vietnam and his receipt of the Purple Heart 
Medal; therefore he is presumed to have been exposed an 
herbicide agent in service.  Presumptive service connection, 
based on herbicide exposure, may only be granted for a 
specific list of disabilities, including cancer of the lung.  
38 C.F.R. § 3.309(e).  

The Veteran's death certificate lists the immediate cause of 
death as lung cancer; and a 40 year history of nicotine 
abuse as the underlying cause of death.  

At the time of the Veteran's death service connection was in 
effect for a residual shell fragment wound of the right 
forearm with retained foreign body; bilateral hearing loss; 
and tinnitus.  

The medical evidence, such as the death certificate, 
sufficiently confirms that the Veteran developed lung cancer 
that was at least 10 percent disabling.  Service connection 
for the disability was claimed but not established during 
his lifetime; nevertheless, lung cancer is of service origin 
because of his presumptive in-service herbicide exposure.  
38 C.F.R. §§ 3.303, 3.307, 3.309.  

The probative evidence of record does not provide such a 
showing as would, in sound medical reasoning and in the 
consideration of all evidence of record, support a 
conclusion that the Veteran's diagnosis of lung cancer was 
due to nicotine dependence.  38 C.F.R. § 3.307(d).  

A 40 year history of nicotine dependence is listed on the 
death certificate as the underlying cause of the Veteran's 
lung cancer and resulting death.  However, a December 2008 
private treatment record only reflects an approximate 4 year 
history of nicotine dependence (i.e., July 2005) prior to 
his death and an April 2008 private treatment record notes a 
one year history of nicotine cessation efforts.  The claim 
file is absent any notation other than on the death 
certificate that the Veteran had a 40 year history of 
nicotine dependence.  

There is no factual basis in the record to support the 
annotation on the death certificate that the Veteran had a 
40 year history of nicotine dependence and that such, rather 
than exposure to Agent Orange, was the cause of the 
Veteran's lung cancer.  At best, the evidence is in 
equipoise.  
Resolving all doubt in the appellant's favor, service 
connection for the Veteran's cause of death is warranted.  


ORDER

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





____________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs