Citation Nr: 1331402 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-45 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1955 to February 1975. He died on July [redacted], 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which denied the above claims. FINDINGS OF FACT 1. The Veteran died on July [redacted], 2008; the Certificate of Death shows that arteriosclerotic hypertensive heart disease was the immediate cause of death. 2. The Veteran served in the Republic of Vietnam during the Vietnam Era. 3. The Veteran's arteriosclerotic heart disease was caused by herbicide exposure during his military service in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). In this decision, the Board grants service connection for the cause of the Veteran's death. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. Here, the appellant contends that the Veteran's heart condition, which caused his death, was service connected due to exposure to herbicides during his service in the Republic of Vietnam during the Vietnam Era, and that, therefore, service connected for the cause of the Veteran's death should be granted. In determining whether a claim for benefits is warranted, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. DIC will be paid to the Veteran's surviving spouse "[w]hen any Veteran dies after December 31, 1956, from a service-connected or compensable disability." 38 U.S.C.A. § 1310(a). 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 contributing cause of death. See 38 C.F.R. § 3.312(a). A disability will be considered the principal cause of death when it, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto, whereas a contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(b), (c)(1). Service connection for ischemic heart disease will be presumptively established as due to exposure to an herbicide agent during service if the evidence establishes that the Veteran served in the Republic of Vietnam during the Vietnam era, absent affirmative evidence to the contrary. 38 C.F.R. § 3.309(e); see also 38 U.S.C.A. § 1116(a)(1)(B); 38 C.F.R. § 3.307(a)(6)(iii), (d). The term "ischemic heart disease" includes, but is 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. 38 C.F.R. § 3.309(e). Here, a December 1997 VA examination report shows that the Veteran reported fifteen months of service in the Republic of Vietnam starting in September 1967. His DD-214 shows that he was a recipient of the Air Medal, a Vietnam Campaign Medal and Vietnam Service Medal with four Bronze Service Stars and served 291 days in "Indochina or Korea." His primary military occupational specialty was air operations officer, navigator-observer with a secondary specialty as a navigator. The Board finds that the record indicates that the Veteran was physically present within the land boundaries of the Republic of Vietnam during the Vietnam era and was presumptively exposed to herbicides during that period of service. See 38 C.F.R. § 3.307(a)(6)(iii); see also May 1998 Rating Decision (granting service connection for prostate cancer due to exposure to herbicides during Vietnam service); December 1997 VA examination report (Veteran reported that he went to Vietnam in 1967 and was there for 15 months and flew about 100 missions; 38 U.S.C.A. § 1154(a) (West 2002) (requiring consideration of the circumstances of a veteran's service); August 2005 letter from the Department of the Air Force (approving the Veteran's application for Combat-Related Special Compensation (CRSC) on the basis of combat-related service-connected disabilities determined to be due to Agent Orange). The Veteran's death certificate shows that arteriosclerotic hypertensive heart disease was the immediate cause of death. "Atherosclerosis" is a common form of arteriosclerosis with the formation of the deposits of yellowish plaques, and arteriosclerotic heart disease is a synonym for "ischemic heart disease." See Dorland's Illustrated Medical Dictionary 175, 528 (28th ed. 1994); see also Brown v. Nicholson, 21 Vet. App. 290, 292 (2007). As noted above, ischemic heart disease is presumptively service-connected for Veterans who served in Vietnam during the Vietnam era. 38 C.F.R. § 3.309(e). Therefore, as the Veteran's arteriosclerotic heart disease is presumptively due to exposure to herbicides during his service in Vietnam and was the immediate cause of his death, and there is no affirmative evidence to the contrary, service connection for the cause of the Veteran's death is warranted. See 38 U.S.C.A. § 1110, 1116, 1310; 38 C.F.R. §§ 3.307(a)(6); 3.309(e); 3.312(b). All doubt has been resolved in favor of the appellant. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. With the Board's grant of DIC under the provisions of 38 U.S.C.A. § 1310 for service connection for the cause of death, the appellant's alternative claim of entitlement to DIC under 38 U.S.C.A. § 1318 is rendered moot. Accordingly, the appeal as to the claim of entitlement to DIC under 38 U.S.C.A. § 1318 is dismissed as no benefit remains to be awarded and no controversy remains. (Continued on the next page) ORDER Service connection for the cause of the Veteran's death is granted. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318 is dismissed. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs