Citation Nr: 1333524 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 13-06 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Whether new and material evidence has been received to reopen a claim for service connection for squamous cell carcinoma of the tongue, for substitution and accrued benefits purposes. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), for substitution and accrued benefits purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from April 1969 to May 1976. The Veteran died in October 2010. The appellant seeks surviving spouse benefits. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In September 2013, the appellant testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of whether new and material evidence has been received to reopen a claim for service connection for squamous cell carcinoma of the tongue and entitlement to a TDIU, for substitution and accrued benefits purposes, are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. According to his death certificate, the Veteran died in October 2010 from malignant neoplasm at the floor of the mouth. 2. The Veteran was not service-connected for any disabilities during his lifetime. 3. The Veteran's service separation form shows that he had service in the Republic of Vietnam from November 1970 to October 1971 and herbicide exposure during that service is presumed. 4. The only medical opinions of record conclude that the Veteran's cause of death is related to in-service herbicide exposure. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the appellant, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5103A, 5107(b) (West 2002 & 2013); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310, 3.159, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that the Veteran's death from malignant neoplasms of the floor of the mouth was caused by the Veteran's herbicide exposure during active service in the Republic of Vietnam. Medical evidence associated with the claims file shows that the Veteran's was diagnosed with squamous cell carcinoma of the floor of the mouth. The record shows that, during the Veteran's lifetime, service connection was not established for any disability. Nonetheless, the Board must still consider the pertinent evidence in light of the governing legal authority to determine whether, for purposes of establishing entitlement to service connection for the cause of the Veteran's death, a medical relationship between any cause of the Veteran's death and his service is established. Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d) (2013). To establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). Service-connected disability will be considered as the principal cause of death when that disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2013). To be considered a contributory cause of death, it must be shown that service-connected disability 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 a service-connected disability casually shared in producing death. Rather, a causal connection must be shown. 38 C.F.R. § 3.312(c)(1) (2013). The law establishes a presumption of service connection for disease associated with exposure to certain herbicide agents and also provides a presumption of exposure for Veterans who served in the Republic of Vietnam. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309(e) (2013). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War shall be presumed to have been exposed during that service to herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. The last date on which such a Veteran shall be presumed to have been exposed to herbicide agents shall be the last date on which he served in Vietnam during the Vietnam era. 38 U.S.C.A. § 1116(a)(3) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). The service records show that the Veteran served in Vietnam during the Vietnam era and therefore his exposure to herbicides is presumed. The list of diseases associated with exposure to herbicide agents includes respiratory cancers (cancer of the lung, bronchus, larynx, or trachea). 38 C.F.R. § 3.309(e) (2013). Based on Veterans and Agent Orange: Update 2010 and prior reports of the National Academy of Sciences (NAS), the Secretary has determined that a presumption of service connection based on exposure to herbicides in Vietnam is not warranted for cancers of the oral cavity, pharynx, or nasal cavity (including ears and sinuses). The NAS found inadequate or insufficient evidence to determine whether an association existed between herbicide exposure and these types of cancers. 77 Fed. Reg. 47,924 -47,928 (Aug. 10, 2012). Notwithstanding the presumptive provisions, the Veteran's Dioxin and Radiation Exposure Compensation Standards Act does not preclude a claimant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the presumption is not the sole method for showing causation and thereby establishing service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). A service-connected disability is one which was incurred or aggravated by active service, or in the case of certain diseases, like malignant tumors, was demonstrated to a compensable degree within one year following separation from active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309(a) (2013). The appellant does not contend and evidence of record does not show that the Veteran's cancer was either diagnosed during service or was compensably disabling within one year following discharge. The claimant contends the Veteran's cancer is due to herbicide exposure. Therefore, the Board must consider whether there is a causal relationship to herbicide exposure. In support of her claim, the appellant submitted copies of Board decisions, wherein service connection or service connection for a cause of death was granted for squamous cell carcinoma of the tongue and the floor of the mouth. The Board has considered these decisions, but notes that Board decisions do not have precedential value. 38 C.F.R. § 20.1303 (2013). Pertinent evidence associated with the claims file includes medical opinions from the Veteran's treating providers. In a June 2010 letter, B. Yueh, M.D. stated that the Veteran was a patient of his when he worked at the VA Puget Sound Healthcare System. Dr. Yueh noted that the Veteran developed multiple recurrent squamous cell carcinoma of the tongue. He had no prior risk factors and therefore, Dr. Yueh became concerned that this tumor was caused by exposure to herbicides during service in Vietnam. It was Dr. Yueh's opinion that it was at least as likely as not that the Veteran's cancer was caused or aggravated by his exposure to herbicides during service in Vietnam. In an August 2010 letter, E. Mendez, M.D, a physician at the VA Puget Sound Health Care System, stated that the Veteran developed multiple recurrent squamous cell carcinoma of the tongue. He had no prior risk factors and therefore, Dr. Mendez became concerned that the tumor was caused by exposure to herbicides during service in Vietnam. It was Dr. Mendez's opinion that it was at least as likely as not that the Veteran's cancer was caused or aggravated by exposure to herbicides during service in Vietnam. In a February 2013 letter, Dr. Yueh stated that the Veteran had no known risk factors such as tobacco or alcohol abuse. However, he sustained heavy exposure to herbicides during service in Vietnam and Dr. Yueh could not rule that out as a cause of his disease. Dr. Yueh again opined that it was at least as likely as not that the Veteran's cancer was caused or aggravated by his exposure to herbicides during service in Vietnam. In support of that opinion, Dr. Yueh stated that epithelial cells in the base of the tongue and the larynx are the same cells that line the oral tongue. Therefore, since VA has determined that Vietnam Veterans developed base of tongue and larynx tumors as a result of exposure to herbicides, it stood to reason that the same attribution should be made for oral tongue tumors. After all, the herbicide had to pass through the mouth in order to reach the base of the tongue and the larynx. On review, herbicide exposure is established and the record only contains medical opinions from otolaryngologists that are favorable to the appellant's claim, with sufficient rationale provided in Dr. Yueh's February 2013 opinion. The Board also finds it highly pertinent that there is no competent medical opinion evidence to the contrary. Accordingly, the Board resolves reasonable doubt in favor of the appellant and find that an etiological relationship between squamous cell carcinoma of the tongue and in-service herbicide exposure has been demonstrated. Because that carcinoma is shown to be the cause of death, service connection for the cause of the Veteran's death is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is granted. REMAND In February 2010, the Veteran submitted a petition to reopen a claim for service connection for squamous cell carcinoma of the tongue and a claim of entitlement to a TDIU. A March 2010 rating decision determined that new and material evidence had not been received and declined to reopen the claim for service connection for squamous cell carcinoma of the tongue and denied entitlement to a TDIU. In August 2010, the Veteran submitted medical opinions from two doctors linking his squamous cell carcinoma to his herbicide exposure in service. However, there was no subsequent adjudication after the submission of additional, relevant evidence. The Veteran died in October 2010. In October 2010, the appellant submitted a VA Form 21-4138 and specifically requested substitution pursuant to 38 U.S.C.A. § 5121A for the Veteran's pending claims, which included new and material evidence to reopen a claim for service connection for squamous cell carcinoma of the tongue and entitlement to a TDIU. Thereafter, in November 2010, the appellant submitted a formal application for Dependency and Indemnity Compensation (DIC). A February 2011 rating decision adjudicated whether new and material evidence had been received to reopen the claim for service connection for squamous cell carcinoma solely for accrued benefits purposes. 38 U.S.C.A. § 5121 (West 2002). Accrued benefits are benefits to which the Veteran was entitled at the time of death under an existing rating or based on the evidence actually or constructively in the claims file on the date of death. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000 (2013); Hayes v. Brown, 4 Vet. App. 353 (1993). Accrued benefits are payable to a Veteran's surviving spouse, or other qualified claimant, if no surviving spouse exists. Effective October 10, 2008, the law was changed concerning substitution in the case of the death of a claimant. The newly revised statute provided that, if a claimant died while a claim for any benefit under a law administered by VA, or an appeal of a decision with respect to a claim, was pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121a, could not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. 38 U.S.C.A. § 5121A (West Supp. 2013). The Board notes that unlike an accrued benefits claim, the record is not closed on the date of death of the original claimant, but remains open for submission and development of any pertinent additional evidence. 38 U.S.C.A. § 5121A (West Supp. 2013). A claim for VA benefits pending on the date of death means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.100(d)(5) (2013). The Veteran applied for the aforementioned benefits and was denied in a September 2010 rating decision. He died during the pendency of his claim in October 2010. During that period, and while the appellant was filing her claims for benefits for DIC and claims for accrued benefits, the RO did not make a decision as to whether the appellant was determined to be an eligible claimant for substitution in the Veteran's appeal. As the issue of entitlement to accrued benefits and substitution are inextricably intertwined, the issue of substitution should be resolved prior to adjudication of the accrued benefits claims. Moreover, that issue must be determined, as the Board notes that unlike an accrued benefits claim, the record is not closed on the date of death of the original claimant, but remains open for submission and development of any pertinent additional evidence. A claim for substitution is more beneficial to the appellant. Here, the Board finds that the RO has framed the issue remaining on appeal and adjudicated the claim only for purposes of accrued benefits. The AOJ has not made a determination as to the appellant's actual eligibility to substitute in the appeal. The Board does not have jurisdiction to make determinations regarding basic eligibility to substitute in the first instance. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.101(a) (2013) . Consequently, the proper course is to remand the claim for resolution of the issue of substitution. The Board is further of the opinion that the TDIU claim for accrued benefits or substitution purposes is inextricably intertwined with the new and material evidence claim because, if service connection is granted for squamous cell carcinoma of the tongue, that service-connected disability would be required to be considered in determining whether entitlement to TDIU is warranted for accrued benefits or substitution purposes. Accordingly, the case is REMANDED for the following actions: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. 1. Adjudicate the issue of substitution for the claims of entitlement to service connection for squamous cell carcinoma and entitlement to TDIU and determine if substitution of the appellant for the Veteran is proper, consistent with her October 2010 written statement. 2. If the request for substitution is allowed, complete any other development deemed necessary and readjudicate each of the claims remaining on appeal, for substitution and accrued benefits purposes. If any decision is adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs