Citation Nr: 1337436 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-19 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESSES AT HEARING ON APPEAL The appellant and S.G. ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from June 1946 to August 1946. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In August 2010, the Board reopened a previously denied claim of service connection for the cause of the Veteran's death. At that time, the Board remanded the reopened claim to the RO for additional development. 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). FINDINGS OF FACT 1. The Veteran died in February 2005; according to his death certificate, the immediate cause of death was cardio-pulmonary arrest secondary to cardiogenic shock from acute myocardial infarction. 2. Service connection was not in effect for any disability during the Veteran's lifetime. 3. The Veteran did not have service in the Republic of Vietnam and he was not exposed to herbicide agents. 4. The disease process leading to the Veteran's death did not have its onset during, or was otherwise related to, his active military service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1310, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Notice for Dependency and Indemnity Compensation (DIC) claims is to 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 Board finds that all notification action needed to make a decision as to the claim on appeal has been accomplished. Through June 2008, March 2009 and December 2012 notice letters, the RO notified the appellant of the information and evidence needed to substantiate the claim of service connection for the cause of the Veteran's death. The March 2009 letter expressly noted that the Veteran was not service connected for any disability at the time of his death. Additionally, the March 2009 and December 2012 letters provided the appellant with the general criteria for assigning effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Although the complete notice was not provided until after the RO initially adjudicated the appellant's claim, the claim was properly re-adjudicated in subsequent supplemental statements of the case, which followed the adequate notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board also finds that the June 2008, March 2009 and December 2012 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those letters, the RO notified the appellant that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letters asked the appellant to submit medical evidence, opinions, statements, and treatment records regarding the cause of the Veteran's death. Accordingly, further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records have been obtained and his service personnel records were obtained pursuant to the Board's August 2010 remand. Additionally, records from multiple private treatment providers have been obtained, including the records created at the time of the Veteran's death by Subic Bay Medical Center. Moreover, the appellant was afforded a hearing before the Board in April 2010, the transcript of which is of record. The appellant requested that VA obtain deck logs from a ship that the Veteran was aboard during the Vietnam War to determine if he may have gone ashore to the Republic of Vietnam. As detailed below, the evidence does not show that the Veteran was assigned to a ship that may have been located near Vietnam during the Vietnam War, but rather to the Naval Station in San Diego, California, to the personal residence of the Commander of the U.S. Naval Forces in Japan, and to the Naval Station at Subic Bay, Philippines. The Veteran did serve aboard the aircraft carrier USS Oriskany, which may have been located near the Republic of Vietnam during the Vietnam War. However, the Veteran served aboard the USS Oriskany from 1959 to 1960, which was prior to the Vietnam War. Therefore, as deck logs from that ship or any ship that the Veteran was aboard prior to the Vietnam War would not be of use in substantiating the claim, VA does not have a duty to assist to obtain them. See 38 C.F.R. § 3.159(d) (VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim). Furthermore, a VA medical opinion was not obtained in connection with the appellant's claim. In the context of a DIC claim, VA has an obligation to assist a claimant in obtaining evidence necessary to substantiate a claim, including a medical opinion, unless there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); see also DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Similar to the deck logs, the Board finds that it is not necessary to obtain a medical opinion because there is no reasonable possibility that such assistance would aid in substantiating the claim. The evidence does not indicate that the disease process leading to the Veteran's death may be related to his active military service. As detailed below, the evidence shows that no injury, disease or event occurred during his service to which his death may be related. The claim turns on whether the Veteran was exposed to herbicide agents such as Agent Orange. Because the Board finds that this was not so, and cannot presumed to be so, further assistance including a medical opinion is not warranted. Thus, VA has properly assisted the appellant in obtaining any relevant evidence. II. Analysis A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2013); 38 C.F.R. § 3.312 (2013). 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 contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; 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). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). At her April 2010 Board hearing, the appellant testified that the Veteran told her that he was exposed to Agent Orange during service. Specifically, the Veteran told her that his ship was in Vietnam and that it docked there even if he did not step foot in Vietnam. The appellant contends that the Veteran's heart problems leading to his death were the result of this exposure to Agent Orange during the Vietnam War. She also stated that the Veteran had chest pain during service when he was stationed in San Diego. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In addition, certain chronic diseases, such as arteriosclerosis and cardiovascular-renal disease, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.309(e). In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). 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. During the pendency of the appellant's claim, the provisions of 38 C.F.R. § 3.309(e) were amended to include additional presumptive diseases. See 75 Fed. Reg. 53202-53216 (Aug. 31, 2010). The additional diseases include ischemic heart disease. Acute myocardial infarction is considered ischemic heart disease. See 38 C.F.R. § 3.309(e) at Note 3. Regardless of whether a claimed disability is recognized under 38 U.S.C.A. § 1116, pertaining to herbicide agent exposure presumptive diseases, a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). The evidence of record shows that service connection was not in effect for any disability during the Veteran's lifetime. He applied for nonservice-connected pension benefits in February 2005, but never for compensation benefits. A death certificate documents that the Veteran died in February 2005. The cause of death was cardio-pulmonary arrest secondary to cardiogenic shock from acute myocardial infarction. The Veteran's final records from Subic Bay Medical Center, dated in February 2005, note that he was admitted with breathing problems and diagnoses of pneumonia and chronic obstructive pulmonary disease (COPD). He passed away during a two-day hospitalization. The final diagnosis was identical to the causes of death on the death certificate. Other private treatment records from 2004 and 2005 show that the Veteran was treated for breathing problems and include diagnoses of pneumonia, COPD, bronchitis, hypertension and angina. Also, a January 2005 chest x-ray shows a sclerotic aorta. Excluding the possibility of exposure to herbicide agents, the evidence does not show that any of the disease process, either primary or contributory, leading to the Veteran's death had its onset during, or was otherwise related to, his active military service. The post-service private treatment records do not reference the Veteran's military service or contain any comment on the possible origin of his heart and lung problems relating to service. The Veteran was treated for these problems over thirty years after his separation from service. The appellant noted 1998 or 1999 as the possible time when the Veteran was treated for heart problems. In his application for pension benefits, the Veteran mentioned 2004 as when his heart condition began and his shortness of breath only as early as 1995. This timeframe for treatment and when the Veteran believed this problems began is a factor weighing against the claim given the remoteness from service. As noted previously, even when initially diagnosed after service, the evidence may still establish that a disease was incurred in service when considering all the evidence. Here, the service records do not reflect that the Veteran had similar heart or lung problems during service. From 1946 to 1966, no fewer than fifteen examinations found the Veteran to be physically qualified for his duties at the time. Additionally, all periodic examinations were normal as to the heart and lungs. Moreover, a January 1956 electrocardiogram was within normal limits, and no fewer than ten chest x-rays were negative or within normal limits. As referenced by the appellant, one entry in February 1965 notes wheezing and chest pain. However, the diagnosis was flu syndrome rather than any type of heart or lung condition. This evidence does not provide that any injury, disease or event occurred during service to which any disease process leading to the Veteran's death could possibly be related. Thus, the preponderance of the evidence is against a finding of service connection for the cause of the Veteran's death on a direct basis. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Furthermore, given that the evidence does not show that any chronic disease such as arteriosclerosis or cardiovascular-renal disease manifested to a compensable degree within one year of the Veteran's separation from service, service connection is not warranted for the cause of the Veteran's death based on the presumptive provisions related to chronic diseases. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The salient question of the case is then whether the Veteran was exposed to herbicide agents such as Agent Orange or whether such exposure may be presumed even if there is no evidence of exposure. This is a significant aspect as the Veteran died in part due to acute myocardial infarction, which is considered ischemic heart disease and presumed to be relate to herbicide exposure under 38 C.F.R. § 3.309(e). The Veteran's service records are devoid of a reference to herbicide agents and his military occupational specialty throughout his twenty years of service was cook or steward. There is nothing in the service records indicating why he would have come into contact with herbicide agents while in the capacity of cook or steward. Additionally, on the Veteran's February 2005 application for pension benefits, he checked a box "no" when asked if he was exposed to Agent Orange or other herbicides. Although the appellant is not competent to attest to whether the Veteran was exposed to Agent Orange because she was not present, her recollection of what he told her may constitute competent evidence of exposure. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) ("Competent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge."). Nevertheless, the second-hand evidence of exposure to Agent Orange lacks credibility and has little probative weight given the Veteran's own indication to the contrary, the Veteran's occupation during service, and the absence of documentation of exposure in the service records. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 ("a non-combat veteran's lay statements must be weighed against other evidence, including the absence of military records supporting the veteran's lay assertions"). Thus, given the detailed account of the Veteran's service in his personnel records and the lack of credible evidence showing exposure, the Board finds that he was not exposed to herbicide agents excluding the possibility of presumably having been exposed during service in Vietnam. As noted previously, the appellant asserts that the Veteran served in the Republic of Vietnam and should be presumed to have been exposed to herbicide agents. In contrast to whether he was exposed to herbicide agents, the Veteran checked the box "yes," when asked if he served in Vietnam on his application for pension benefits indicating the service was in 1964. Thus, there is more consistency with this aspect of the claim. Nevertheless, the Board finds the detailed service records to be the most probative evidence as to whether the Veteran served in Vietnam. The records render any statements that the Veteran served in Vietnam not credible because the records place him in other locations. First, although the Veteran had a lengthy period of active service, only the period from January 9, 1962 to when he separated from service on August 26, 1966 is relevant as this covers the period when service in Vietnam would result in a presumption of exposure to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(iii). His service personnel records expressly document that he Veteran was stationed at the San Diego Naval Base at the beginning of this time period. He was the cook and steward for the Commandant's Quarters. Then, in March 1963, he was transferred to the Commander of the Seventh Fleet where he was the cook and baker for the Admiral's Mess. In January 1964, he was temporarily transferred to the Subic Bay Naval Base before he was stationed with the Commander of the U.S. Naval Forces in Japan. The Veteran served at the personal residence of the Commander as steward and cook. This duty continued until August 1965 when he was transferred to Subic Bay Naval Base from where he was eventually discharged. While the Veteran's service as a cook and steward at the highest levels of the Navy is commendable, there is no indication that his duties took him outside of the location of the personal mess and residence of the officials, or a specific Naval Base. This detailed account of his service does not reflect service in the Republic of Vietnam. Second, although the appellant asserts that the Veteran was aboard a ship that at least docked in Vietnam, the evidence does not show this to be the case. His personnel records do not reflect assignment to a ship that may have been located near Vietnam. As noted previously, there is documentation that the Veteran was stationed aboard the USS Oriskany, which may have been located near the Republic of Vietnam during the Vietnam War. However, his personnel records expressly document that he served aboard the USS Oriskany from 1959 to 1960, which was prior to the Vietnam War. Thus, the evidence shows that he was not aboard a ship that may have had a presence in Vietnam during the requisite period when exposure to herbicides is presumed to have occurred. In consideration of this evidence, the Board finds that the Veteran did not have service in Vietnam. Consequently, he may not be presumed to have been exposed to herbicide agents under the provisions of 38 C.F.R. § 3.307. In view of the findings that the Veteran is not presumed to have been exposed to herbicide agents or shown to have actually been exposed to herbicide agents, his acute myocardial infarction is likewise not presumed to have been incurred in service. Therefore, the preponderance of the evidence is against service connection for the cause of the Veteran's death under the presumptive provisions relating to diseases associated with exposure to certain herbicide agents. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). For the foregoing reasons, the Board finds that the claim of service connection for the cause of the Veteran's death must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs