Citation Nr: 1340564 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-09 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran had active naval service from June 1961 to September 1980. The Veteran died in February 2008. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Initially, the Board notes that this claim has been subject to a stay on all cases affected by the United States Court of Appeals for Veterans Claims' (Court) decision in Haas v. Nicholson, 20 Vet App 257 (2006) that reversed a decision of the Board which denied service connection for disabilities claimed as a result of exposure to herbicides. On May 8, 2008, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued its decision in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) wherein it reversed the Court's decision, and issued mandate in Haas effective October 16, 2008. The U.S. Supreme Court has denied further review of that decision, in Haas v. Peake, 129 S. Ct. 1002 (2009). In light of the foregoing and Chairman's Memorandum 01-09-03 (January 22, 2009), the Board may now proceed in the instant appeal. FINDINGS OF FACT 1. It is not shown that the Veteran set foot on land in the Republic of Vietnam or was exposed to an herbicide agent (to include Agent Orange) during service. 2. The Veteran died in February 2008 due to metastatic prostate cancer. 3. At the time of the Veteran's death, service-connection was not in effect for any disability; service connection was thereafter granted for bilateral hearing loss disability in the March 2009 decision on appeal, effective from January 2008. 4. The Veteran's prostate cancer developed many years after his separation from active service and was not etiologically related to the Veteran's active service. CONCLUSION OF LAW A disability incurred in or aggravated by active service did not cause or substantially and materially contribute to the Veteran's cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the effective-date element of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that when VA receives a detailed claim for DIC under 38 U.S.C. § 1310 , it must provide a detailed notice to the claimant. Specifically, the Court held that, under section 38 U.S.C. § 5103(a), the notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. In a March 2008 letter, the RO informed the appellant of the evidence needed to substantiate her claim, and informed her of the evidence that she should submit and that the RO would obtain on her behalf. At that time, service connection was not in effect for any disability. Therefore, there is no prejudice in not advising the appellant of the same. The March 2009 rating decision on appeal granted service connection for hearing loss, and further explained that no disability at the time of the Veteran's death. An additional letter was sent in January 2010 informing her of the evidence needed to substantiate her claim that the Veteran's fatal cancer was due to herbicide exposure in service. The January 2010 Statement of the Case readjudicated the claim. Although the appellant was not provided sufficient notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to her in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also finds the appellant has been afforded adequate assistance in response to her claim. The Veteran's service treatment records (STRs) and service personnel records (SPRs) are on file. Private treatment records identified by the appellant are associated with the record. The record also contains communications from the National Personnel Records Center (NPRC) that there is no documentation that the Veteran had service in Vietnam. A formal finding was made by the RO in September 2013 that personnel records and verified information compel a conclusion by VA that Agent Orange exposure is not conceded. The Board also finds that no additional development, as for medical opinions is necessary. In Paralyzed Veterans of America , et. al., v. Secretary of Veterans Affairs, the Federal Circuit noted that 38 C.F.R. § 3.159(c)(4)(i) requires that a claimant establish that he or she has suffered an event, injury, or disease in service in order to trigger VA's obligation to provide a VA medical examination or obtain a medical opinion. Here, there is no medical evidence of prostate cancer until many years after the Veteran's naval service. A medical opinion is not necessary to decide this claim, as such opinion could not establish related disease or injury in service. See also Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (the Board is not required to accept a medical opinion that is based on the appellant's recitation of medical history). Evidentiary development in this matter is complete to the extent possible. Appellant has not identified any other pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. II. Legal Criteria Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5 (2013). Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1312; 38 C.F.R. § 3.312. 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. 38 C.F.R. § 3.312(a). A service-connected disability is one which was incurred in or aggravated by active service; one which may be presumed to have been incurred or aggravated during such service; or one which was proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, may be presumed to have been incurred or aggravated in service if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease initially 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). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). Specifically, the VA General Counsel has concluded that in order to establish qualifying service in Vietnam, a veteran must demonstrate actual duty or visitation in the Republic of Vietnam, and that service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam. VAOPGCPREC 27-97. Thus, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the service person must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, to include prostate cancer, shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service. Notwithstanding the foregoing presumptive provisions, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method for showing causation. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis The appellant asserts that the Veteran's prostate cancer which caused his death, documented as first diagnosed more than two decades following service separation, was a result of in-service exposure to herbicide. She does not allege, nor does the record show, that he had prostate cancer in service or within one year of separation from service. As the record is uncontroverted in this regard, the Board finds that service connection based on the presumptions for malignant tumors manifested to a compensable degree within one year after discharge from service are not for application. See 38 C.F.R. §§ 3.307, 3.309. The critical issue in this case is whether the Veteran was exposed to herbicide during his service. Appellant asserts two theories: (1) the Veteran flew to Vietnam from his ship, the USS Enterprise, and actually entered the country, and (2) he was exposed to Agent Orange on the ship when the aircraft, personnel, cargo and supplies returned to the ship from Vietnam. According to the certificate of death, the Veteran died of metastatic prostate cancer in February 2008. Primary prostate cancer was an immediate or contributory cause of death. At the time of the Veteran's death, service connection was not in effect for any disability. Although the Board notes that service connection was granted for bilateral hearing loss disability in the March 2009 rating decision on appeal based on a January 2008 claim the Veteran filed prior to his death, it is undisputed that the sole basis of appellant's claim is presumptive service connection for prostate cancer based on exposure to herbicide. A review of the post-service medical evidence reveals initial diagnosis of prostate cancer in November 2003 followed by radiation therapy. Metastatic prostate cancer was found in January 2007, with bone involvement noted. Sadly, despite treatment, the Veteran expired in February 2008. With regard to service connection on a direct basis based on 38 C.F.R. § 3.303, it is undisputed that prostate cancer did not manifest in service and that no medical professional has asserted that his prostate cancer was due to any incident of service. With regard to presumptive service connection based on herbicide exposure, and the appellant's contention that the Veteran visited Vietnam, the Veteran's SPRs do not show that he had service in Vietnam, such that exposure to herbicides to include Agent Orange is presumed. 38 C.F.R. §§ 3.307(a)(6), 3.313(a). Despite exploring all appropriate channels, VA has been unable to verify any service in Vietnam, as set forth in the RO's September 2013 formal decision that exposure to herbicides could not be conceded. In this regard, the Board notes that NPRC records do not verify such service. Rather, all records confirm that the Veteran was on a deep water vessel off the coast of Vietnam. The appellant was asked to assist in establishing alternative verification that the Veteran was in Vietnam, but has been unable to do so. Although she reported that her husband had flown into Vietnam from the ship the USS Enterprise, to visit his brother, she later reported that her brother-in-law was deceased and could not verify this fact. She also could not provide any definitive dates such that a 60 day window of time for ship's records could be searched by the Joint Services Records Research Center (JSRRC). In September 2013, VA also reviewed the Veteran's SPRs again and reviewed the official list of ships associated with Vietnam war-era and Exposure to Herbicides, and found that neither the Enterprise or any of the other vessels aboard which the Veteran served (the USS Little Rock or the USS America) were listed. Again, no record was found in his SPR to verify that the Veteran actually went into Vietnam during his service. Thus, because it cannot be shown that the Veteran served on the ground in Vietnam, it cannot be presumed that he was exposed to herbicides. Therefore, the presumption of service connection afforded for prostate cancer as a disease associated with exposure to herbicides, specifically Agent Orange, is not for application for his cause of death. The Board turns to the appellant's contention that her husband was exposed to Agent Orange on the ship inasmuch as aircraft, personnel and cargo that were in Vietnam came back to the ship. To this end, it is noted that, notwithstanding the foregoing presumptive provisions, appellant is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, supra. Nonetheless, in addition to proving exposure, medical evidence is also required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). While the appellant has argued that the Veteran was indirectly or secondarily exposed to herbicides by virtue of the fact that he was on a ship that was stationed in the waters off Vietnam, and therefore exposed to the aircraft, personnel, cargo, and supplies which were returned to the ship from Vietnam, that theory is not one that has been accepted by the VA as an indication of actual exposure to herbicide agents as contemplated by the statute, or has otherwise been supported by historical or medical evidence. There is no presumption of such secondary exposure for those who, for whatever reason, were in contact with equipment or personnel returning from Vietnam. See VA Adjudication Procedure Manual, M21-1MR Part IV.ii.2.C.10.m, quoting a memorandum from the JSRRC that reports it cannot document or verify that a shipboard Veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. In this case, there is no evidence that the Veteran was exposed to herbicides. In short, the Board finds that the preponderance of the evidence is against this claim. Despite significant development, the record fails to establish that the Veteran was exposed to herbicides. The Board has considered the appellant's statements that the Veteran's death was related to his having been in Vietnam in service. However, her opinion is outweighed by the official record which fails to document that he was in Vietnam. Consequently, entitlement to service connection for the cause of the Veteran's death is not warranted. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs