Citation Nr: 1417231 Decision Date: 04/17/14 Archive Date: 05/02/14 DOCKET NO. 11-22 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant and K.S. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to February 1974. The Veteran passed away in March 2009, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). The appellant testified at a hearing before the undersigned Veterans Law Judge sitting at the Cleveland RO in October 2012. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. A March 2009 certificate of death indicates that the Veteran died in March 2009 at the age of 59. The certificate of death lists the immediate cause of death as metastatic malignancy of the bronchus. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. Resolving reasonable doubt in the appellant's favor, the evidence of record establishes that the Veteran had temporary duty in Vietnam in 1972 and 1973, and metastatic malignancy of the bronchus is therefore presumed to have been incurred in active service. CONCLUSION OF LAW A disability incurred in or aggravated by active military service contributed substantially and materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1116, 1310, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Without deciding whether the notice and development requirements have been satisfied in this case, the Board is not precluded from adjudicating the issue of entitlement to service connection for the cause of the Veteran's death. This is so because the Board is taking action favorable to the appellant by granting the claim for entitlement to service connection for the cause of the Veteran's death. As such, this decision poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA death benefits are payable to the surviving spouse of a veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5, 3.312 (2013). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; 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 the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(b), (c). The Veteran died in March 2009 at the age of 59. The certificate of death reflects that the immediate cause of death was metastatic malignancy of the bronchus. At the time of the Veteran's death, service connection was not in effect for any disorder. The appellant contends that service connection for the cause of the Veteran's death is warranted. Specifically, during an October 2012 hearing before the Board, she argued that the Veteran's metastatic malignancy of the bronchus was caused by in-service exposure to herbicide agents. She reported that the Veteran had temporary duty in Vietnam in approximately 1972 or 1973. VA regulations provide that if a veteran was exposed to an herbicide agent (Agent Orange) during active service, service connection is presumed for the following disorders: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease (including, but 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 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309. 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 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service personnel records do not reflect that he served in Vietnam during the pertinent time period. In addition, the National Personnel Records Center (NPRC) was unable to verify that the Veteran had service in Vietnam. Nevertheless, in support of her claim, the appellant submitted numerous letters sent to her from the Veteran in late 1972 and early 1973 in which the Veteran informed her that he was sent on temporary duty status to Vietnam. In one letter, the Veteran stated that he was going to Vietnam for temporary duty for two months. In another letter, he indicated that he was stationed in Saigon, Vietnam. In another letter, the Veteran detailed an attack on the base at which he was stationed. The envelopes associated with the letters are dated in November 1972, December 1972, and January 1973. Additionally, in a December 2008 statement before his death, the Veteran reported that he served on temporary duty at Tan Son Nhut Air Base in Vietnam. In the absence of any evidence to the contrary, and affording the appellant the benefit of the doubt, the Board accepts the letters authored by the Veteran as proof that he served in Vietnam during the pertinent time period. Accordingly, the Veteran is presumed to have been exposed to Agent Orange. As noted above, respiratory cancers, including cancer of the bronchus, is a disease associated with herbicide exposure. 38 C.F.R. § 3.309(e). As the Veteran is presumed to have been exposed to Agent Orange during his active duty service, service connection for cancer of the bronchus is presumed. Accordingly, presumptive service connection for the cause of the Veteran's death is warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs