Citation Nr: 1430833 Decision Date: 07/09/14 Archive Date: 07/15/14 DOCKET NO. 09-08 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to July 1967. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2008 of a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2012, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. According to the death certificate, the Veteran died in June 2007 and the cause of death was respiratory failure due to non-small cell lung cancer (lung cancer). 2. At the time of death, the Veteran did not have a service-connected disability. 3. The Veteran did not serve within the land borders, including the inland waters, of the Republic of Vietnam during the Vietnam era and actual exposure to Agent Orange or to asbestos is not shown. 4. Lung cancer was not affirmatively shown to have had onset during service; lung cancer as a chronic disease was not manifested to a compensable degree within one year after the separation from service in 1967, lung cancer was not related to an injury, disease, or event in 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. §§ 1110, 1112, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for dependency and indemnity compensation, including the cause of death, notice under 38 U.S.C.A. § 5103(a) must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his death, (2) an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition, and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in October 2007. The VCAA notice substantially complied with Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); of Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007) (notice regarding elements of a claim of service connection for the cause of the Veteran's death, where the Veteran did not have any service-connected disability at the time of death); and of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the Veteran's service personnel and treatment records and VA records. The RO obtained a VA medical opinion on the question of whether the Veteran's death was related to exposure to asbestos. As the VA medical opinion is based on a review of the Veteran's history and addresses the question posed in sufficient detail so that the Board's review is a fully informed one, the VA opinion is adequate to decide the claim. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there are no additional records to obtain, the Board concludes that no further assistance to the Appellant in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles of Service Connection for Cause of Death When a Veteran dies from a service-connected disability, the Veteran's surviving spouse is entitled to dependency and indemnity compensation. 38 U.S.C.A. § 1310. A death will be considered to result from a service-connected disability when the evidence establishes that a disability that was causally related to service caused the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection requires: (1) the existence of a disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the claimed disability and the disease or injury incurred or aggravated during service. If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including cancer, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curium, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Evidence According to naval personnel records, the Veteran was born in 1944 and he served on active duty in the United States Navy from June 1963 to July 1967, including service aboard the USS Henry W. Tucker (DD-875) (Tucker) from August 29, 1963, to June 6, 1964, and aboard the USS Everett F. Larson (DD-830) (Larson) from June 29, 1964, to June 27, 1967. He was authorized to wear the Vietnam Service Medal for service aboard the Larson from August 7, 1965, to September 26, 1965. He served as a seaman and in ship's service. According to official naval records, while the Veteran was aboard the Tucker from August 29, 1963, to June 6, 1964, the ship was in the Boston naval shipyard for overhaul from August 1963 to December 1963. On May 26, 1964, the Tucker departed for the western Pacific and then to the South China Sea, where the Tucker was assigned antisubmarine patrol off the coast of Vietnam. The Veteran was transferred from the Tucker to the Naval Hospital on Midway Island on June 6, 1964 and then to the Larson. For the period from June 1963 to July 1967, the Tucker operated on inland Qui Nhon Bay during 1965 and the Mekong River Delta area during March 1966, after the Veteran was transferred from the Tucker. See M21-1MR, Part IV, Subpart ii, 2.C. 10.k. According to an unofficial history, while the Veteran was aboard the Larson from June 29, 1964, to June 27, 1967, the Larson conducted shore bombardment into North Vietnam from August 27, 1965, to September 26, 1965. In August 1966 and September 1966, the Larson was assigned to Yankee Station (about 100 miles off the coast of South Vietnam). On October 1 and until October 6, 1996, the Larson was in Danang Harbor for gunfire support activities and then returned to Yankee Station. For the period from June 1963 to July 1967, the Larson did not operate in the inland waterways of Vietnam, did not dock to shore or pier in Vietnam, did not send crew members ashore, or did not operate small craft from the ship delivering supplies or troops ashore. See M21-1MR, Part IV, Subpart ii, 2.C. 10.k. According to the death certificate, the Veteran died in June 2007 and the cause of death was respiratory failure due to non-small cell lung cancer (fatal lung cancer). No other condition was listed as contributing to the cause of death. An autopsy was not performed. At the time of death, the Veteran did not have an adjudicated service-connected disability. The service treatment records contain no complaint, finding, history, treatment, or diagnosis of a respiratory abnormality or of the fatal lung cancer or of asbestos exposure. Chest X-rays on entrance and separation examinations and in the interim were negative. After service VA records show that in February 1998 history included 20 to 30 years of smoking one pack of cigarettes a day. On X-ray, the lung fields were clear. VA records show that in October 2005 the Veteran was hospitalized to evaluate a transient ischemic attack or cerebral vascular accident. The Veteran had quit smoking. A MRI showed a brain mass. A CT scan showed a lung mass. A biopsy of the lung mass was read as non-small cell carcinoma. The diagnosis was non-small cell lung carcinoma with metastasis to the brain. In statements in September and October 2006 and in a report of contact in March 2007, the Veteran stated that lung cancer was caused by exposure to Agent Orange while aboard the USS Everett F. Larson in the waters off Vietnam and on the shores of Vietnam. He also stated that he was exposed to asbestos. In January 2009, VA obtained a medical opinion of the question of whether the Veteran's fatal lung cancer was due to exposure to asbestos in service. After a review of the Veteran's history and the medical literature, the VA physician expressed the opinion that it was less likely than not the fatal lung cancer was caused by in-service asbestos expourse. The VA physician explained that "significant" asbestos exposure is a risk factor for asbestosis, which increases the risk for non-small cell lung cancer, and that smoking is also a risk factor for non-small cell lung cancer, which is the most common type of lung cancer. The VA physician stated that in the absence of evidence of significant asbestos exposure or evidence of asbestosis the cause of death was not related to service without being speculative. In a statement in October 2007, in the notice of disagreement in October 2008, and in the substantive appeal in February 2010, the Appellant asserted that the Veteran's death was the result of the Veteran's exposure to Agent Orange and asbestos while in the Navy, including the time spent when the Veteran's ship was in a shipyard. In August 2012, the appropriate federal custodian of naval records reported that there was no record to prove that the Veteran was exposed to asbestos. After the issuance of the supplemental statement of the case in December 2012, the Appellant did not submit additional argument or evidence. Analysis On the basis of the service treatment records alone, in the absence of evidence by complaint, finding, history, symptom, treatment, or diagnosis of a respiratory abnormality or lung cancer or asbestos exposure, the fatal lung cancer was not affirmatively shown to have had onset during service. For this reason, service connection under the theory of affirmatively showing inception in service is not warranted. 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service). Although lung cancer is listed as a chronic disease under 38 C.F.R. § 3.309, as the service treatment records or other evidence after service does not show that the fatal lung cancer was "noted" during service, the theories of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (presumption of service connection for a chronic disease manifested during service and then again at a later date applies only to enumerated chronic diseases under 38 C.F.R. § 3.309(a) and continuity of symptomatology avenue to service connection is available only for enumerated chronic diseases under 38 C.F.R. § 3.309(a) that are "noted during service" under 38 C.F.R. § 3.303(b), which is interpreted as a condition indicative of, but not dispositive of a chronic disease). And the record does not show that the fatal cancer as a chronic disease, initially diagnosed in 2005, more than 38 years after service in 1967, was manifest during the one year presumptive period for a chronic disease after service. 38 U.S.C.A. § 1112, 38 C.F.R. §§ 3.307, 3.309. As for service connection for the fatal lung cancer based on an initial diagnosis after service, when all of the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d), the Appellnat as a layperson is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 1377. And the Appellant as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competent lay evidence means evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Cancer is not simple medical condition that the Appellant is competent to identify, because cancer is not a type of condition under case law that has been found to be capable of lay observation. See Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). As cancer is not a simple medical condition, that is, one capable of lay observation, to the extent that Appellant suggests that cancer was present during service and before 2005, the lay evidence is not competent evidence. As for the Appellant's assertion that the fatal lung cancer was due to exposure to Agent Orange and asbestos, the assertion is an inference, that is, an opinion, rather than a statement of fact. And no factual foundation has been established to show that Appellant is qualified through specialized education, training, or experience to offer an opinion on the cause of the fatal lung cancer. For this reasons, the Appellant lay opinion is not competent evidence. Since the Appellant's lay evidence is not competent evidence, the lay evidence is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to the claim. As for the Appellant describing a contemporaneous medical diagnosis, there is no medical diagnosis of lung cancer before 2005. As the Appellant's lay evidence is not competent evidence, the Board considers the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. As for the Appellant describing symptoms that later support a diagnosis by a medical professional, no medical professional has attributed the fatal lung cancer to an injury, disease, event in service, or to claimed exposure to Agent Orange or asbestos. On the question of exposure to Agent Orange, there is a presumption of service connection for lung cancer as a result of exposure to Agent Orange if a Veteran served in the Republic of Vietnam during the Vietnam era. The Vietnam era is the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307, 3.309(e). "Service in Vietnam" for purpose of applying the presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). Stated in another way, a Veteran must have been present on the landmass or inland waters of Vietnam in order to benefit from the presumption. See Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit)(confirming VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. A Veteran who did not go ashore from a ship on which he served in Vietnamese coastal waters is not entitled to presumptive service connection due to alleged exposure to Agent Orange. See Haas at 1194. See VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). In addition, "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM). See Haas at 1196. Service aboard a ship that anchored in Da Nang Harbor does not constitute inland waterway service or qualify as docking to the shore. See M21-1MR, Part IV, Subpart ii, 2.C. 10.k. While the Veteran served aboard the Tucker, the Tucker did not operate in the inland water ways of Vietnam. While the Veteran served aboard the Larson, the Larson was assigned to Yankee Station (about 100 miles off the coast of South Vietnam), but from October 1 and until October 6, 1996, the Larson was in Danang Harbor for gunfire support activities. As there is no evidence that the Larson operated in the inland waterways of Vietnam, or docked to shore or pier in Vietnam, or sent crew members ashore, or operated small craft from a ship delivering supplies or troops ashore, the presumption of exposure to Agent Orange does not apply. As the presumption of exposure to Agent Orange does not apply, the presumption of service connection for lung cancer due to exposure to Agent Orange does not apply. 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing, if a Veteran did not serve in the Republic of Vietnam during the Vietnam era, 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). Proof of direct service connection between exposure to Agent Orange and lung cancer entails showing that exposure to Agent Orange during service actually caused lung cancer, which developed years later. Actual causation carries a very difficult burden of proof. See Combee, at 1042. While the Appellant asserts that the Veteran was exposed to Agent Orange, there is no official service department documentation or any other objective evidence to support that the Veteran was actually exposed to Agent Orange during service and as actual exposure to Agent Orange is not shown, proof of direct causation cannot be established, and the claim fails under Combee. On the question of exposure to asbestos, exposure to asbestos is a known risk factor for lung cancer. Lung cancer associated with asbestos exposure originates in the lung parenchyma. There is no presumption that a Veteran was exposed to asbestos in service. Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); M21-1MR, Part IV, Subpart ii, 2.C. 9. The appropriate federal custodian of naval records reported that there was no evidence that the Veteran was exposed to asbestos. Even assuming that the Veteran was exposed, a VA physician, after a review of the Veteran's history and the medical literature, expressed the opinion that it was less likely than not the fatal lung cancer was caused by in-service asbestos exposure. The VA physician noted that the Veteran smoked and that smoking was known to increase the risk of lung cancer. The VA physician explained that in the absence of evidence of significant asbestos exposure or evidence of asbestosis the cause of death was not related to service without being speculative. As the opinion of the VA physician is based on a review of the Veteran's history and as the VA physician provided a rationale for the conclusion reached in the opinion, the opinion constitutes competent and persuasive medical evidence that the fatal cancer was not caused by exposure to asbestos. There is no other medical evidence to consider and weigh against the opinion of the VA physician. As there is no favorable medical evidence, the preponderance of the evidence is against the claim that the fatal lung cancer was caused by claimed exposure to Agent Orange or asbestos, and the benefit-of-the-doubt standard of proof does not apply, and service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. § 5107(b). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs