Citation Nr: 1509374 Decision Date: 03/04/15 Archive Date: 03/17/15 DOCKET NO. 12-23 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to herbicide exposure in service or due to contaminated drinking water at Camp Lejeune. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from July 1962 to July 1965. The Veteran died in March 2009. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction over this matter was subsequently transferred to the St. Louis, Missouri RO. The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008), created a new Section, 5121A, under Chapter 38 of the United States Code relating to substitution in case of death of a claimant who dies on or after October 10, 2008. As provided for in the statute, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title." Regulations were recently promulgated with respect to substitution claims. See 79 Fed. Reg. 52977 (Sept. 5, 2014). In April 2009, one month after the Veteran's death, the Appellant filed a claim for accrued benefits. The RO denied a claim for accrued benefits in June 2009 but never adjudicated the issue of substitution. 38 C.F.R. § 3.1010(c)(2) ("In lieu of a specific request to substitute, a claim for accrued benefits, survivors pension, or dependency and indemnity compensation . . . is deemed to include a request to substitute if a claim . . . or an appeal of a decision with respect to such a claim, was pending before the [AOJ] or the [Board] when the claimant died."). The Board in a separate decision has dismissed a pending claim concerning whether new and material evidence has been submitted to reopen a claim for a lumbar spine disorder. Reviewing the claim in a light most favorable to the Appellant, her request for substitution for the claims of service connection for hearing loss, and tinnitus and whether new and material evidence has been submitted to reopen a claim for a lumbar spine disorder have been raised by the record is pending but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The Veteran died in March 2009 from withdrawal of care, due to cardiac arrest from coronary artery disease and a dilated cardiomyopathy. 2. The evidence of record does not show that the Veteran served in the Republic of Vietnam between January 1962 and May 1975. 3. The evidence of record does not show that the Veteran served at Camp Lejeune. 4. At the time of the Veteran's death he was service connected for degenerative joint disease, status post fracture, right wrist ("right wrist disability"). 5. A service-connected disability was neither the principal nor a contributory cause of the Veteran's death. 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, 1154, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant has claimed that she is entitled to service connection for the cause of the Veteran's death. The Veteran died in March 2009 from withdrawal of care, due to cardiac arrest from coronary artery disease and a dilated cardiomyopathy. Specifically, she has asserted two different theories of entitlement: (1) cause of death due herbicide exposure; or (2) cause of death due to drinking contaminated water at Camp Lejeune. At the time of the Veteran's death, he was service connected for a right wrist disability. Having carefully considered the claim in light of the evidence of record, the Board finds that service connection for the cause of the Veteran's death due herbicide exposure or contaminated drinking water at Camp Lejeune is not warranted. The law provides that service connection may be established for the cause of a Veteran's death when a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110 and 1112. A service-connected disability is the principal cause of death when that 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). Accordingly, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. The record reflects that at the time of his death, the Veteran was service-connected for a right wrist disability. However, the Veteran died from a heart attack and the evidence does not suggest and the Appellant does not assert that this was related to his right wrist disability. Nevertheless, the Appellant may establish service connection for the cause of the Veteran's death, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection in the context of this claim, once the death of the Veteran has been established, there must be medical evidence, or in certain circumstances, competent lay evidence of in-service occurrence or aggravation of a disease or injury leading to death within the regulatory scheme; and competent medical evidence of a nexus between an in-service injury or disease and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999) (both discussing the factors of service connection). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), 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) (West 2014). If a Veteran was exposed to Agent Orange during service, certain listed diseases, including ischemic heart disease (including coronary artery disease), are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42600, at 42606-42607 (June 24, 2002). The evidence of record does not support the theory that the Veteran had active military service in Vietnam. An April 2011 response from the National Personnel Records Center indicated that there was no evidence in the file to substantiate any service in the Republic of Vietnam. While the Veteran's Form DD 214 noted 1 year and 2 days of foreign or sea service, the Veteran's personnel file clarifies that the Veteran served in Japan from October 1963 to March 1964, in Taiwan from March 1964 until April 1964 and in Japan again from April 1964 until October 1964. The Appellant submitted a picture to support her claim that the Veteran served in Vietnam; the picture does not clearly show the Veteran and there are no visible indications that the picture was taken in Vietnam. Given this, and in light of the service personnel records that fail to document any service in Vietnam, presumptive service connection for herbicide exposure is not warranted. However, when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In order for service connection to be granted on a direct basis there would need to be evidence that links the Veteran's death from cardiac arrest due to coronary artery disease and a dilated cardiomyopathy to an in service occurrence of an injury or disease and competent evidence of a nexus between the current disability and the in-service disease or injury. A review of Veteran's service treatment file does not reveal a diagnosis or treatment for any heart related issues in service. A June 1965 Report of Medical Examination reports that the Veteran was evaluated as clinically normal, including the heart. Nor is there any evidence which suggests the Veteran had any direct exposure to herbicides. Regarding the Appellant's assertion that the Veteran's death was due to his in-service exposure to water contamination while he was stationed at Camp Johnson, which is located at Camp Lejeune, VA acknowledges that there was contamination of the ground water at Camp Lejeune from 1957-1987. Specifically, in the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the volatile organic compounds (VOCs) trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. The contaminated wells supplying the water systems were identified and shut down by February 1985. It is important to note that to date, no definitive scientific studies have provided conclusive evidence that an individual who served at Camp Lejeune during the period of water contamination developed a particular disease as a result of that service. Many unanswered questions remain regarding the levels of water contamination at various base locations, the amount and type of exposure experienced by any given Veteran who served there, and the scientific probability that a Veteran's particular claimed disease resulted from the service at Camp Lejeune rather than from some other source. As a result, there are currently no "presumptive" diseases attributed to service at Camp Lejeune by statute, regulation, or VA policy. Accordingly, when VA receives a claim based on chemical exposure at Camp Lejeune, VA first must determine if the Veteran was stationed at Camp Lejeune and if so for how long and in what capacity. In this case, there is no evidence that the Veteran served at Camp Lejeune. A review of the Veteran's service personnel records does not support the contention that the Veteran was ever stationed at Camp Lejeune. Rather they reflect the Veteran was attached with organizations based out of St. Louis, Missouri, Memphis, Tennessee, and Glenview, Illinois and various units based out of California. Service medical records reflect treatment from stations in St. Louis, San Diego, Santa Anna, Memphis, San Francisco, and on his naval vessels while serving abroad. As such, service connection for the cause of the Veteran's death under this theory is not warranted. The preponderance of the evidence is against the Appellant's claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Further, there is nothing in the Veteran's post-service treatment records that diagnosis the Veteran with a chronic heart disability within one year of his service. Nor is there evidence linking the heart disability to an event or incident in service. The only evidence suggesting a link to service is the Appellant's own statement. While the Appellant is certainly competent to describe the Veteran's symptoms, she is not competent to render such an opinion as to the cause of a heart disability as the evidence does not demonstrate that she possesses the ability, knowledge, or experience to provide such an opinion in this case. Unlike some disorders, the etiology of heart disabilities goes beyond a simple and immediately observable cause-and-effect relationship and would require review and interpretation of clinical tests and knowledge of the workings of the heart and diseases which affect it. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). As there is no evidence of anything in service and no evidence of a nexus, entitlement to service connection for a heart disability is not warranted. As the preponderance of the evidence is against the Appellant's claim and there is no doubt to be resolved. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board finds the requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In this case, the VCAA duty to notify was satisfied by way of the April 2011 letter. The Appellant was notified in April 2011 of the disorders for which the Veteran was service connected, and provided explanations of the evidence and information required to substantiate a claim based on a previously service- connected condition; as well as the evidence and information required to substantiate a claim based on a condition not yet service connected. The claim was readjudicated in November 2012. Concerning the duty to assist, the RO has obtained the service treatment records and VA outpatient treatment records. The Appellant submitted lay statements in support of her claim. In connection with the herbicide exposure claim, VA obtained information regarding the Veteran's possible service in Vietnam, reviewed his personnel records and DD-214. The Board notes that hospital records from the hospital where the Veteran passed away have not been obtained. In this regard, however, the RO advised the Appellant in April 2011 that if a private facility treated the Veteran they may be able to request the records and provided a VA authorization form to complete. The Appellant did not respond. She was provided another letter and VA authorization forms in March 2013 and again failed to submit any completed authorizations. It has been held that "[t]he duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA's duty is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role. Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992); Olsen v. Principi, 3 Vet. App. 480 (1992). There is no indication that there are additional records that have yet to be requested or that additional examinations are in order. As such, the duty to assist has been fulfilled. ORDER Service connection for cause of death is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs