Citation Nr: 1614178 Decision Date: 04/07/16 Archive Date: 04/25/16 DOCKET NO. 09-47 937 ) 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: The American Legion ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1969 to December 1973, December 1974 to May 1981, and October 1984 to September 1993. The Veteran died in July 2008. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Additionally, as noted in the Board's July 2014 Remand, the Roanoke RO issued an "Agent Orange Decision" in August 2012 denying exposure to Agent Orange. In December 2012, the Appellant indicated that she would like to "reclaim/activate claim for exposure to agent orange related to his illness. He completed step 1 of a claim prior to his death." The Board considered whether this statement constituted a notice of disagreement (NOD) with the August 2012 rating decision or a new claim to reopen her previously denied claim for entitlement to accrued benefits. However, the Board ultimately found that the assertions regarding exposure to Agent Orange in service would be considered in the adjudication of her claim for service connection for cause of death. As she has not indicated that she is attempting to file service connection for another specific disability related to Agent Orange exposure or that she was attempting to reopen a claim for accrued benefits, the Board found that no further development was needed. Further, the Board notes VA, in an October 25, 2012 letter, notified the Appellant that it had overpaid her $539.00 and that this money would be withheld from her future benefits. In December 2012, she disputed the overpayment, but this claim was never addressed. In the July 2014 decision, the Board referred the issue of entitlement to waiver of recovery of an overpayment in the amount of $539.00 for adjudication. However, in the representative's March 2016 brief it was explained that the issue was the validity of the debt, not whether waiver was warranted. As such, the issue of the validity of the debt is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The Veteran was service connected for hemorrhoids at a noncompensable evaluation when he died. 2. The Veteran died from restrictive cardiomyopathy, due to diabetes, hypertension, renal failure, coronary artery disease, and liver disease. 3. A service-connected disability was not the immediate or underlying cause of the Veteran's death, and a service-connected disability was not etiologically related to the cause of the Veteran's death. CONCLUSION OF LAW A service-connected disability did not contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION For a claim of service connection for the cause of the Veteran's death, 38 U.S.C.A. § 5103(a) notice must be tailored to the claim. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds sub nom. Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009). The notice should 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 cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App at 352-353. A September 2008 letter satisfied VA's duty to notify provisions under the VCAA and Hupp. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter advised the Appellant what information and evidence was needed to substantiate her claim for the cause of the Veteran's death. The letter specifically advised her that she must either show that a contributory cause of the Veteran's death was due to injury or disease that began during service or that an already service-connected disability(ies) caused or contributed to his death. This letter also informed the Appellant about what information and evidence she must submit, including enough information for the RO to request records from any identified sources. In particular, this letter advised the Appellant of what disorders were service connected at the time of the Veteran's death. The letter also explained what evidence and information was required to substantiate a claim based on a condition not yet service connected. VA also has a duty to assist the Appellant in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. The Veteran's service treatment records (STRs) from 1969 to 1972 have been associated with the claims file. Exhaustive efforts have been made to locate service treatment records from December 1974 to May 1981, and from October 1984 to September 1993, to no avail. Prior to his death, in a statement of the claim received by VA in July 2006, the Veteran indicated that his STRs could be found at Boone Branch Health Clinic. He further asserted that, if these records could not be located, he could submit a copy of his service treatment records. A May 2006 response from the Department of the Navy stated that the Outpatient Medical Record from the Admiral Joel T. Boone Branch Health Clinic was checked out to another command /Service Member and was not maintained at the facility. Therefore, it appears that these records may have been with the Veteran all along. Further, a May 2006 response from the Naval Medical Center in Portsmouth, VA, submitted all the relevant medical records it had from 1993. A June 2006 response from the National Personnel Records Center (NPRC) to a request for the Veteran's records indicated that all requested medical/dental records were mailed. A March 2009 response from the NPRC to a request for records indicated that there were no service treatment records at Code 13 for this person. While VA failed to locate all of the Veteran's service treatment records, it investigated all available avenues. Indeed, as was noted earlier, prior to his death the Veteran indicated in a written statement that he had his STRs. There is no indication that further attempts to obtain these records would yield additional records. The Board remanded this case in July 2014 to notify the Appellant that 1) VA exhausted all avenues to obtain the Veteran's STRs from December 1974 to May 1981, and from October 1984 to September 1993, and 2) the Appellant could submit alternative sources of evidence to support her claim. VA substantially complied with the remand directives when it notified the Appellant of these issues in September 2014. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Appellant has not identified any additional, relevant evidence that has not been requested or obtained. In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Vietnam Presumptions The Appellant contends the Veteran was exposed to herbicides while he was in the Navy "in Vietnam," which in turn caused the diseases which caused his death. See July 2009 statement. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). When such a veteran contracts a disease associated with exposure to herbicides (listed in 38 C.F.R. § 3.309(e)) that becomes manifest to a compensable degree within the time period specified in 38 C.F.R. § 3.307(a), the disease will be considered to have been incurred in service, even though there is no evidence of such a disease during the period of service. Service in Vietnam means actual service in the country of Vietnam during the period from January 9, 1962, to May 7, 1975. Service in the waters offshore or service in other locations during the Vietnam period is considered service "in Vietnam" only if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). VA interprets 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, and that interpretation has been upheld by the Federal Circuit. Haas, 525 F.3d at 1193-94. A veteran who never went ashore from a ship on which he served in Vietnamese coastal waters is not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure. Id. "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR (M21-1MR), M21-MR, pt. IV, subpt. ii, §1, ch. H, 28, "Considering Claims Based on Service Aboard Ships Offshore the RVN." As an appendix to that section of the M21-1MR, VA maintains a list of ships which operated primarily or exclusively on Vietnam's inland waterways, ships which operated temporarily on Vietnam's inland waterways or docking to the shore, and ships which operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. Id. Cause of Death To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially, or materially, to the cause of death. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2015). 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, 1112 (setting forth criteria for establishing service connection). 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). To be considered a contributory cause of death, it must be shown that the service connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service connected disability casually shared in producing death; rather, a causal connection must be shown. 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. 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 resulting 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. 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)(3), (4) (2015); Lathan v. Brown, 7 Vet. App. 359 (1995). Analysis At the time of his death, the Veteran was service connected for hemorrhoids at a noncompensable evaluation. He died from restrictive cardiomyopathy, due to diabetes, hypertension, renal failure, coronary artery disease, and liver disease. The Veteran's personnel records show he served during the Vietnam era, as defined above, but not in Vietnam. He reported to the U.S.S. Guadalupe (Guadalupe) in May 1972 at Subic Bay in the Philippines. In June 2011, the Defense Personnel Records Information Retrieval System (DPRIS) noted that between May and July 1972, the Guadalupe "commenced a total of five line swings providing materials to the units of the Seventh Fleet operating " in Vietnam's coastal waters. DPRIS further stated the Guadalupe re-stocked supplies at Subic Bay and "made Ports of Call in Sasebo Japan and Cubi Point" in the Philippines. The Guadalupe sailed to California in July 1972, arriving one month later. The Navy put it in dry dock in September 1972. Critically, DPRIS concluded the Guadalupe did not dock or operate in inland Vietnamese waters. No evidence - including in the Veteran's personnel records, the ship's deck logs, or the Veteran's STRs or personnel records - merits a finding of herbicide exposure - on either a presumptive or direct basis. The Appellant has proffered nothing to support her claim. Moreover, no medical evidence in the claims folder discusses the etiology of the Veteran's cause of death. Accordingly, the claim is denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs