Citation Nr: 1633909 Decision Date: 08/26/16 Archive Date: 08/31/16 DOCKET NO. 13-28 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for lung cancer, to include as due to exposure to herbicides and diesel fuel, for accrued benefits purposes. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1970, with one year and 5 days of prior active service in the United States Army. He died in July 2009. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In May 2015, the Board remanded the appeal for further development. The Board is grateful for the Veteran's honorable service, and regrets that a more favorable outcome could not be reached on the claims. FINDINGS OF FACT 1. The Veteran died in July 2009. The death certificate lists the immediate cause of death as nonsmall cell lung cancer. 2. The Veteran's lung cancer was not attributable to service. 3. At the time of his death, the Veteran was service-connected for traumatic chondromalacia of the right knee (20 percent disabling), and traumatic hallux rigidus of the right foot (10 percent disabling). 4. The service-connected right knee disability and right foot disability were not a principal or contributory cause of the Veteran's death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lung cancer for accrued benefits purposes have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1137, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.1000 (2015). 2. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1101, 1110, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.5, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Lung Cancer Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). An accrued benefits claim arises after a Veteran has died. Although a Veteran's claim does not survive his death, see Landicho v. Brown, 7 Vet. App. 42, 47 (1994), certain individuals may be entitled to accrued benefits under certain conditions. Among requirements for accrued benefits are that a claim must be filed within the year after the Veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. An individual entitled to accrued benefits may be paid periodic monetary benefits to which a Veteran was entitled at the time of his death under existing ratings or based on evidence in the file at the time of his death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. The United States Court of Appeals for the Federal Circuit has made it clear that, in order to support a claim for accrued benefits, a Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1296 (Fed. Cir. Feb. 11, 1998). An accrued benefits claim is, under the law, derivative of, and separate from, the Veteran's claims. See Zevalkink v. Brown, 6 Vet. App. 483, 489-490 (1994), aff'd, 102 F.3d 1236 (Fed. Cir. 1996). Thus, in the adjudication of a claim for accrued benefits, the claimant is bound by the same legal requirements to which the Veteran would have been bound had he survived to have his claims finally decided. The procedural requirements for the appellant's claim for accrued benefits have been met as the claim was received within one year of the Veteran's death, and, at the time of his death, the Veteran had claims pending for entitlement to service connection for lung cancer. See July 2008 Rating Decision & October 2008 Notice of Disagreement. Turning to the merits of the claim, there is no dispute that prior to the Veteran's death, he had nonsmall cell lung cancer. See, e.g., Death Certificate. On the Veteran's August 1967 entrance examination, no abnormalities involving the lungs or chest were found and the Veteran did not report any related problems on the accompanying Report of Medical History. The service treatment records (STRs) are devoid of complaints, treatment, or diagnoses of lung cancer or any lung abnormality. In August 1965, the Veteran reported upper respiratory symptoms, including shortness of breath. The physician noted that he smoked four packs of cigarettes per day, and advised him to stop. No findings were made involving his lungs. In May 1969, the Veteran again reported shortness of breath. There was no cough or wheeze. His lungs and heart were examined, and were normal. The Veteran reported episodes of severe anxiety with tremors. He was having family problems and was changing his religion. He was prescribed Valium and referred to the mental health clinic. On the May 1970 separation examination, no abnormalities of the lungs or chest were found. While the STRs lack documentation of any abnormality of the chest or lungs, as described by the Board in the May 2015 remand, prior to his death, the Veteran reported that he helped with operating and fueling heavy and light machinery while stationed in Korea. Additionally, he was assigned to a number of generators that required fueling on a regular basis. He indicated that the machinery and generators required diesel fuel. The Veteran asserted that exposure to diesel fuel during service contributed to his lung cancer. Based on these admissible and believable statements, as well as personnel records and documents from the United States Armed Services Center for Research of Unit Records (USASCRUR), the Board determined that the Veteran had been exposed to diesel fuel in service. The Board sought a medical opinion on the etiology of the Veteran's lung cancer. Although the opinion was sought in connection with the claim for service connection for the cause of the Veteran's death, it is informative as to the claim for service connection for lung cancer for accrued benefits purposes. In January 2016, a VA examiner reviewed the claims file and opined that it was less likely than not that the Veteran's lung cancer was incurred in or caused by service. The examiner noted his exposure to diesel fuel in service. However, the examiner found no complaints or treatment for any pulmonary condition in service, and noted that he had not been exposed to diesel fuel at a concentration and duration that would predispose the development of lung cancer. There was no diagnosis of lung cancer until more than 35 years after military discharge. Additionally, medical records indicated that while he stopped in 2002, during his lifetime the Veteran had smoked 3-4 packs of cigarettes per day. The examiner stated that tobacco use is clinically well-known to be a significant risk factor in the development of lung cancer. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The January 2016 medical opinion is adequate for the purposes of adjudication. The examiner addressed the contentions of service connection, but opined that the Veteran's lung cancer was not related to service, including to his exposure to diesel fuel. The examiner based his conclusions on an examination of the claims file, the Veteran's diagnostic reports, and medical literature. The only other evidence to the contrary of the VA examination report is the lay evidence. The Board finds that the Veteran's lay assertions, and those of the appellant, are both competent and credible. Consequently, the Board will weigh the lay statements against the medical evidence. The January 2016 VA examiner was a medical professionals who reviewed the claims file and considered the reported history including the Veteran's own lay assertions. The examiner, in providing the requested medical opinions, used his expertise in reviewing the facts of this case and determined that the lung cancer was not related to service. Another etiology, tobacco use, was identified. As the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence, including the lay statements, the opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In weighing the VA examiner's opinions against those of the Veteran and the appellant, the Board finds that the credibility and probative value of the specific and reasoned statement of the trained medical professionals outweighs that of the general lay assertions. The Board has further considered the matter of service connection based on herbicide exposure. 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). VA regulations define that "service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a) (6) (iii). Current VA regulations provide that the respiratory cancers, including lung cancer, shall be service-connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied. There is no indication, and neither the Veteran nor the appellant have contended, that the Veteran had qualifying service in the Republic of Vietnam. His DD Form 214 indicates 1 year, 4 months, and 12 days of foreign service, but it specifies that this service was in Korea. Personnel documents show service in Korea, but not in Vietnam. Responses to requests through the Personnel Information Exchange System (PIES) in June 2008 and July 2009 indicated there was no evidence to substantiate any service in the Republic of Vietnam. As for herbicide exposure in Korea, the Veteran's personnel records show that he served there from March 12, 1968 to April 22, 1969. Regulations provide that a veteran who, during active military naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period 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 C.F.R. § 3.307(a)(6)(iv). The Veteran clearly served in Korea in the time frame contemplated by 38 C.F.R. § 3.307(a)(6)(iv). However, his unit of assignment was Company B, 44th Engineer Battalion (44th Engr Bn). VA's Adjudication Procedure Manual (M21-1) contains a list of service units that have been recognized by the Department of Defense as having served in areas along the Korean DMZ. The Veteran's unit is not among those identified as operating in the Korean DMZ during the qualifying time period. M21-1, Part IV, Subpart ii, Chap. 1, Sec. H.4.b. (accessed August 17, 2016). Thus, herbicide exposure may not be presumed pursuant to 38 C.F.R. § 3.307(a)(6)(iv). 38 CFR 3.307(a)(6)(iv) did not become effective until February 24, 2011. However, a Note to the M21-1 instructs that prior to February 24, 2011, VA conceded exposure to herbicides on a direct basis for Veterans who served between April 1968 and July 1969 in one of the groups listed under M21-1, Part IV, Subpart ii, 1.H.4.b. See M21-1, Part IV, Subpart ii, 1.H.4.a, Note. Thus, while the claim here was filed prior to February 24, 2011, application of the provisions of the M21-1 in effect at that time also did not establish exposure to herbicides. When a veteran claims exposure to herbicide in Korea, and the veteran did not serve between April 1, 1968 and August 31, 1971, or did not serve in a unit or entity other than those identified by the Department of Defense as operating in the Korean DMZ, the M21-1 instructs that a request must be made to the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. M21-1, Part IV, Subpart ii, Chap. 1, Sec. H.4.b. Accordingly, here, the JSRRC was contacted and a response was received in June 2009. The JSRRC reviewed the unit history which showed that Company B was involved in several construction projects. During the period of March 1968 to June 1969, the 2nd Construction Platoon of Company B was involved with constructing a missile site at Dae Chon Tactical Site #5. At the beginning of the year, the 1st Construction Platoon of Company B was located at Yongsan, located approximately 27 miles from the DMZ. While part of Company B was working up North, another component was working at Camp Caroll Depot, located approximately 27 miles from the DMZ. However the history did not document the use, storage, spraying, or transportation of herbicides. In addition, the unit history did not mention or document any specific duties performed by unit members along the DMZ. According to military records, herbicides were used in Korea between 1967 and 1969. The documentation states that chemical herbicides were used along the southern boundary of the DMZ during 1967 - 1969 by Republic of Korea Armed Forces as a part of counter infiltration operations. The herbicides were applied using hand sprayers and M8A2 trailer mounted decontamination apparatus. Although Republic of Korea Armed Forces personnel were advised in the use of herbicides by United States Army non-commissioned officers, no United States personnel are known to have been actually involved in their application. The preponderance of the evidence is against a finding of exposure to herbicides. The Veteran's unit history did not document the use, storage, spraying, or transportation of herbicides, and did not document any specific duties performed by unit members along the DMZ. No United States personnel are known to have been actually involved in the application of herbicides as described above. Moreover, the above-cited respective proximities to the DMZ do not establish exposure. The regulatory presumption only applies to units which the Department of Defense has determined were in areas in or near the DMZ in an area in which it is known that herbicides were used. The fact that the Veteran's unit is not included in the list is evidence that the Department of Defense has not determined that herbicides were known to have been applied in areas the Veteran's unit operated. Mere service in or near the DMZ does not in itself establish exposure to herbicides. The Board acknowledges the Veteran's reports made during his lifetime that he was exposed to herbicides in Korea. While he was competent to report what he observed, as it has not been shown that he had pertinent specialized training, these statements cannot be used to establish what chemical agents were used in the areas he served. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has considered the articles and literature submitted by the appellant and Veteran in support of the claim. This evidence, however, does not address the facts that are specific to this Veteran's particular case. As such, the Board finds that the information reflected in the submitted articles simply is not probative of the specific medical questions at issue in this appeal. The Board has considered the applicability of the benefit of the doubt doctrine, but as the preponderance of the evidence is against the appellant's claim for service connection lung cancer for accrued benefits purposes, that doctrine is not applicable to the claim. Service Connection for the Cause of the Veteran's Death Dependency and Indemnity Compensation (DIC) 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 (West 2014); 38 C.F.R. § 3.5. To establish service connection for the cause of the Veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Service-connected diseases or injuries 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 diseases 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(c)(3). There are primary causes of death that, 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, itself, of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4); Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992). In short, the appellant is entitled to DIC benefits if the principal or contributory cause of the Veteran's death was (1) an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran's death; or (2) a previously nonservice-connected disability that was in fact incurred or aggravated by service. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312. The Veteran's death certificate shows that the immediate cause of death nonsmall cell lung cancer. When he died, service connection was in effect for traumatic chondromalacia of the right knee (20 percent disabling), and traumatic hallux rigidus of the right foot (10 percent disabling). As described above, the preponderance of the evidence is against the claim for service connection for lung cancer. The Veteran's lung cancer was not attributable to service, including to exposure to diesel fuel. As for herbicide exposure, he did not serve in the Republic of Vietnam and the preponderance of the evidence is against a finding of any exposure to herbicides in Korea on either a presumptive or direct basis. Service connection for the Veteran's cause of death, lung cancer, must be denied. Additionally, it is neither contended nor shown that the service-connected right knee or right foot disabilities were a principal or contributory cause of the Veteran's death. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, and/or 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, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). The Board acknowledges that no medical opinion has been obtained on this point. However, the Board finds that the record, which does not reflect competent evidence suggesting that the service-connected right knee and foot disabilities were either a principal or contributory cause of the Veteran's death, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claim. As the records provide no basis to grant this claim, and in fact provide evidence against this claim in that the January 2016 VA examiner essentially attributed the cause of the Veteran's death to smoking, the Board finds that no reasonable possibility exists that such an opinion would aid in substantiating the appellant's claim. 38 U.S.C. § 5103A(a); Wood v. Peake, 520 F.3d 1345, 1347 (Fed.Cir.2008). To the extent the appellant may contend that the service-connected right knee and right foot disabilities were a principal or contributory cause of the Veteran's death, she has not been shown to have the medical training or expertise to be competent to render an opinion in this regard. See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau, 492 F.3d at 1377 ;Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Finally, as there is no indication in the record that the Veteran was receiving VA compensation for a service-connected disability rated totally disabling, the provisions of 38 U.S.C.A. § 1318 do not apply to the appellant's claim. Accordingly, the Board finds that the preponderance of the evidence is against service connection for the cause of the Veteran's death, so there is no reasonable doubt to resolve in the appellant's favor. Notice and Assistance VA has satisfied its duties under The Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. VA's duty to notify was satisfied by June 2008, November 2009, and June 2011 letters. As for the claim for service connection for lung cancer, as the appellant stands in the Veteran's stead, she is also presumed to have received notice. With regard to the claim for service connection for the cause of the Veteran's death, the June 2011 letter complies with the requirements of Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). As for the duty to assist, with regard to the claim for service connection for lung cancer for accrued benefits purposes, VA has a reduced duty to assist the appellant in acquiring evidence in support of her claim. Entitlement to benefits due and unpaid are determined "based on evidence in the file at date of death." 38 C.F.R. § 3.1000(a) (2015). The appellant did not request to be substituted as the Veteran for purposes of processing the claim to completion within one year after the date of his death. See 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010 (2015). As an accrued benefits claim, VA is not obliged to provide an examination or obtain a medical opinion regarding service connection, or to acquire private medical evidence not of record at the time of the Veteran's death. While the development directed by the Board in May 2015 on the claim for service connection for the cause of the Veteran's death also provided information pertinent to the accrued benefits claim, development of the accrued benefits claim in its own right is not warranted. As for the claim for service connection for the cause of the Veteran's death, the claims file contains the appellant's STRs, VA medical records (VAMRs), and PMRs. The duty to obtain relevant records is therefore satisfied. Further, the general duty to assist provision, 38 U.S.C. § 5103A(a) , rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). An appropriate VA medical inquiry has been accomplished and is factually informed, medically competent and responsive to the issue under consideration. In this vein, the Board is satisfied that the RO substantially complied with its May 2015 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ requested from the appellant any outstanding records pertinent to the appeal and obtained a medical opinion. In sum, the appellant has been afforded a meaningful opportunity to participate in the development of her appeal. She has not identified any outstanding evidence which could support his claim, and there is no evidence of any VA error in notifying or assisting the appellant that could result in prejudice to her or that could otherwise affect the essential fairness of the adjudication. ORDER Service connection for the cause of the Veteran's death is denied. Service connection for lung cancer for accrued benefits purposes is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs