Citation Nr: 1751133 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 11-05 356A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active service from October 1960 to November 1963. He died in October 2008, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction has since been transferred to the RO in Philadelphia, Pennsylvania. In February 2016, the appellant testified before the undersigned Veterans Law Judge at a Central Office hearing in Washington, DC. A copy of the hearing transcript has been associated with the electronic claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's certificate of death lists the immediate cause of death as non-Hodgkin's lymphoma. 2. At the time of his death, service connection was not in effect for any disorder. 3. The cause of the Veteran's death listed on his death certificate was not shown to be causally related to his active military service, to include asserted in-service herbicide exposure. CONCLUSION OF LAW A disability incurred in or aggravated by service or presumed to have been incurred in service did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1116, 1310, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the appellant's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). VA's duty to notify was satisfied by letters dated in February 2009 and May 2017. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); see Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); see also Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (2009). VA has obtained the Veteran's service treatment records, service personnel records, VA treatment records, and private treatment records. The appellant and her representative submitted copies of service treatment and personnel records as well as written statements discussing their contentions. In addition, review of the February 2016 Board Central Office hearing transcript demonstrates that the undersigned complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). Neither the appellant nor her representative has identified any outstanding pertinent evidence related to the claim for entitlement to service connection for the cause of the Veteran's death. The appellant was not provided a VA medical opinion with respect to her cause of death claim. VA's duty to assist specifically includes providing a medical opinion when necessary if the claim at issue involves disability compensation. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4), 3.326. In the context of dependency and indemnity compensation claims, provision of a medical opinion or other medical analysis is pursuant to 38 U.S.C.A. § 5103A (a) rather than the above cited statute and regulations which pertain only to claims for disability compensation. DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). Here, a medical opinion is not needed. There is no evidence of record, other that the appellant's generalized assertions, that the Veteran's listed cause of death was related to service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004); see also Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (noting that the Board has no obligation to obtain a medical opinion when there is no competent evidence that the appellant's disability or symptoms are associated with his service). Accordingly, it is not necessary to obtain a medical opinion in order to decide this claim. The Veteran died in October 2008. The Veteran's certificate of death lists the immediate cause of death as non-Hodgkin's lymphoma. At the time of his death, service connection was not in effect for any disorder. The appellant now contends that the Veteran's cause of death was etiologically related to his active military service, to include in-service herbicide exposure. She asserted that he was exposed to herbicides during his time served in the Army in the air or near a warehouse, that his cause of death began during service and had gone undetected for a long time, and that the Department of the Army must have some documentation of how herbicides were handled stateside. When a veteran dies after December 31, 1956, from a service-connected or compensable disability, VA will pay dependency and indemnity compensation to such veteran's surviving spouse, children, and parents. 38 U.S.C.A. § 1310. In a claim where service connection was not established for the fatal disability prior to the death of the veteran, the initial inquiry is to determine whether the fatal disorder had been incurred in or aggravated by service. The Board must determine whether the fatal disorder should have been service-connected. 38 C.F.R. § 3.312. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as malignant tumors and Hodgkin's disease, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309. In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran who served in Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to herbicides during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases, including non-Hodgkin's lymphoma, are deemed service-connected. 38 C.F.R. § 3.309(e). However, regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). Review of service personnel records as well as additional evidence of record reflected that the Veteran was stationed in Germany, Kentucky, and North Carolina during his period of active service from October 1960 to November 1963. His duty assignments included Light Truck Driver and Cannoneer with a military occupational specialty (MOS) of F. A. (Field Artillery) Basic. A March 2009 response from National Personnel Records Center (NPRC) detailed that there was no evidence to substantiate that the Veteran had any service in the Republic of Vietnam. The Veteran's service treatment records are silent for any findings or diagnosis of non-Hodgkin's lymphoma. Post-service VA treatment records dated from 2006 to 2008 detailed that he was diagnosed with lymphadenopathy, amyloidosis, and probable lymphoma. Private treatment records dated in 2008 reflected that the Veteran was treated for low-grade stage IV lymphoplasmacytic lymphoma, amyloidosis, nephrotic-range proteinuria, diffuse lymphadenopathy, protein-calorie malnutrition, lower extremity edema, hypertension, and anemia. The Board has determined that service connection for the cause of the Veteran's death is not warranted. As an initial matter, there is no factual basis in the record that any condition listed on the Veteran's death certificate was incurred during service, or manifested as a chronic disease within a year thereafter, or for several years after his discharge from service in 1963. Post-service medical evidence of record first showed non-Hodgkin's lymphoma many years after the Veteran's separation from active service. The passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Evidence of record clearly reflects that non-Hodgkin's lymphoma was not manifested to a compensably disabling degree within the first year after the Veteran completed his active service in 1963. While the Veteran's diagnosed non-Hodgkin's lymphoma was considered one of the applicable diseases warranting presumptive service connection for Agent Orange, evidence of record detailed that the Veteran only had documented foreign service in Germany and cannot be presumed to be exposed to herbicides related to service in Vietnam or Korea. Furthermore, the Board has considered the appellant's generalized assertions during her February 2016 Board hearing that the Veteran was exposed to herbicides during active service "just breathing in the air" and "near the warehouse" while stationed in Kentucky, North Carolina, and Germany. It is cognizant that Agent Orange and other herbicides used in Vietnam were tested or stored elsewhere, including many military bases in the United States and in countries outside of the United States. However, testing or storage was not shown in North Carolina or Germany and was only conducted at Fort Knox in Kentucky in 1945. See https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/usa.asp.; see also https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/outside-vietnam.asp. Evidence of record also does not include any probative medical evidence or opinion suggesting a causal relationship between the Veteran's cause of death and events during his active military service, including asserted in-service herbicide exposure. Based on the foregoing discussion, there is no basis upon which to conclude that the Veteran's listed cause of death was incurred in or aggravated during military service, including on any direct or presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309. The only other evidence of record which relates the Veteran's cause of death to his active military service is the appellant's own statements. These statements are competent evidence as to observable symptomatology, including swelling and shortness of breath. See Barr, 21 Vet. App. at 307. However, lay statements that the Veteran's cause of death was incurred as a result of service, to include asserted in-service herbicide exposure, draw medical conclusions, which the appellant is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran's cause of death falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Accordingly, entitlement to service connection for the cause of Veteran's death is not warranted. The medical and lay evidence of record simply does not establish either on a direct or presumptive basis that any diagnosed disorder listed on the Veteran's death certificate was causally related to his military service. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs