Citation Nr: 1752732 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-38 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Milwaukee Pension Center THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty from October 1971 to September 1974. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for the cause of the Veteran's death. The appellant testified before the Board in April 2010, a transcript of the hearing is of record. In an October 2011 decision, the Board denied the Veteran's claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (Joint Motion), an August 2012 Order of the Court remanded the claim for readjudication in accordance with the Joint Motion. Thereafter, the Board remanded for additional development in March 2013. The appeal was last remanded in February 2017 for further development. The requested development has been accomplished and the appeal is ready for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran died in May 2007; the death certificate lists the immediate cause of death as gastric cancer with metastasis to liver. Other significant conditions contributing to death but not resulting in the underlying cause were noted as: "Vietnam Veteran (Navy 3 years) [and] [s]moker x 30 years 2ppd." 2. At the time of his death, the Veteran was not service-connected for any disabilities. 3. The Veteran's death is not related to his military service, to include exposure to radiation and exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C.§§ 1110, 1310, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claims decided 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 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Of note, in its February 2017 remand, the Board requested that the RO contact the U.S. Navy Bureau of Medicine and the U.S. Naval Dosimetry Center for dosimetry records of the Veteran covering the period between December 1972 and September 1974 while the Veteran was stationed on the USS SHASTA. Thereafter, in March 2017, such records were requested. An April 2017 report of contact from the U.S. Navy Bureau of Medicine includes the report from that entity that such records would not be held by that office. An April 2017 letter from the U.S. Naval Dosimetry Center included a negative response, as discussed at greater length below. The appellant contends that the Veteran's death is related to his military service. Specifically, the appellant argues that the Veteran's terminal cancer of the stomach was caused or aggravated by his service duties aboard the USS SHASTA when he worked as an ordnance mechanic and also drove a fork lift while handling "live ordnance." His DD-214 states that he completed Nuclear Weapons Transshipment School from September 16-26, 1973. His service treatment records reflect that he was stationed aboard the USS SHASTA from December 1972 to September 1974. Alternatively, the appellant contends that the Veteran was exposed to herbicides during the course of his service aboard a naval vessel in the waters offshore of Vietnam. To prevail on a service connection for the cause of death claim, there must be competent evidence that establishes the veteran's service-connected disability was either the principal or a contributory cause of death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). Because the Veteran was not service connected at the time of death, the Board must consider whether service connection is warranted for any of the listed causes of death or contributory causes. For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). In determining whether a service-connected disability contributed to death, it must be shown that it 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). In September 2006, the Veteran was seen by his private physician with complaints of abdominal pain. Abdominal X-rays did not clearly demonstrate the cause of the pain, but a January 2007 CT indicated a gastric mass. An esophagogastroduodenoscopy was performed in February 2007 that showed a malignant appearing ulcer in the body of the stomach. A biopsy confirmed the presence of gastric adenocarcinoma and the Veteran's private physician recommended a diagnostic laparoscopy to determine the extent and severity of the Veteran's cancer. The laparoscopy was performed in March 2007 and established the Veteran had Stage IV metastatic gastric cancer. The disease was considered terminal and the Veteran was transferred to hospice care at home where he died on May [REDACTED], 2007. I. Chronic Disease Presumption Service connection is not warranted for the cause of the Veteran's death as a chronic disease under the provisions of 38 C.F.R. § § 3.307 and 3.309. The evidence establishes that the Veteran's death was due to gastric cancer, however, the record shows that this condition was first diagnosed in February 2007, more than 30 years after the Veteran's separation from active duty service. As noted above, in this case, chronic diseases are only subject to presumptive service connection if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran's malignant tumor was not incurred until decades after service and presumptive service connection for this disability as a chronic disease is not warranted. II. Herbicide Exposure Service connection for gastric cancer as due to exposure to herbicide agents is not warranted on a presumptive basis. Initially, in some instances, a Veteran is presumed to have been exposed to herbicides. In her October 2009 VA-9 substantive appeal, the appellant argued that the Veteran did not step foot in Vietnam but was exposed to herbicides as a "blue water" veteran. During the April 2010 hearing, the appellant's testimony implied that the Veteran may have had contact with herbicides during service while loading and unloading planes returning from Vietnam. A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. "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. The presumption requires that the veteran actually stepped foot on land in Vietnam. Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. In other words, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307 (a)(6)(iii), the service member must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. What constitutes "inland waterways" was not defined in Haas and is not defined in VA regulations. Thus, the Board has historically referred to the VA Adjudication Procedure Manual M-21 (Manual) for interpretive guidance. The Manual maintains that 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, pt. IV, sub. Pt. ii, ch. 2, § C.3.m . The Manual clearly states that service aboard a ship that merely 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 to establish presumptive exposure to herbicides. Id. Any such anchorage is considered to be in "blue water" that does not provide for a presumption of herbicide exposure. Id. In the case before the Board, the appellant does not contend that the Veteran stepped foot in Vietnam. Rather she contends that he was exposed to herbicides while serving aboard the USS SHASTA as a "blue water" Veteran. After review of an Institute of Medicine (IOM) report, ''Blue Water Navy Vietnam Veterans and Agent Orange Exposure," the Secretary of VA determined that the evidence available at that time did not support establishing a presumption of exposure to herbicides for Blue Water Navy Vietnam Veterans. See 77 Fed. Reg. 76170 (Dec. 26, 2012). In order for the presumption of exposure to Agent Orange to extend to a Blue Water Navy Veteran, development must provide evidence that the veteran's ship operated temporarily on the inland waterways of Vietnam or that the Veteran's ship docked to the shore or a pier. In claims based on docking, a lay statement that the Veteran personally went ashore must be provided. Although evidence that a veteran's ship docked, along with a statement of going ashore, is sufficient for the presumption of herbicide exposure, service aboard a ship that anchored temporarily in an open deep water harbor or port is generally not considered sufficient. M21-1 IV.ii.2.C.3.e. Here, the appellant does not contend that the Veteran went ashore, nor does the evidence suggest this. In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307 (a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309 (e). Here, the evidence demonstrates neither of the required elements. The record does not demonstrate that the Veteran had Vietnam service that would cause exposure to be presumed. Even assuming, arguendo, that such exposure could be presumed, stomach cancer is not presumed to be linked to such exposure. The Institute of Medicine has concluded that "there is inadequate or insufficient evidence to determine whether there is an association between exposure to [herbicide agents] and stomach cancer." Veterans and Agent Orange: 2012 Update, p. 349 (National Academy of Sciences, 2012). Accordingly, gastric cancers are not among the diseases listed under 38 C.F.R. § 3.309 (e) (2017). Therefore, presumptive service connection is not warranted for the Veteran's gastric cancer. Of note, evidence in support of the Veteran's claim includes findings that the Veteran was found to have metastatic squamous cell carcinoma in the neck with an unknown primary in 2004. In a January 2008 letter, Dr. R.B. noted that the Veteran's earlier cancer was not possibly related to the Veteran's later cancer. Thus cause of death related to the earlier cancer is not shown. Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). While the Board sympathizes with the appellant's claim that the Veteran's earlier cancer and cause of death are related, she is not shown to have the medical expertise to determine the etiology of his cause of death. Therefore, competent medical evidence is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). The preponderance of the evidence is against a finding that the Veteran's stomach cancer was related to in-service herbicide exposure. III. Radiation Exposure The Veteran's DD 214 notes that the Veteran attended nuclear weapons transshipment school in September 1973 and the record demonstrates that the Veteran served on the USS SHASTA, a naval ammunition supply vessel between December 1972 and September 1974. The questions before the Board are whether the Veteran was exposed to ionizing radiation which caused the Veteran's stomach cancer. A January 2016 medical opinion noted that the Veteran's death certificate could not be located but that a letter from Dr. R.S. stated that the Veteran had terminal gastric cancer, adenocarcinoma of the stomach with pan peritoneal implants which was as likely as not the cause of death. The examiner stated that risk factors for gastric cancer included obesity with a BMI of 25 or higher and that a primary care appointment dated in April 2005 demonstrated a BMI of 24.8. It was noted that prior to this finding the Veteran was shown to have been heavier and that obesity was a risk factor for him. The examiner stated that another risk factor was the Veteran's positive history of smoking. Another risk factor was gastritis, the examiner noted heartburn in April 2005. The examiner stated that it was as likely as not that these risk factors contributed to his cancer and that these risk factors would have a heavier weight than moving nuclear components or weapons. It was, however, noted that if such were present, a radiation officer's log could be reviewed. Following the Board's February 2017 remand for further development, in an April 2017 letter, the Naval Dosimetry Center stated that a search for the Veteran by name, service number, command and social security number revealed no reports of occupational exposure to ionizing radiation pertaining to the Veteran. Thus, the appellant's claim that the Veteran was subjected to radiation aboard the USS SHASTA is not supported by the evidence of record. Further, in a July 2017 medical opinion, a VA examiner reviewed the evidence of record and concluded that it was less likely than not that exposure to nuclear weaponry onboard the USS Shasta caused or materially contributed to the Veteran's terminal gastric cancer with metastasis to the liver. The VA examiner explained that a review of the Veteran's service treatment records revealed no evidence of any official exposure record, or evidence of radiation exposure. The examiner stated that there was no evidence that between 1972 and 1974 the USS SHASTA stored or moved nuclear weapons, or that the Veteran's occupations while on board exposed him to ionizing radiation because Navy personnel who service in positions determined to be at risk for radiation exposure must have ionizing radiation dosimeter monitoring. The examiner stated that it was therefore less likely as not that ionizing radiation exposure on the USS SHASTA caused his terminal gastric cancer, and more likely as not the Veteran's smoking history contributed to his development of terminal gastric cancer with liver metastasis, as documented in his death certificate. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran's stomach cancer is due to exposure to ionizing radiation. While the Board is cognizant of the appellant's sincere belief that the Veteran's death is related to radiation exposure, no such exposure has been shown, further, the Veteran's cancer was attributed to his smoking by the July 2017 VA examiner, a medical expert. IV. Service Connection on a Direct Basis Although service connection is not possible in this case on a presumptive basis, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, the evidence of record does not support a conclusion that the Veteran's death due to gastric cancer was directly related to herbicide exposure or radiation. The record does not contain any specific allegations regarding the Veteran's claimed exposure during service, nor does it establish that the Veteran was actually exposed. The appellant has contended that the Veteran was exposed to herbicides and/or radiation, causing his gastric cancer. However, there is no objective evidence in the Veteran's service records or after service indicating such exposure. Accordingly, the Board cannot conclude that the such exposure occurred. Finally, the Veteran's the death certificate notes Vietnam service as a contributing factor to the Veteran's death. However, no rationale for this finding is provided, it is not shown that service substantially or materially contributed to the Veteran's death and this is outweighed by the findings of the VA examiners. See e.g., Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In sum, while the Board is sympathetic to the appellant's claim, the probative evidence of record is against a finding that a disability related to service contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. As such, entitlement to service connection for the cause of the Veteran's death is denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ M.H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs