Citation Nr: 1752764	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  07-36 050	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P. Yoffe, Associate Counsel




INTRODUCTION

The Veteran served on active duty from November 1964 to November 1967.  The Veteran died in 2006 and the Appellant claims as the Veteran's surviving spouse.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Regional Office (RO) of the Department of Veterans Affairs (VA).  The claim for dependency indemnity and compensation (DIC) on the basis of service connection for the cause of the Veteran's death was remanded in August 2012, May 2013, October 2013, and May 2017 and has returned to the Board.


FINDINGS OF FACT

1. The Veteran died in June 2006 and his death certificate lists the cause of death as due to cardiac arrest, with underlying causes of cardiogenic shock, congestive heart failure, and idiopathic cardiomyopathy.

2. The Veteran was service connected for bilateral sensorineural hearing loss and bilateral tinnitus at the time of his death.

3. The Veteran did not serve in Vietnam or other place entitled to a presumption of herbicide agent exposure and herbicide agent exposure during service has not been shown.

4. A heart disability, to include ischemic heart disease and cardiomyopathy, was not manifest during service, was not manifest within one year of service, and a heart disability is not attributable to service.

5. The Veteran's cause of death was unrelated to service or a service connected disability.

CONCLUSION OF LAW

A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to the Veteran's death.  38 U.S.C. §§ 1101, 1110, 1112, 1116, 1310 (2012); 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.307, 3.309, 3.312 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Compliance with Prior Remand

In October 2017, the Board remanded the claim for adjudication of the issues of entitlement to service connection for neck disability, residuals of a low back injury, and residuals of a right leg injury, for accrued benefits.  The Board stated that the claim for DIC was inextricably intertwined with the issues of entitlement to service connection for accrued benefits of the low back, neck, and right leg disabilities.  In a July 2017 Rating Decision, these claims were denied.  For this reason, the Board's prior remand instructions have been substantially complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Duties to Notify and Assist

The Veteran has not raised any argument(s) with respect to the adequacy of notice and assistance.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Therefore, the appeal may be considered on the merits.


Service Connection for Cause of Death

DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected or compensable disability.  38 U.S.C. § 1310(a); 38 C.F.R. § 3.5(a).  In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability or disease incurred in or aggravated by active service was the principal or contributory cause of death.  38 C.F.R. § 3.312(a).  In determining whether a service-connected disability contributed substantially or materially to death, the evidence must show that it combined to cause death or that it aided or lent assistance to the production of death.  It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.  38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994).

A Veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval, or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303. 

To establish a right to compensation for a present disability the appellant must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases; including cardiovascular diseases such as cardiomyopathy, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).  With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes.  C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Specific laws and VA regulations determine when a veteran may be presumed to have been exposed to herbicide agents, including Agent Orange, and when that presumed exposure may have caused specific diseases.  38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e).  A veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed to designated herbicide agents during such service.  38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  If a veteran who "served in the Republic of Vietnam," certain listed diseases are presumptively service-connected.  38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e).  Service in the Republic of Vietnam includes service in the landmass of Vietnam or the inland waters of Vietnam.  See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).  

The absence of service in Vietnam does not preclude a Veteran (or, here, the Appellant) from alleging that the Veteran has disability that is related to designated herbicide exposure.  See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis).

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge).  

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the Appellant.  Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Appellant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).


Analysis

The Veteran died in June 2006 with cause of death listed on his death certificate is cardiac arrest, with underlying causes of cardiogenic shock, congestive heart failure, idiopathic cardiomyopathy.  VA and private medical records dated March to April 2006 report congestive heart failure associated with dilated cardiomyopathy.  The Veteran had notations in medical records relating to the heart, such as chest tightening, pressure, heart disease, and cardiomyopathy starting in the mid-1990s onward.  See, e.g., March 2007 Statement in Support of Claim ("Developed Heart Problems in 1994 cardiomyopathy).  The Veteran also had hypertension dating to 1978, initially described as high blood pressure.

The Appellant's first contention is the Veteran was in Vietnam, specifically that he served in the Special Forces in Vietnam and that his records "were classified for his protection."  See, e.g., Correspondence received May 2015.  The Appellant's representative asserts a second contention, that during "the Veteran's service in Panama, [he was] exposed to chemicals that . . . contributed to his death."  See October 2017 IHP.  The Appellant's representative claims the chemicals were "Agent Orange or other herbicides" and states the exposure occurred in April 6, 1966.  See August 2017 IHP.  The Veteran himself, shortly before his death, stated he had been sprayed with "herbicides" and "insecticide" while clearing vegetation in Panama.  April 2006 Notice of Disagreement.

The Veteran was service connected for bilateral sensorineural hearing loss and bilateral tinnitus at the time of his death.  At the time of his death, he had pending claims for residuals of a neck disability and residuals of a low back and right leg injury.  This claim continued as a claim for accrued benefits after the Veteran's death.  The RO subsequently denied the claim in a rating decision dated July 2017 and the Appellant did not appeal that denial.  The Veteran had additional claims pending at the time of his death.  These claims were also denied in an October 2013 Board decision as claims for accrued benefits.  Therefore, the only service connected disabilities remains sensorineural bilateral hearing loss and tinnitus.

The Appellant asserts that the Veteran served in Vietnam.  To support her claim, the Appellant submitted numerous documents, such as sections of the Veteran's service personal records and a diary, as well as her lay statements.  The Appellant submitted a July 2017 letter reporting that the Veteran had "classified records," and that "[u]nder the presumption rule it should be considered he could have been there in Vietnam" and "so it should be considered that he was there [in Vietnam] unless you can prove he wasn't."  

As to the existence of classified records, the Appellant submitted a document entitled "Installation Clearance Record" dated November 1967, with installation listed as Fort Campbell, Kentucky.  This document has a notation of "S-2" next to "classified documents" along with initials from a military official.  The Appellant submitted an internet printout from a message board noting that "S-2" indicates "intelligence materials."  All this document signifies, as it states below the relevant section, is that the Veteran "turned in or properly transferred all classified documents" when he left Fort Campbell at his Expiration of Term of Service (marked "ETS" on the document), it does not signify that his record itself is classified nor does it show that personal records were lost.  The Veteran's service record appears to be complete, and includes a full listing of his Record of Assignments.  This shows that the Veteran was stationed in several places in the United States from enlistment until May 1965, was in the Panama Canal Zone from May 1965 until December 1966, and returned to the United States in December 1966, where he separated from service.  

A pocket diary from 1966 was also submitted, apparently written in by the Veteran, as it contains his name and information at the front of the diary.  The diary contains daily notations from June 26th, 1966 until July 4th, 1966.  There are no notations for the 5th through 8th and a notation on July 9th of "Went to Vietnam" with no further explanation.  A variety of service records document that the Veteran was in Panama at this time.  This is one stray notation, on an unofficial document, which is not signed, and appears to be in a different handwriting than the other notations in the diary.  Therefore, it has little probative weight, as it is both not credible given official records and was written by an unknown person.  

Prior to his death, the Veteran stated numerous times that he was not a Vietnam veteran nor had served in Vietnam.  See February 2005 RO hearing ("Right I went to the VA in 1967.  In 1974 they terminated me from medical care because everybody was coming back from Vietnam and they did not have room for me."); April 2000 Board hearing ("And then in 1974 they terminated me from [VA] treatment cause they told me that they were having all these people come back from overseas, Vietnam and everything, you know, and they didn't have room for me to be treated there.").  When he was seen at a VA for evaluation for Agent Orange exposure, the physician noted that the Veteran did not claim he was in Vietnam.  See September 2005 VA treatment record; see also April 2006 Notice of Disagreement (referring to being sprayed with chemicals in Panama and stating "[n]ow why is Vietnam recognized and not other areas where the same thing was sprayed").  The Veteran's other statements in support of his claim prior to his death do not mention service in Vietnam, nor contain claims of classified records or assignments and specifically make reference to having not served in Vietnam, including his opinion that Veteran's from Panama should receive the same presumptions regarding herbicide agent exposure as Vietnam veterans.

The evidence of record does not support a finding that the Veteran was in Vietnam.  The Veteran's service records and DD-214 do not show presence in Vietnam or any other place covered by the herbicide agent presumption during the presumptive period.  The Board previously made this finding in a decision dated October 2013 for accrued benefits for service connection for diabetes and erectile dysfunction were it was noted that the Veteran had not stated he was in Vietnam during an August 1997 hearing, instead the Veteran described basic training, assignment to Panama, and returning to Kentucky afterwards.  

The Appellant may believe and perhaps was told by the Veteran that the Veteran was in Vietnam during his service.  She is competent to say what she was told.  However, the Appellant's statements are not probative, as they are contradicted by the official records and the Veteran's own statements, which do not support, in anyway, a finding of presence in Vietnam.  Therefore, her lay statements regarding the Veteran's presence in Vietnam are entitled to little probative value.

As to the second contention, the Veteran's exposure to Agent Orange in Panama, the Veteran stated that he was in Panama in 1965 and was involved in spraying of herbicide agents, insecticides, or Agent Orange.  He said he drove trucks that were used for fogging and used the herbicidal spray.  He also said that he sprayed the herbicide in his bunk area by hand.  

JSRRC contacted the National Archives and Records Administration (NARA).  After a thorough search of all available records, NARA could not find any documentation of the spraying, testing, storage, or use of Agent Orange or any other tactical herbicide agents in or near Fort Kobbe, Panama where the Veteran was stationed.  

The Appellant submitted generic evidence regarding herbicide use in Panama.  Among these are a response to FOIA request, regarding Agent Orange exposure in Panama.  It notifies the FOIA requester that "no record response for information regarding testing of Agent Orange in Panama by the Department of Defense," and notes "six citation" for use of the term "defoliants, herbicides, and Panama Canal Zone."  The Appellant also submitted a Dallas Morning News article stating that Agent Orange and other herbicides were used in Panama and numerous other articles concerning either the grants of VA benefits to those who served in Panama for herbicide agent exposure or other generalized documents about the effects on Panamanians and American service members of various gases and chemicals used or stored, or claimed to be used or stored, in Panama. 

As herbicide agent presumptive regulations do not apply to Panama, the Appellant would have to show a direct connection between the Veteran's death and service and these documents do not do so.  These internet printouts and associated documents are too generic to support the claim, they are neither specific to the Veteran nor even specific to locations where the Veteran was stationed during the relevant timeframes (May 1965 until December 1966), and are, therefore, of limited probative weight.  Additionally, the JSRRC has indicated that they could not document or verify that the Veteran was exposed to tactical herbicides based on his location in Panama.  The documents submitted by the Appellant do not show that the Veteran was himself exposed to herbicide agents or that herbicide agents were used in or near Fort Kobbe, where the Veteran was stationed.  They do not show the Veteran was exposed to herbicide agents in service.  These are also not medical treatises are alike documents.  See § 3.159 (defining competent medical evidence). They are therefore not probative or relevant to the claim.

The Veteran, when he reported exposure to herbicide agents, did not report and was not in a position to know what was contained in the various sprays he used, much less whether they contained designated herbicide agents.  More importantly, his statements do not establish that there was actual exposure to herbicide agents.  In other words, the Veteran's lay statements do not allege he actually saw nor had personal knowledge that the sprays he used, nor other items he used were herbicide agents, only that he believed they were herbicide agents.  To the extent he was using generic herbicides toxic to plants and used to destroy vegetation, the presumption for purposes of exposure to herbicide agents is not applicable.  This remains true to the extent the Appellant claims the Veteran told the Appellant she was exposed to herbicides in Panama.  The Appellant has not established a factual foundation that would have established actual exposure to herbicide agents.  The Board finds this contention is not adequate for establishing exposure to herbicide agents.  Therefore, there is no probative evidence of record showing the Veteran was located near any area where tactical herbicides agents were used. 

Finally, the Board has considered other theories.  There is no basis for finding that service directly contributed to his heart issues.  Service treatment records do not show complaints of heart issues.  His October 1967 separation examination noted "normal" in heart and all other relevant areas and did not note any disabilities.  On the October 1967 report of medical history, the Veteran's likewise did not report any heart trouble or heart issues.  

The Veteran was service connected for only hearing loss and tinnitus at the time of his death, neither contributed to his death.  There is no accepted proof of exposure to herbicide agents.  There is no proof of the onset of heart disease in service, within one year of service, and the Veteran did not have characteristic manifestations sufficient to identify the disease process during that time frame.  Rather, when tested at separation, the heart and vascular system were normal and blood pressure was 124/68.  There is no reliable evidence that the remote fatal disease process is related to service.  Therefore, in light of the above, the Board finds that the preponderance of the evidence is against the Appellant's claim for the cause of the Veteran's death.  


ORDER

Entitlement to service connection for the Veteran's cause of death is denied.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs