Citation Nr: 1754786 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 15-13 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, Appellant's Son, and T.R. ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to November 1968. The Veteran died in February 2011. The Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant presented testimony before the Board in September 2017; the transcript has been associated with the electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. The Veteran in this case served on active duty from April 1967 to November 1968. 2. On September 28, 2017, during a video conference hearing before the Board and prior to the promulgation of a decision in the appeal, the Board received notification from the Appellant, through her authorized representative, that a withdrawal of the claim for DIC under the provisions of 38 U.S.C. § 1318 is requested. 3. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to Agent Orange during such service. 4. Post service, the Veteran was diagnosed with diabetes and pancreatic cancer with metastatic disease to the liver and gallbladder. 5. The Veteran died in February 2011 due to pancreatic cancer; diabetes was listed as an underlying cause and liver metastasis, Agent Orange, was listed as contributing to death but not resulting in the underlying cause. 6. The medical evidence makes it at least equally likely his pancreatic cancer with metastatic disease to the liver and gallbladder resulted from Agent Orange exposure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for DIC under the provisions of 38 U.S.C. § 1318 by the Appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS DIC under 38 U.S.C. § 1318 The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Appellant, through her authorized representative, has withdrawn the claim for DIC under the provisions of 38 U.S.C. § 1318. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Cause of Death Given the favorable disposition to grant service connection for the cause of the Veteran's death, the Board finds there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. The Veteran died in February 2011. His amended death certificate lists pancreatic cancer as the immediate cause of death with diabetes as a secondary cause. Liver metastasis, Agent Orange, was listed as contributing to the Veteran's death but not resulting in the underlying cause. The Appellant asserts that the Veteran's diabetes led to his pancreatic cancer and ultimately his death. She further asserts that pancreatic cancer was caused by the Veteran's exposure to Agent Orange during his service in Vietnam. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disease or disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310 (West 2012); 38 C.F.R. § 3.312 (a) (2017). The Veteran served in the Republic of Vietnam and is presumed to have been exposed to Agent Orange during such service. During his lifetime, he was awarded service connection for diabetes mellitus associated with exposure to herbicide agents. 38 C.F.R. § 3.309 (e). While a January 2015 VA examiner opined diabetes was neither the cause of his pancreatic cancer or his death, the examiner did opine that it was at least as likely as not that pancreatic cancer and liver metastasis were the result of exposure to Agent Orange. In addition, in a May 2013 letter, a private physician opined that the Veteran's exposure to Agent Orange during his service in Vietnam was in part responsible for his development of pancreatic cancer and subsequent death. Though neither pancreatic nor liver cancer are presumptive diseases under 38 C.F.R. § 3.309 (e), the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a regulatory established presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. Thus, in light of the Veteran's presumed exposure to herbicides during service and the medical evidence presented, the Board finds that the Veteran's pancreatic cancer with metastatic disease to the liver and gallbladder was of service origin. Accordingly, the Board also finds that his death was caused by a disability that is related to his period of active service, and the Appellant's claim for service connection for the cause of the Veteran's death is granted on this basis. 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312. ORDER The claim for DIC under the provisions of 38 U.S.C. § 1318 is dismissed. Service connection for the cause of the Veteran's death is granted. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs