Citation Nr: 1757569 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 15-22 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving Dependency and Indemnity Compensation. REPRESENTATION Appellant represented by: Penelope Gronbeck, Attorney\ WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from December 1942 to February 1946; from March 1947 to March 1953; from May 1953 to January 1964; and from November 1966 to October 1968. The Veteran's DD 214 relative to his last period of active duty reflects that he was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) from a decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant, the Veteran's surviving widow, testified at a March 2017 videoconference hearing before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. At the videoconference hearing, the issue of entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318 was withdrawn from appellate consideration. Hearing Transcript, p.11 (March 2017). This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file (now described as Legacy Content Manager Documents). Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records. 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 served in the Republic of Vietnam during the Vietnam Conflict and is presumed to have been exposed to herbicide agents during active service in Vietnam. 2. The Veteran died of ischemic microvascular disease due to or a consequence of diabetes mellitus, type II, which was presumptively incurred in service due to his exposure to herbicide agents in Vietnam. 3. At his death the Veteran was service-connected, in pertinent part, for diabetes mellitus type II, on the basis of in-service exposure to herbicide agents, including Agent Orange. CONCLUSION OF LAW A disease or injury of service origin contributed substantially or materially to cause or hasten the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board may proceed with the issue on appeal at this time without reviewing the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159. The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter. See Sabonis v. Brown, 6 Vet. App. 426 (1994) and Manning v. Principi, 16 Vet. App. 534, 542 (2002). Background A March 1975 VA examination yielded a diagnosis of arteriosclerotic heart disease due to coronary artery disease. A May 1975 rating decision denied service connection for arteriosclerotic heart disease. A February 2003 rating decision granted service connection for diabetes mellitus, type II, which was assigned an initial 20 percent disability rating. That decision found that a February 2003 response from the military established that the Veteran had served in Vietnam from February 1, 1967, to May 21, 1967, and that a May 2001 statement from a physician documented that the Veteran had diabetes mellitus, type II. A death certificate, filed in February 2012, shows that the Veteran died on February [REDACTED], 2012, at the age of 87, and the immediate cause of death was severe debility due to or a consequence of end-stage dementia. Another significant condition contributing to his death but not resulting in death was "advanced age." This death certificate reflects that an amended death certificate was filed on July 1, 2015. A "Statement to Amend Cause of Death" dated July 1, 2015, is of record and shows that the immediate cause of death was severe debility due to or a consequence of end-stage dementia due to or a consequence of ischemic microvascular disease due to or a consequence of diabetes mellitus, type II. Other significant conditions contributing to his death but not resulting in death were arteriosclerotic heart disease and advanced age. At the 2017 videoconference the appellant testified that a doctor had told her that the Veteran's ischemic heart disease was caused by Agent Orange. Hearing Transcript, p. 6. He had served in Vietnam during his military service in the 1960s. Hearing Transcript, p. 7. During the Veteran's lifetime, service connection was established for residuals of fractures of L1-2 and 3 with deformity and lumbar kyphosis; post traumatic arthritis of the right knee, status post arthroplasty; type II diabetes mellitus; duodenal ulcer; traumatic arthritis of the left shoulder; residuals of a fracture of the coccyx; and hemorrhoids. Service connection was never established for dementia, and the Veteran's service treatment records contain no documentation, treatment, or diagnosis related to that condition. Also, service connection was never established for any form of ischemic heart disease. Law and Regulations A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1) (West 2014); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, 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); 38 C.F.R. § 3.307(a)(6)(iii). Under 38 U.S.C.A. § 1116(b), the Secretary of VA is required by law to issue a presumption of service connection when sound medical and scientific evidence shows a positive association between a disease and exposure to herbicides. The following diseases are associated with herbicide exposure for purposes of the presumption: Type II diabetes (also known as diabetes mellitus type II), and ischemic heart disease, including but not limited to acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially, or materially, to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be established for the cause of a Veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110, 1112 (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service connected disability 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). It is not sufficient to show that the service connected disability casually shared in producing death; rather, a causal connection must be shown. Service-connected diseases or injuries involving active processes 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 disease 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. Analysis The Board finds the recently submitted amended death certificate to be persuasive. This evidence shows that the immediate cause of the Veteran's death was due to ischemic microvascular disease due to or a consequence of diabetes mellitus, type II. Service connection on a presumptive basis for diabetes mellitus type II, as a result of exposure to Agent Orange, was in effect at that time of the Veteran's death. As noted above, even if death was due to some other overwhelming cause, consideration must be given to whether a condition related to military service had a material influence in accelerating death if it was of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(3), (4). As to this, because the evidence shows that ischemic heart disease, which was due to or a consequence of the Veteran's service-connected diabetes mellitus type II, either caused or contributed to cause or hasten the Veteran's death, it is reasonable to conclude that the ischemic heart disease and diabetes mellitus and their effects were progressive and, ultimately, debilitating in nature. Accordingly, with the favorable resolution of doubt in favor of the appellant, the Board determines that a disease or injury of service origin contributed substantially or materially to cause or hasten the Veteran's death. Accordingly, service connection for the cause of the Veteran's death, to include for purposes of receiving DIC, is warranted. The appeal is granted. ORDER Entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving DIC, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs