Citation Nr: 1801198 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-23 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes, to include as due to herbicide exposure, for accrued benefits purposes. 2. Entitlement to service connection for a heart condition (claimed as coronary artery disease), to include as due to herbicide exposure, for accrued benefits purposes. 3. Entitlement to service connection for cause of death. 4. Entitlement to a total disability rating based on individual unemployability (TDIU), for accrued benefits purposes. 5. Entitlement to compensation under 38 U.S.C. § 1151 for renal failure, for accrued benefits purposes. 6. Entitlement to compensation under 38 U.S.C. § 1151 for right leg amputation, for accrued benefits purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Air Force from January 1973 to July 1980 and from August 1980 to December 1980. The Veteran passed away in July 2012. The Appellant is the Veteran's surviving spouse. This appeal arises before the Board of Veterans' Appeals (Board) from a July 2013 rating decision, in which the Department of Veteran Affairs (VA) St. Paul, Minnesota, Pension Management Center denied entitlement to service connection for diabetes, coronary heart disease, cause of death, entitlement to a TDIU, and compensation under 38 U.S.C. § 1151 for renal failure and right leg amputation, for accrued benefits purposes. The case was subsequently transferred to the Houston, Texas RO. In April 2017, the Appellant testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. The Board notes that in the April 2017 Board hearing, the Appellant withdrew the issues of entitlement to a TDIU, for accrued benefits purposes, entitlement to compensation under 38 U.S.C. § 1151 for renal failure, for accrued benefits purposes, and entitlement to compensation under 38 U.S.C. § 1151 for right leg amputation, for accrued benefits purposes. Thus, there remain no allegations of errors of fact or law for appellate consideration in regard to these issues, and accordingly, the above issues are dismissed. See 38 C.F.R. § 20.204 (2017). The issues of entitlement to service connection for a heart condition and service connection for cause of death are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The record does not establish that the Veteran served in the Republic of Vietnam during the Vietnam era or in Korea, in or near the demilitarized zone (DMZ) between April 1, 1968 and August 31, 1971, there is insufficient evidence that the Veteran was exposed to herbicides during his period of service in Panama, and the record does not indicate that the Veteran had complaints of or sought treatment for diabetes during service or within one year of separation. CONCLUSION OF LAW The criteria for service connection for diabetes, to include as due to herbicide exposure, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 1133, 5121, 5107 (2012); 38 C.F.R. §§ 3.102, 3.160, 3.303, 3.307, 3.309, 3.1000, 20.1103, 20.1104 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION ACCRUED BENEFITS Applicable law and regulations provide that, upon the death of a veteran or beneficiary, periodic monetary benefits to which that individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of his/her death (accrued benefits) and due and unpaid shall, upon the death of such individual, be paid to the specified beneficiaries, the first of which is the veteran's spouse. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). A claim for such benefits must be filed within one year of the veteran's death. 38 C.F.R. § 3.1000(a), (c) (2017). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit concluded that, for a surviving spouse to be entitled to accrued benefits, 'the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision.' See also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application). The term 'pending claim' means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c) (2017). The term 'finally adjudicated claim' means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. § 3.160(d) (2017); see also 38 C.F.R. §§ 20.1103, 20.1104 (2017). 'Evidence in the file at date of death' means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353 (1993). The Board notes that the Veteran's date of death occurred in July 2012. The Board acknowledges that the Veteran had pending claims at the time of death, and the Appellant is the surviving spouse of the Veteran; therefore, the Appellant is proper for substitution under the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008); 38 C.F.R. § 3.1010 (2017). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a disease enumerated by the regulations become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1133 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Additionally, a veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents. In the case of such a veteran, service connection for certain disorders, such as prostate cancer, will be rebuttably presumed if they are manifest to a compensable degree at any time after service. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2017). This presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113 (2012); 38 C.F.R. § 3.307(d) (2017). In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea, in or near the DMZ between April 1, 1968 and August 31, 1971, actual exposure to herbicides must be verified through appropriate service department records or other sources for the presumption of service connection for a herbicide-related disease to be applicable. Otherwise, exposure to herbicides is not presumed. However, if actual exposure to herbicides has been established, the presumption of service connection found in 38 C.F.R. § 3.309 (e) (2017) for herbicide-related diseases is applicable. The Appellant contends that the Veteran had diabetes, which was due to service. Specifically, the Appellant contends that the Veteran was exposed to herbicides during his service in the Panama Canal Zone, which resulted in his development of diabetes. Turning to the record of evidence, the Veteran's military personnel record indicates that the Veteran served overseas in the Panama Canal Zone from May 1974 to August 1975. The record does not indicate any other foreign service. The Veteran's records list his military occupational specialties (MOS) as Public Affairs Technician, Staff Support Administration Specialist, and Unit/Orderly Room Administration Specialist. In a September 2010 Statement in Support of Claim, the Veteran stated that he was diagnosed with diabetes secondary to Agent Orange exposure. He further asserted that his diabetes was uncontrollable, leading to renal failure. In October 2011, the Veteran submitted a July 2005 article stating that U.S. veterans say that various areas were sprayed with Agent Orange, to include the Panama Canal Zone from 1960's to early 1970's. The Veteran also submitted an internet-based article which cites a Dallas Morning News report asserting that the United States had tested herbicides, such as Agent Orange, in Panama during the 1960's and 1970's. In a March 2013 Response to a Request for Information, the Joint Services Records Research Center (JSRRC) documented that there were no records showing exposure to herbicides during the Veteran's period of service. The Board notes that the Veteran's military records of record also do not indicate exposure to herbicides during service. In April 2017, the Appellant submitted several Internet-based articles stating that Agent Orange was used in the Panama Canal during the 1960's and 1970's, including an article citing a former VA official as stating that the herbicides were shipped to Panama in the 1960's for tests. In an April 2017 Board hearing, the Appellant stated that the Veteran served in Panama in the 1970's. The Appellant went on to report that the Veteran was healthy until his 30s. She stated that the Veteran began to have health issues and was frequently tired. She stated that the Veteran later found out he had diabetes and a heart condition. The Appellant stated that she believed that exposure to Agent Orange caused the Veteran's diabetes and heart condition. The Appellant stated that some of the Veteran's family members had diabetes, but not like the Veteran. After review of the evidence, the Board finds that there is insufficient evidence to establish that the Veteran was exposed to herbicides during service. The evidence of herbicide use in the Panama Canal Zone consists of the Veteran's pre-mortem statements, the Appellant's statements, and the news article and reprinted Internet-based articles that assert that Agent Orange and other toxic herbicides were used by the U.S. military in Panama during the 1960s and 1970s. The articles, however, provide only speculative generic statements that contain no evidence that the Veteran in this case was exposed to herbicides during his service in Panama. Therefore, the articles do not, in and of themselves, support the claim for service connection. Wallin v. West, 11 Vet. App. 509 (1998). Moreover, the Veteran's MOS would not suggest exposure to herbicides. Furthermore, the JSRRC indicates that there is no evidence of the Veteran's exposure to herbicides during service. As this information was procured by sources with the ability to verify whether a solution had the chemical properties of an herbicide agent and whether locations and people were exposed to it, these statements are highly probative. Therefore, the evidence weighs against a finding of herbicide exposure, and the presumption of service connection based on herbicides exposure does not attach. The Board recognizes the Appellant's contention that the Veteran's diabetes resulted from the Veteran's period of service. Although lay persons are competent to provide opinions on some medical issues, the specific issue of determining the etiology of the Veteran's diabetes falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Appellant can competently report observed symptoms, any opinion regarding whether the Veteran's diabetes was related to his period of service requires medical expertise that the Appellant has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Appellant's assertions that the Veteran's diabetes was due to his service. Notwithstanding the foregoing presumption provisions, the Appellant may establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, the Veteran's records do not indicate a diagnosis of, complaint of, or treatment for diabetes during service or within one year following separation from service. Therefore, service connection under a direct service connection theory is not warranted. ORDER Entitlement to service connection for diabetes is denied. The appeal is dismissed as to the issue of entitlement to a TDIU, for accrued benefits purposes. The appeal is dismissed as to the issue of entitlement to compensation under 38 U.S.C. § 1151 for renal failure, for accrued benefits purposes. The appeal is dismissed as to the issue of entitlement to compensation under 38 U.S.C. § 1151 for right leg amputation, for accrued benefits purposes. REMAND While the Board sincerely regrets this delay, the record reflects that further development is required with respect to the etiology and nature of the Veteran's heart condition and cause of death. VA is obliged to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/ recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Although the record does not sufficiently show that the Veteran was exposed to herbicides such that it would establish service connection for ischemic heart disease on a presumptive basis, the Board will consider all theories of service connection, to include service connection on direct causation basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran's service treatment records indicate that in February 1976, he was treated for chest pain located in the upper left and center quadrant that he had experienced for 2 days. In a June 1976 medical record, the Veteran reported to the hospital for chest pain with congestion unchanged by deep breaths and continuing pain in the left anterior chest. Likewise, in a July 1976 examination, the Veteran reported that he was in treatment for chest pains that had been ongoing for two months. The Board notes that there are no medical records after the Veteran's separation from service showing treatment for a heart condition until 2005; however, the Appellant's April 2017 testimony indicates that the Veteran suffered ongoing symptoms of a heart condition. There is no nexus opinion regarding the Veteran's heart condition at the time of death and his complaints of chest pain while in service of record. Therefore, a remand for a medical opinion is necessary. As to service connection for cause of death, the issue is inextricably intertwined with the claim discussed above. As the case is being remanded to determine whether the Veteran's heart condition was connected to his period of service, the outcome of that decision will be relevant as to the issue of service connection for cause of death based on the Veteran's immediate cause of death listed as cardiac arrest. Therefore, the appropriate remedy is to defer consideration of the claim of entitlement to service connection for cause of death. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Accordingly, the case is REMANDED for the following action: 1. Invite the Appellant to submit any other information regarding the Veteran's treatment for his heart condition prior to 2005, if available. 2. Then, send the Veteran's claims file to an appropriate examiner for a medical opinion. The examiner should determine the nature and etiology of the Veteran's heart condition. The examiner shall consider all other medical records associated with this file during review, including the February 1976, June 1976 and July 1976 service treatment records. The examiner is asked to offer the following opinion: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's heart condition was manifested in, caused by, or is otherwise etiologically related to, his period of service. In rendering the requested opinion, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include any assertions as to onset and continuity of back symptoms. The examiner should explain the medical basis for the conclusions reached. 3. After any additional development deemed warranted, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. After the Appellant and her representative have had an adequate opportunity to respond, return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs