Citation Nr: 1801382 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-12 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Air Force from April 1965 to September 1968. He died in April 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In September 2014, the appellant testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing has been associated with the claims file. This case was previously before the Board in October 2015, at which time it was remanded for additional development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT 1. The Veteran died in April 2012 from upper thoracic spinal cord compression due to lung cancer. 2. At the time of his death, the Veteran was not service-connected for any disability. 3. The Veteran did not serve in the Republic of Vietnam. 4. The Veteran was not exposed to herbicide agents during active service. 5. A service-connected disability was not the immediate or underlying cause of the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 1310, 5107 (West 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 I. Duties to Notify and to Assist Pursuant to the Veteran's Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). VA's duty to notify was satisfied by a letter dated July 2012. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C § 5103A; 38 C.F.R. § 3.159(c). The duty to assist the appellant in the development of her claim has been met. All potentially relevant evidence necessary to adjudicate the claim has been identified and obtained. Neither the appellant nor her representative has advanced any procedural arguments in relation to VA's duty to notify and assist; accordingly, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). II. Service Connection for Cause of Death Legal Criteria Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b) (2017). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312 (c) (2017). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death. A causal relationship must be shown. 38 C.F.R. § 3.312 (2017). Service-connected disabilities affecting vital organs should receive careful consideration as a contributory cause of death. That requires a determination as to whether there were debilitating effects and a general impairment of health caused by the service-connected disability which rendered the veteran less capable of resisting the effects of an unrelated disability. 38 C.F.R. § 3.312 (c)(3) (2017). In cases where the primary cause of death is by its very nature so overwhelming that eventual death is anticipated irrespective of coexisting disabilities, there must be a determination as to whether there is a reasonable basis that a service-connected disability had a material effect in causing death. In that situation, it would not generally be reasonable to hold that a service-connected condition accelerated death unless the condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312 (c)(4) (2017). There are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting disorders, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected disability was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected disability accelerated death unless such disability affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312 (c)(4) (2017) . Medical evidence is required to establish a causal connection between service or a disability of service origin and the veteran's death. Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). At the time of his death, the Veteran was not service-connected for any disabilities. Thus, the Board must consider the laws that otherwise govern establishing service connection for a disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests a chronic disease, to include cancer of the lung, to a compensable degree within one year of separation from 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. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Service connection can also be established on a presumptive basis for certain diseases associated with in-service exposure to toxic herbicides. See 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309. Cancer of the lung is one such disease. 38 C.F.R. § 3.309(e). Presumptive service connection for cancer of the lung as a result of exposure to herbicide agents is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met, which include a presumption of exposure to herbicide agents for veterans with service in Vietnam during specific time periods, or service in specific areas of Korea during specific time periods. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicide agents is not presumed in such instances. However, once exposure to herbicide agents have been established by the evidence of record and verified through the appropriate service department or other sources, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Notwithstanding the foregoing discussion regarding presumptive service connection, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Proof of direct service connection between exposure and disease entails showing that exposure during service actually caused the malady which developed years later. Actual causation carries a difficult burden of proof. See Combee, 34 F.3d at 1042. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Background and Analysis The Veteran died in April 2012. The appellant claims that service connection for the cause of the Veteran's death, identified on the death certificate as upper thoracic spinal cord compression due to lung cancer, is warranted. Specifically, she alleges that the Veteran was exposed to herbicide agents, including Agent Orange, from September 1967 to September 1968 while he was serving on the Kadena and Naha Air Bases in Okinawa, Japan. The Veteran's service records also show that he was stationed at the Miyako Jima Air Station, also in Okinawa, Japan. The appellant claims that the Veteran's herbicide agent exposure presumptively caused his lung cancer, which, in turn, caused his upper thoracic spinal cord compression. Based on the analysis below, the Board has determined that the preponderance of the evidence is against the claim and service connection for the cause of the Veteran's death is not warranted. The Veteran's military personnel records confirm that the Veteran served on air bases in Okinawa, Japan from September 1967 to September 1968. The Veteran's service treatment records include the Veteran's enlistment and separation examinations. Both examinations reported the Veteran's chest and lungs as normal. The records do not reveal complaint, treatment, or diagnosis of lung cancer during service or within one year of separation. The Veteran was not service-connected for any disability during his lifetime. According to private treatment records, the Veteran was diagnosed with lung cancer in March 2012, after experiencing pain in his shoulder for a year and a half. A computed tomography (CT) scan at that time revealed that the cancer had metastasized to his bones, eroding his chest wall and vertebral body. Less than three weeks later, in April 2012, the Veteran was admitted to the hospital with paraplegia, due to the cancer invading the thoracic spine and causing thoracic spinal cord compression. He died shortly thereafter. The appellant further testified to these facts during the September 2014 video conference hearing. As an initial matter, the Board notes that military personnel records show the Veteran did not serve in the Republic of Vietnam during the Vietnam era, and therefore exposure to herbicide agents cannot be presumed for the Veteran. As such, the provisions related to presumptive exposure to herbicide agents are not for application. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Therefore, actual exposure to herbicide agents must be verified through the appropriate service department or other sources in order for the presumption of service connection for an herbicide-related disease under 38 C.F.R. § 3.309(e) to be applicable. Pursuant to the October 2015 Board remand directives, the RO contacted VA's Compensation Service in an effort to corroborate the Veteran's claimed exposure to herbicide agents. In February 2016 correspondence, Compensation Service responded, in part: "... [Department of Defense] has not identified any location on the island of Okinawa where Agent Orange was used, tested, or stored. Agent Orange was developed for combat operations in Vietnam and was used from 1962 to early 1971. There were no combat operations on Okinawa during those years so there was no need for Agent Orange use there... Compensation Service can provide no evidence to support the claim." The RO also contacted the Joint Services Records Research Center (JSRRC) via the Defense Personnel Records Information Retrieval System (DPRIS). In three separate responses received in June 2016 and September 2016, the JSRRC confirmed that the Veteran's unit was stationed at Miyako Jima Air Station in Okinawa during the specified time period. However, it reported that military records do not show "[the Veteran] or unit personnel being exposed to Agent Orange or tactical herbicides while performing their daily duty assignments as Aircraft Control and Warning Squadron personnel while stationed at Miyako Jima Air Station, Okinawa." The JSRRC also reported that it had reviewed Department of Defense listings of herbicide agent spray areas and test sites outside the Republic of Vietnam, and Miyako Jima Air Station was not a listed location. The JSRRC concluded that, "after a review of the historical information, we were unable to document that [the Veteran] was exposed to Agent Orange or tactical herbicides during his tour [in Okinawa]." In an April 2017 memorandum, the RO made a formal finding that it was unable to verify that the Veteran was exposed to herbicide agents while stationed in Okinawa. In light of the actions taken by the RO to attempt to verify the Veteran's exposure to herbicide agents in Okinawa, the Board finds that all necessary steps to attempt to verify the reported in-service exposure have been accomplished. Therefore, further attempts to verify the Veteran's exposure to herbicide agents in Okinawa are not warranted. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Based on the evidence of record, the Board finds that the Veteran was not exposed to herbicide agents such as Agent Orange during his period of active duty service. Under these circumstances, the Veteran is not entitled to the legal presumption of herbicide agent exposure. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The Board acknowledges the appellant's contentions that the Veteran's lung cancer, and ultimately, his death, was due to exposure to herbicide agents while stationed in Okinawa. In an October 2012 correspondence, the appellant presented several arguments to support her claim that herbicide agents were, in fact, stored or used in Okinawa. First, the appellant argued that prior Board decisions have conceded the existence of herbicide agents on Okinawa. However, the Board notes that prior Board decisions do not establish precedent, and are uniquely related to the facts and circumstances present in each particular case. 38 C.F.R. § 20.1303. In this case, the competent, probative evidence of record does not demonstrate that the Veteran was exposed to herbicide agents during service. The appellant also cited to an Army report from 2003 titled "An Ecological Assessment of Johnston Atoll", which revealed that herbicide agents had been stored on Okinawa prior to 1971. The Board acknowledges the evidence contained in this report that herbicide agents were potentially being stored in Okinawa while the Veteran was stationed there in 1967 and 1968, however, there is no evidence that herbicide agents were ever used in Okinawa or that the Veteran ever came in contact with any herbicide agents while stationed there. Finally, the appellant pointed to Operation Red Hat as further evidence that Agent Orange had been stored on Okinawa. However, the Board notes that Operation Red Hat, in which the U.S. military transferred chemical weapons being stored in Okinawa to Johnston Atoll in 1971, was not associated with the use or transfer of herbicide agents. Aside from her arguments that herbicide agents may have been stored in Okinawa during the time the Veteran was stationed there, the appellant has not provided any statements or other evidence that the Veteran was ever exposed to herbicide agents. The appellant's argument that the Veteran could have been exposed to herbicide agents in Okinawa without corroborating evidence has little probative value. Although the Board finds the appellant credible, the record is negative for competent evidence as to herbicide exposure to the Veteran in Okinawa. The appellant is competent to provide testimony regarding factual matters of which she has firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the appellant does not contend to have firsthand knowledge of herbicide exposure, nor has she provided lay statements to display firsthand knowledge the Veteran shared with her regarding his potential exposure to herbicide agents. In fact, during her September 2014 video conference hearing, the appellant testified that the Veteran never talked to her about his military experiences. While the appellant may honestly believe the Veteran was exposed to herbicide agents, her uncorroborated belief is insufficient to shift the preponderance of the evidence in favor of finding the Veteran was exposed to herbicide agents in-service. Service connection may also be granted on a presumptive basis for lung cancer since it is a chronic disease, if it manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran's service treatment records and private medical records on record are silent regarding any lung-related disability until the Veteran was diagnosed with lung cancer in March 2012, almost 44 years after separation from service. This falls outside of the one year window to grant service connection for a chronic disability on a presumptive basis. In the absence of demonstration of continuity of symptomatology, this is too remote from service to be reasonably related to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has also considered whether service connection for the Veteran's death is warranted on a direct basis due to exposure to herbicide agents. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed Cir. 1994). In this regard, there is no medical evidence or opinion linking his lung cancer directly to in-service exposure to herbicide agents or to his active service. The only medical opinion of record, a letter dated October 2012 from Dr. J.W., fails to provide a nexus opinion to service. The only evidence of record that indicates a nexus between the Veteran's death and service, to include the claimed exposure to herbicide agents is the appellant's own assertions. Although the appellant is competent to relay lay-observable symptoms, the appellant is not competent to opine that the Veteran's death was etiologically related to service as this is a complex medical question beyond the knowledge of a layperson and she lacks the requisite medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Jones v. Brown, 7 Vet. App. 134, 137 (1994). The Board finds that service connection for the cause of death is not warranted on a direct basis, as the evidence of record fails to establish a causal relationship between the Veteran's lung cancer and the claimed exposure to herbicide agents, or to any aspect of the Veteran's active service. See 38 C.F.R. § 3.303. Accordingly, the claim of entitlement to service connection for cause of the Veteran's death is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs