Citation Nr: 1801667 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-06 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1948 to September 1952 and from August 1959 to June 1976. The Appellant is his widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the VA Regional Office (RO). In the Appellant's February 2014 substantive appeal, she requested a Travel Board hearing. However, in March 2015 correspondence, she withdrew her Board hearing request. Her representative reiterated the withdrawn hearing request in a November 2017 appellate brief. The record contains some evidence not yet considered by the Agency of Original Jurisdiction (AOJ) that the Appellant or her representative submitted. As the February 2014 substantive appeal was received after February 3, 2013, this evidence is subject to initial review by the Board because neither the Appellant nor her representative explicitly has requested AOJ consideration. See 38 U.S.C. § 7105(e). Moreover, evidence obtained by the RO after the January 2014 statement of the case (SOC) was either duplicative of evidence previously considered by the RO or not pertinent to the claim on appeal. Accordingly, the Board may proceed with a decision. The Appellant's February 2014 substantive appeal explicitly challenged the January 2014 SOC, which only adjudicated the issue of entitlement to service connection for the Veteran's cause of death, to include as due to herbicide exposure. The RO issued a separate, July 2014 SOC denying entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318. However, neither the Appellant nor her representative perfected an appeal as to that separate issue or otherwise expressed any intent to do so. Therefore, although the RO certified both DIC issues to the Board in an October 2014 VA Form 8, the Board finds that the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 is not on appeal. While some of the Veteran's service records in the claims file are illegible, they are marked with the "Best Copy" stamp. Furthermore, a National Personnel Records Center (NPRC) response received in September 2013 regarding the Veteran's service personnel records stated, "We regret the microfiche are of poor quality; however, they are the best obtainable." Thus, further efforts to obtain new scans would be fruitless. FINDINGS OF FACT 1. The Veteran's death certificate reflects that he died in September 2008, and prostate cancer was his sole cause of death. 2. At the time of his death, the Veteran was service connected for bilateral hearing loss (assigned a noncompensable, or zero percent, disability evaluation) and tinnitus (assigned a 10 percent disability evaluation). 3. The Veteran's alleged exposure to herbicide agents during the Vietnam Era has not been verified; and there is no competent evidence of record showing that the Veteran's sole cause of death, prostate cancer, was in any way related to his service, to include alleged herbicide exposure. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 1310, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.22, 3.102, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Cause of Death The Appellant claims service connection for the cause of the Veteran's death. She primarily contends that his cause of death, prostate cancer, was due to herbicide exposure during the Veteran's Vietnam Era service. The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Pertinent regulations for consideration were provided in the January 2014 SOC and will not be repeated here in full. After a full review of the record, the Board finds that service connection for the cause of the Veteran's death must be denied. The weight of the evidence is against a finding that the Veteran's sole cause of death, prostate cancer, was incurred in service, resulted from a disease or injury incurred during service (to include claimed herbicide exposure), manifested to a compensable degree within a year of service, or was caused or aggravated by a service-connected disability. The Veteran's death certificate lists prostate cancer as the sole cause of the Veteran's September 2008 death. The claims folder contains no medical evidence suggesting that any other disability caused or contributed to the Veteran's death. The Appellant primarily contends that the Veteran's cause of death, prostate cancer, was due to herbicide exposure during his Vietnam Era service. Specifically, in an October 2012 statement, she suggested that the Veteran was exposed to herbicide agents during his U.S. Navy service aboard multiple ships that she alleged entered the waters around Vietnam. The Board acknowledges that prostate cancer is specifically listed as a disease associated with exposure to herbicides. 38 C.F.R. § 3.309(e). However, the Veteran's alleged herbicide exposure during service has not been verified. Service on a deep-water naval vessel in the waters offshore Vietnam does not constitute exposure to herbicide agents, but service on the inland waterways of Vietnam is presumed to expose a veteran to herbicides. See Gray v. McDonald, 27 Vet. App. 313 (2015); see also Haas v. Peake, 525 F.3d 1168, 1193-97 (2008). VA maintains a directory of ships entitled "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents" ("list"). The list (last updated in November 2017) includes ships that operated primarily or exclusively on Vietnam's inland waterways, temporarily on Vietnam's inland waterways or docked to the shore, and on Vietnam's close coastal waters for extended periods (with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly). Some of the ships on which the Veteran served during the Vietnam Era are on the list. However, the Veteran did not service on those ships during the periods when the list specifies that the ships were in the inland waterways of Vietnam or docked to shore or pier in Vietnam. Specifically, the Veteran's service personnel records show that he served aboard the following U.S. Navy ships during the approximate referenced dates: USS Markab (AR-23) (July 1961 to December 1964); USS Duxbury Bay (AVP-38) (January 1965); USS Albany (CG-10) (January 1965 to February 1967); USS Mullany (DD-528) (October 1969 to September 1971); USS Horne (DLG -30) (November 1971 to November 1972); USS Samuel Gompers (AD-37) (December 1972 to April 1973); and USS Reclaimer (ARS-42) (April 1973 to October 1974). Of the ships on which the Veteran served during the Vietnam Era referenced above, the following are included on the list: USS Markab (AR-23) (listed under "Ships operating temporarily on Vietnam's inland waterways" - specifically noted to have conducted repair operations on Ganh Rai Bay during November 1967); USS Mullany (DD-528) (listed under "Ships operating temporarily on Vietnam's inland waterways" - specifically noted to have entered Qui Nhon Bay during June 1965); USS Samuel Gompers (AD-37) (listed under "Ships that docked to shore or pier in Vietnam" - specifically noted to have had multiple dockings to piers at Da Nang during April 1972); and USS Reclaimer (ARS-42) (listed under "Ships operating temporarily on Vietnam's inland waterways" - specifically noted to have operated in Saigon Harbor to salvage USS Card (ACV-11) from sinking in Saigon River during May 1964 and in Rung Sat Special Zone of Mekong River Delta salvaging ships during early 1966). In summary, although the list includes some of the Veteran's ships from the Vietnam Era, his personnel records show that he did not serve aboard any of them during the specific periods when they were either temporarily in Vietnam's inland waterways or docked to shore or pier of Vietnam. Therefore, contrary to the Appellant's contention otherwise, herbicide exposure cannot be conceded on this basis. Although the Veteran's service medical records and service personnel records confirm his service aboard various Navy vessels during the Vietnam era, they do not verify herbicide exposure based on theories of either service aboard those ships or service on the landmass of Vietnam. Moreover, the RO's attempts to verify herbicide exposure during service yielded a negative response from NPRC in September 2013. Although the RO attempted to verify herbicide exposure through the Joint Services Records Research Center (JSRRC), the RO was unable to do so because the Appellant failed to respond to various RO notices asking her to provide the requisite time periods of alleged herbicide exposure. See January 2014 formal finding of unavailability (summarizing herbicide exposure development efforts). Despite the Appellant's and her representative's contentions otherwise, the Board finds that the weight of the evidence does not support a finding that the Veteran was exposed to herbicide agents either due to "boots on the ground" service on the landmass of Vietnam, or while aboard Navy vessels traveling on inland waterways or docked to shore or pier in Vietnam. In summary, service connection for the cause of the Veteran's death cannot be granted presumptively based on alleged, unverified exposure to herbicide agents during service. Nor can service connection for the cause of the Veteran's death be granted on a direct basis. Although the Veteran's service medical records and service personnel records confirm his service aboard various Navy vessels during the Vietnam era, they do not verify herbicide exposure, as noted above. Moreover, the Veteran's service treatment records are silent for any treatment, symptoms, or diagnoses of a prostate condition. Indeed, multiple reports of medical examination affirmatively showed that the Veteran's genitourinary system was normal, including his June 1976 retirement examination. Furthermore, there is no competent medical evidence of record suggesting any relationship between service (including claimed herbicide exposure) and the sole cause of the Veteran's death, prostate cancer. The Board recognizes the Appellant's representative's contentions in a February 2015 statement suggesting that the Veteran's prostate cancer was due to exposure to asbestos at some unspecified point during his long Navy career. The representative also suggested in that statement that the Veteran was "possibly" exposed to Agent Orange stored on unspecified ships during unspecified periods of service. The Board rejects both arguments as completely conclusory. Indeed, the representative cited no specific evidence in support of those speculative theories. In the Appellant's own lay statements of record raising specific contentions regarding the issue on appeal, she herself did not raise either of these theories, but rather focused on the Veteran's alleged herbicide exposure during his Vietnam Era service. Moreover, the Veteran's representative is not competent to provide a medical opinion, which it essentially has attempted to do in February 2015 statement. Favorable lay evidence that merely suggests a possibility that a veteran's illness might have been caused by service is insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). The representative also appears to have abandoned these theories in the November 2017 appellate brief, which only references the Appellant's specific contention regarding alleged herbicide exposure during the Veteran's Vietnam Era service. The Board also rejects both February 2015 theories for the specific reasons discussed below. Regarding the first theory, there is no presumption that a veteran was exposed to asbestos in-service. Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. Section IV.ii.1.I.3.a. of the Manual explains: Veterans who were exposed to asbestos while in service and developed a disease related to that asbestos exposure may receive compensation benefits. In order to establish entitlement to compensation based on exposure to asbestos, the evidence must show in-service asbestos exposure, and a diagnosed disability that has been associated with in-service asbestos exposure. In this case, the Board concedes that the Veteran's service personnel records confirm that during certain periods of active duty service in the U.S. Navy, he had the military occupational specialty (MOS) of fireman ("FN"); this Navy MOS suggests highly probable asbestos exposure during service. See VA Adjudication Manual ("Manual"), M21-1, Section IV.ii.1.I.3.d. (Use of Navy MOS to Determine Probability of In-Service Asbestos Exposure). However, there is no competent medical evidence of record suggesting any association between the Veteran's cause of death, prostate cancer, and asbestos exposure. Indeed, to the contrary, the Manual specifically instructs that inhalation of asbestos fibers can produce tumors and cancers of the urogenital system, "except the prostate." See M21-1, Section IV.ii.2.C.2.b. (General Effects of Asbestos Exposure) (emphasis added). Regarding the second theory, the Board refers to the May 2009 JSRRC memorandum (received in October 2013) summarizing JSRRC's negative findings regarding the existence of evidence that Navy ships transported tactical herbicides from the U.S. to Vietnam, or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. The Board considered the lay evidence of record, including the Appellant's and her representative's statements suggesting a relationship between the Veteran's prostate cancer and service, to include alleged herbicide exposure or conceded asbestos exposure. While the Appellant is competent to report what she observed about the Veteran's health or what he informed her about events in service, neither she nor her representative is competent to opine as to the cause of the Veteran's death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board affords such lay statements little probative value. Furthermore, the Appellant does not contend and there is no medical evidence of record that would support a finding that prostate cancer manifested to a compensable degree within one year of service separation. Likewise, the Appellant does not contend and there is no medical evidence of record that would support a finding of continuity of prostate cancer symptomatology since service. See 38 C.F.R. §§ 3.303(b), 3.309(a), 3.307(a)(3). Finally, there is no allegation or evidence suggesting that the Veteran's prostate cancer was in any way related to his service-connected conditions of bilateral hearing loss or tinnitus. In summary, the Veteran's prostate cancer was not incurred in service, did not result from a disease or injury incurred during service (to include claimed herbicide exposure), was not manifested to a compensable degree within a year of service, and was not caused or aggravated by a service-connected disability. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt standard does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. II. Duties to Notify and Assist The Board recognizes the February 2015 statement in which the Appellant's representative suggested that VA did not satisfy the duty to assist in developing the theories that the Veteran's cause of death, prostate cancer, was related to "possible" Agent Orange stored on unspecified Navy ships, or alternatively, asbestos exposure. However, the Board rejects this contention for the following reasons. The Board finds that, contrary to the representative's contention otherwise, the RO satisfied the duty to assist. Neither the Appellant nor her representative has cited any specific factual basis for either of these vague, conclusory theories. Nor have they suggested the possible existence of any outstanding, relevant evidence that might support either of these theories. VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, the Board reiterates that the JSRRC May 2009 memorandum of record (summarized above) flatly contradicts the Appellant's representative's highly speculative, vague theory of "possible" Agent Orange exposure based on herbicide agents stored on unspecified ships during unspecified periods of service. In summary, the Board finds that the RO properly declined to develop these highly speculative, conclusory, and vague theories that the representative raised in passing in a single statement, and that neither the representative nor the Appellant have raised since then. Instead, the RO properly focused its extensive development efforts on the Appellant's main contention that the Veteran's cause of death was due to alleged herbicide exposure during his Vietnam Era service aboard Navy vessels. Neither the Appellant nor her representative has raised any other issues with the duty to notify or duty to assist. 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). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs