Citation Nr: 1801864 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-42 729 ) 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. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran had active military service from September 1966 to September 1969. He died in February 2010, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In December 2015, May 2016, and November 2016, the Board remanded this matter for additional development. 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 died in February 2010. The cause of death was anoxic brain injury due to cardiac arrest with a history of ischemic cardiomyopathy. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. The Veteran did not serve in the Republic of Vietnam or another area in which exposure to herbicide agents may be presumed. 4. The most probative evidence fails to show actual herbicide exposure, and there is no evidence suggesting that the Veteran's death was otherwise related to his military service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 1110, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.300, 3.303, 3.309, 3.311, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties of Notify and Assist Neither the appellant nor her representative has raised any 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 duty to assist). In December 2015, May 2016, and November 2016, the Board remanded the case for additional development. The Board finds that the RO has substantially complied with the remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As discussed in detail below, the AOJ properly followed the procedures outlined in the Veteran's Benefits Administration Manual (M21-1) for attempting to verify exposure to herbicides in locations other that the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. II. Service Connection for Cause of Death The Veteran died in February 2010. The cause of death was anoxic brain injury due to cardiac arrest with a history of ischemic cardiomyopathy. At the time of his death, the Veteran was not service connected for any disabilities. The appellant, who is the Veteran's surviving spouse, contends that service connection for the cause of the Veteran's death is warranted. Specifically, the appellant's sole assertion is that the Veteran's heart condition (i.e., ischemic heart disease) that caused his death should be presumptively service connected because he was exposed to herbicides while serving as a longshoreman in Okinawa. A. Legal Criteria 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.A. 1110, 1131; 38 C.F.R. 3.303(a). In general, service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. 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. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide agent exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Ischemic heart disease is included in the list of enumerated diseases. The presumptive regulations, however, do not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, effective February 24, 2011, VA amended its regulations (38 C.F.R. § 3.307) to extend a presumption of herbicide exposure to certain Veterans who served in Korea. 76 Fed. Reg. 4245 -01 (Jan. 25, 2011). Specifically, a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309 (e) are applicable. B. Facts and Analysis The Board initially notes that the Veteran did not have active service in the Republic of Vietnam or Korea. Service personnel records, including his DD Form 214, do not document service within Vietnam or Korea. The appellant does not assert that the Veteran had in-country duty or visitation in the Republic of Vietnam or Korea. Rather, she contends that the Veteran was exposed to Agent Orange while serving in Okinawa, Japan from January 1967 to August 1968. She claims that the Veteran was exposed to herbicide containers that were often leaking or ruptured as part of his daily activities, which included moving such containers, as a longshoreman/stevedore. See December 2014 VA Form 9. Hence, the Veteran is not presumed to have been exposed to herbicides. However, that does not preclude the appellant from establishing entitlement to service connection for the cause of the Veteran's death due to ischemic heart disease due to actual exposure to herbicides. In that connection, VA has affirmed that, if a Veteran did not serve in Vietnam but was exposed to an herbicide agent as defined in 38 C.F.R. § 3.307(a)(6) during service and has a disease that is on the list of diseases subject to presumptive service connection, then VA will presume that the disease is due to the exposure to herbicides. See 66 Fed. Reg. 23,166-69 (May 8, 2001); 38 C.F.R. § 3.309(e). Here, service personnel records confirm that the Veteran serviced as a longshoreman in Okinawa with the 412th Transportation Company from January 1967 to August 1968. The Veteran's Benefits Administration Manual (M21-1) provides a procedure for verifying exposure to herbicides in locations other that the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea, which requires: (1) asking the appellant for the approximate dates, location, and nature of the Veteran's alleged exposure; (2) furnishing the detailed description of exposure to Compensation Service for confirmation; and (3) requesting a review of the Department of Defense (DOD) inventory of herbicide operations to determine whether herbicides were used as alleged. If Compensation Service's review confirms that herbicides were used as alleged, then a determination must be made as to whether service connection is in order. If Compensation Service's review does not confirm that herbicides were used as alleged, then a request must be sent to the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. See M21-1 MR, Part IV, Subpart ii, Chapter 1, Section H, Subsection 7. In June 2016, the AOJ send a request to Compensation Service to verify whether the Veteran was exposed to herbicides or any other hazardous or toxic chemicals while serving in Okinawa. In a June 2016 response, Compensation Service indicated that the DOD has provided a list of locations outside Vietnam and the Korean Demilitarized Zone where tactical herbicides, such as Agent Orange, were used, tested, or stored. Compensation Service noted that the list does not contain names of individuals involved with the tactical herbicides, and does not reference routine base maintenance activities, such as range management, brush clearing, and weed killing. It further noted that such activities were accomplished with commercial herbicides on all military bases worldwide, and that commercial herbicides do not fall under the regulations governing tactical herbicides at 38 C.F.R. § 3.307 (a)(6)(i). Regarding the appellant's specific contentions, Compensation Service indicated that DOD had not identified any location on the island of Okinawa where Agent Orange was use, tested, stored, or transported. It also noted that Agent Orange was developed for jungle combat operations in Vietnam and because there were no combat operations on Okinawa, there was no need for Agent Orange use there. Compensation Service also indicated that Okinawa was not on the Agent Orange shipping supply line, which went directly from Gulfport, Mississippi to South Vietnam via merchant ships. Therefore, Compensation Service concluded that they could provide no evidence to support the claim and directed the AOJ to refer the matter to the JSRRC for any information that organization could provide to corroborate the Veteran's claimed exposure. In December 2016, the AOJ sent a request for verification of exposure to herbicides for the year 1967 to the JSRRC. In a February 2017 response, the JSRRC indicated that it had reviewed the 1967 unit histories submitted by the 412th Transportation Company and the 2nd Logistical Command, which documented that the unit was located at Naha Army Base, Okinawa, Japan. The JSRRC indicated that the records did not document the use, storage, spraying, or testing of herbicides, to include Agent Orange, at Naha Army Base. The JSRRC further noted that two potential sources for information concerning the Veteran's possible exposure were the United States Army Medical Research Institute of Chemical Defense and the United States Army Medical Department, Office of the Surgeon General. In March 2017, the AOJ contacted the United States Army Medical Research Institute of Chemical Defense as directed by the JSRRC. In a March 2017 response, the United States Army Medical Research Institute of Chemical Defense responded that it was unable to find any records concerning the Veteran. The AOJ also sent a request for verification of exposure to herbicides for the year 1968 to the JSRRC. The JSRRC provided a response in May 2017, stating, "We coordinated our research with the National Archives and Records Administration (NARA) in College Park, Maryland. They were unable to locate 1968 unit records submitted by the 412th Transportation Company (Terminal Service). We reviewed the 1967 unit history submitted by the 412th Transportation Company (Tml Svc) (412th Trans Co). We also reviewed the 1967 - 1968 histories submitted by the 2 Logistical Command (2nd Log Cmd). The histories document the 412th Trans Co was located at NAHA Army Base, Okinawa, Japan. The histories do not document the use, storage, spraying, or testing of Agent Orange or other tactical herbicides at Naha Army Base. Also, the histories do not document unit personnel moving or handling Agent Orange, toxic chemicals or herbicide containers." In March 2017, the AOJ contacted the United States Army Medical Department as directed by the JSRRC. In a July 2017 memorandum, the United States Army Public Health Center (Center) responded regarding the AOJ's request for information regarding potential Agent Orange exposure during the Veteran's military service with the 412th Transportation Company in Okinawa from January 1967 through August 1968. The Center noted as follows: The issue of storage/use of Agent Orange on Okinawa has been investigated several times in recent years. None of the investigations have revealed any evidence that any of the tactical herbicides have ever been stored, used, tested, shipped to, or disposed of in Okinawa. Obtaining and moving tactical herbicides involved a significant amount of permission and logistical support. To date, no documentation has been found to indicate that tactical herbicides were delivered or handled in Okinawa. Tactical herbicides were only authorized for use by combat units in a combat situation and supervised by a Chemical Corps officer. The paper trail would require approval from the U.S. Army Chemical Corps and/or the San Antonio Air Material Area Air Force Logistics Command, and the Military Sea Transportation Service. This would necessitate generating a "Joint Message Form" which was used to justify and schedule the numerous equipment and personnel needed to move the cargo, each requiring its own paperwork. The use of tactical herbicides in Vietnam required that shipments were expedited directly from the U.S. based port of origin to Vietnam. Unlike other materials that were not being used as quickly, tactical herbicides were not stockpiled in route to Vietnam. As such, [the Veteran] could not have been exposed to any of the tactical herbicides. In a May 2017 memorandum, the AOJ formally found that it was unable to verify the Veteran's exposure to herbicides. Thus, the Veteran's claimed exposure to herbicides in Okinawa, Japan, was not verified through a review of the evidence of record, a request to Compensation Service, or a request to JSRRC. In light of the foregoing, the Board finds that the AOJ properly followed the provisions of M21-1 in attempting to verify the Veteran's claimed herbicide exposure. In support of the assertion that the Veteran was exposed to herbicides in Okinawa, the appellant cites to several prior Board decisions for other Veterans in which the Board granted service connection based on exposure to herbicides in Okinawa. One of the decisions by the Board was also cited in a news article in The Japan Times, which the appellant submitted to show that the Board had generally conceded the presence of herbicides on Okinawa. The appellant also submitted internet-based articles that argue that Agent Orange was used and stored in Okinawa, Japan, during the1960s. Regarding the previous Board decisions submitted or referenced by the appellant, the Board notes that each decision by the Board is necessarily based on review of the evidence of record in a particular claims file and has no precedential value toward adjudication of appeals by other claimants, even those who may appear to be similarly situated. See 38 C.F.R. § 20.1303. Furthermore, the present appeal can be distinguished from the earlier cases before the Board in two significant respects. First, the claimants in the cited cases provided first hand lay testimony of exposure to herbicides while serving in Okinawa. The individuals provided detailed explanations of when and how they came into contact with herbicides while serving in Okinawa. Although herbicide exposure was also unverifiable by the military in that case, the Board found the Veterans credible and competent; therefore finding the lay testimony highly probative in that instance. Moreover, in a 2006 Board decision cited by the appellant's representative in a November 2017 Appellate Brief, the JSRRC was unable to find any records of the Veteran's unit from 1968, which made the Veterans' lay statements particularly probative. In contrast, the record in the present case contains evidence against the presence of herbicides on Okinawa, based on research of pertinent government records that was not cited in the prior Board decision, and that may not have even been available to the Board at the time that decision was made. Due to the differences between the appellant's claim and the previous Board decisions, this evidence has little probative value in the appellant's appeal. Further, the Japan Times and internet-based articles are based wholly on the findings included in a prior Board decision without any additional evidence being added regarding actual use of herbicides in Okinawa. For this reason, the Board places no probative value on the newspaper and internet-based articles. The appellant's contentions that the Veteran could have been exposed in Okinawa without corroborating evidence have 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 had 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 does she provide lay statements to display firsthand knowledge that the Veteran shared with her regarding his potential exposure to herbicides. The appellant may honestly believe the Veteran was exposed to herbicides. However, the appellant's evidentiary statements of feelings, hypothetical circumstances, and theories regarding potential herbicide exposure lack factual bases and are insufficient to shift the preponderance of the evidence in favor of finding the Veteran was exposed to herbicides. Based on the above, the Board finds there is no probative evidence supporting a finding that the Veteran was exposed to herbicides during his active service. As use of herbicides in Okinawa is not verified and given that the Veteran did not serve in Vietnam or Korea, service connection for the cause of the Veteran's death is not warranted on a presumptive basis due to herbicide exposure. See 38 C.F.R. §§ 3.307 (a) (6) (iii), 3.309(e). Finally, the evidence does not otherwise link the Veteran's heart condition to service. In this case, the appellant does not assert, and the record does not indicate, that he experienced continuous heart problems during or since his active service. Nor does the appellant contend that the Veteran's heart condition was caused by any aspect of service other than herbicide exposure. The Veteran's service treatment records are absent for evidence of in-service treatment for a heart condition, and the Veteran's heart was evaluated as clinically normal during an August 1969 separation examination. In addition, there is no competent evidence of record linking the Veteran's heart condition to his active service on a direct basis. The record reflects that the Veteran was diagnosed with coronary heart disease in 1997, which was almost 30 years after service separation. Therefore, the record does not show that the Veteran's heart condition had its onset during his active service or is otherwise etiologically related to his active service on a direct basis. See Combee, 34 F.3d at 1043. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the claim for service connection for the cause of the Veteran's death must be denied. In reaching this determination, the Board does not question the appellant's sincere belief that the cause of the Veteran's death is disease due to service, and specifically, that he was exposed to herbicides. While the Board is cognizant of the late Veteran's honorable service in defense of his country and is sympathetic to his widow's situation, her personal belief that the Veteran had exposure to herbicides, no matter how sincere, is simply not supported by the evidence. See Voerth v. West, 13 Vet. App. 117, 119 (1999). For the above stated reasons, the preponderance of the evidence weighs against a finding that the Veteran died from a condition that was incurred or aggravated in service. The benefit-of-the-doubt doctrine is therefore not helpful to the appellant, and the claim for service connection for the cause of the Veteran's death must be denied. See 38 U.S.C.A. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57; O'Hare, 1 Vet. App. at 367. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs