Citation Nr: 1804093	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  15-19 313	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Esq.


ATTORNEY FOR THE BOARD

K. Kovarovic, Associate Counsel 




INTRODUCTION

The Veteran served on active duty from July 1963 to July 1967, with additional reserve service.  He died in May 2013, and the Appellant is his surviving spouse.  He was not service-connected for any disabilities at the time of his death.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania.  Jurisdiction of the claim currently rests with the RO in Providence, Rhode Island.

A pre-hearing conference was held in December 2017.  In a December 2017 written statement, the Appellant's representative agreed to withdraw the pending hearing request if the undersigned found a basis upon which to grant the claim.  As such a basis has been found, the hearing request is considered withdrawn.  


FINDINGS OF FACT

1.  The Veteran was exposed to herbicide agents during service in Vietnam.

2.  The Veteran was diagnosed with lung cancer following his exit from service.    

3.  The Veteran's lung cancer contributed substantially to the cause of his death.


CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death have been met.  38 U.S.C. §§ 1310, 5103A, 5107 (2012); 38 C.F.R. §§ 3.310, 3.312 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Appellant is currently seeking entitlement to service connection for the cause of the Veteran's death.  Specifically, she contends that the Veteran's lung cancer, noted on his death certificate as a contributing cause of death, was etiologically related to his exposure to herbicide agents during service in Vietnam.

In this regard, the Board observes that the Veteran's military records do not confirm service in Vietnam.  The Veteran's receipt of the Vietnam Service Medal is in itself inadequate to establish Vietnam service for the purpose of proving herbicide exposure.  VA Adjudication Procedure Manual, M21-1, IV.ii.1.H.1.g.  Further, although the Veteran's records denote multiple foreign temporary duty assignments, the locations of said assignments are largely unidentified.  

Nonetheless, the record also contains a significant body of evidence which tends to corroborate the Veteran's presence in Vietnam.  Said evidence includes a number of statements offered by the Veteran's friends and family which detail his military service throughout Southeast Asia, including Vietnam.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses).  Most compelling among these statements is that offered by veteran D.R., who served with the Veteran and provided details regarding the nature of their service and their assignments to Vietnam.  See December 2014 lay statement.  The Veteran's son has also provided photographs of Vietnamese currency which was located in storage with the Veteran's military belongings.    

The above evidence, coupled with the absence of contradictory evidence from the record, compels the Board to conclude that the Veteran had military service in Vietnam.  As the Veteran's active duty falls between the period of January 9, 1962 and May 7, 1975, in-service exposure to herbicide agents is thereby conceded in this case.  38 C.F.R. § 3.307(a)(6)(iii) (2017). 

Per VA regulations, service connection may be granted on a presumptive basis for 
certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service.  38 C.F.R. § 3.307(a)(6) (2017).  Respiratory cancer, to include cancer of the lung, qualifies as one such disease.  Here, the evidence of record establishes that the Veteran was diagnosed with lung cancer in April 2013.  See private treatment records (noting that a right upper lobe wedge resection was positive for carcinoma).  

As the record is absent of evidence which rebuts the presumption of service incurrence, presumptive service connection is for application in this case.  38 C.F.R. § 3.307(d)(1) (2017).

Thus, the Appellant's claim may be granted upon evidence that the Veteran's lung cancer either caused or contributed substantially or materially to his death. For a disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather that there was a causal connection.  38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017).  Thus, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease, or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death.  See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1) (2017). 

A May 2013 discharge summary clearly establishes such a causal relationship in this case.  The Veteran was admitted for surgical evaluation and treatment of lung cancer in April 2013.  At that time, he underwent right upper lobe wedge resection and completion of right upper lobectomy.  His postoperative course was complicated with bilateral rhonchi, but progressed in the usual manner.  The Veteran's chest tube was removed four days later, with moderate but stable postremoval pneumothorax.  He had ongoing sputum production which was positive on culture, and was treated with antibiotics and pulmonary toilet aggressively.  However, the Veteran had increased oxygen requirements and progressive dyspnea.  He also had bilateral infiltrates.

The Veteran subsequently development atrial fibrillation with rapid ventricular response, which was treated with medication.  He was then transferred to the Intensive Care Unit and given a gammaglobulin infusion.  He progressively developed multiple symptoms with extensive bilateral infiltrates which appeared to be acute respiratory distress syndrome (ARDS).  He also had ongoing significant bronchospasm requiring high-dose steroids; probable Langerhans cell granulomatosis with a fibrotic phase; and an element of diastolic heart failure that initially responded to diuretics.  

However, the Veteran developed multiple infections including herpes, VRE with several episodes of bacteremia and invasive aspergillosis.  The Veteran ultimately suffered acute respiratory failure which required intubation.  He then developed agitation and delirium and became encephalopathic and unresponsive, such that he was no longer assisting the ventilator.  The Veteran then developed renal insufficiency, which was thought to be "contributing to his encephalopathy."  As a result, the Veteran underwent dialysis in May 2013 with progression of his multisystem organ failure.  He was later extubated and pronounced dead.  The Veteran's death certificate thus lists cardiac arrest, respiratory failure, aspergillosis, and VRE bacteria as the immediate causes of death, with herpes simplex (HSV) and a recent upper lobectomy as contributing conditions.  

The Board finds that the May 2013 discharge summary stands as competent and probative evidence of a causal connection between the Veteran's lung cancer, resultant treatment, and eventual death.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008)(holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion").

Accordingly, the Board finds that the preponderance of the evidence is in favor of a finding of service connection in this case, such that the claim is hereby granted.  38 U.S.C. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

VA's Duty to Notify and Assist

As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017).  Here, the Appellant has not raised any issues with the duties to notify or 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

Entitlement to service connection for the cause of the Veteran's death is granted.  



JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs