Citation Nr: 1805122 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-24 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had honorable active military service from December 1967 to December 1971. He died in September 2009. By administrative decision dated in April 2011, the appellant was determined to be the Veteran's surviving spouse for VA purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appellant appeared and testified at a Board video-conference hearing held before the undersigned Veterans Law Judge in December 2013. The transcript of this hearing is associated with the claims file. Thereafter, the Board remanded this appeal in April 2014 and May 2016 for additional development. The Board finds that substantial compliance with the prior remands has been accomplished. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the appellant's claim without prejudice to her. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT 1. The preponderance of the evidence fails to establish that the Veteran served within the Republic of Vietnam. 2. The Veteran died in September 2009 as a result of cardiopulmonary failure due to non-ischemic cardiomyopathy and chronic obstructive pulmonary disease (COPD) with other significant contributing conditions of hypertension and hyperlipidemia. 3. The evidence does not establish that the Veteran's non-ischemic cardiomyopathy, COPD or hypertension was incurred during his active military service or is otherwise related thereto, to include exposure to herbicide agents or other toxins or harmful chemicals. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C. §§ 1110, 1112, 1310, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In general, the appellant contends that the Veteran was exposed to Agent Orange and other toxins and harmful chemicals during his active military service that caused or contributed to his death. The Veteran died in September 2009. According to his death certificate, the immediate cause of death was cardiopulmonary failure due to non-ischemic cardiomyopathy and COPD. Other significant conditions listed were hypertension and hyperlipidemia. Primarily, the appellant contends that service connection for the cause of the Veteran's death - non-ischemic cardiomyopathy, COPD and/or hypertension - is warranted based upon the presumption of exposure to herbicides such as Agent Orange. She contends that the Veteran was exposed to herbicides either from being stationed in Okinawa or from being in the Republic of Vietnam during flights he took as a Crew Chief with the Marine Heavy Helicopter Squadron-462 (HMH-462), 3rd Marine Aircraft Group, 1st Marine Aircraft Wing while he was stationed in Okinawa. She has also recently alleged that the Veteran was missing from January to April of 1971 (based, it appears, on a statement in a VA document that he did not joint his unit until April 1971) and that he was in Vietnam during this period of time, maybe on TDY (temporary duty) and involved in "Operation Mixmaster." Alternatively, she contends that service connection for the cause of the Veteran's death is warranted as related to exposure to various toxins and hazardous chemicals he was exposed to during service as a helicopter mechanic and crew chief. She specifically has alleged that the Veteran's death could have been related to driers added to oil-based paints used on aircraft the Veteran worked on in service and submitted documentation that these driers contain cobalt, manganese and lead, and that these substances may be related to cardiomyopathy, chronic obstructive pulmonary disease and hypertension. She also contends that the Veteran was exposed to chemicals/toxins such as PCE, TCE and DCE while stationed at MCAS Tustin and El Toro from November 1968 to December 1970. She argues that El Toro is on the Superfund list and MCAS Tustin is just across the 405 freeway and, therefore, they shared the same groundwater. She claims that El Toro and Tustin were both closed in 1999 due to toxins on the bases. In May 2016, the Board remanded to obtain information from the EPA regarding the contamination at these two bases. Such information was associated with the claims file in July 2016. In addition, the Board remanded to correct deficiencies in the VA treatment records and previous medical opinions obtained. The missing VA treatment records were associated with the claims file in May 2016. A new and adequate medical opinion was obtained in August 2016. Consequently, the Board finds that the requested development has been completed and the Board may proceed to adjudicate the appellant's claim. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163 (Fed.Cir.2004); Hickson v. West, 12 Vet. App. 247 (1999). For chronic diseases listed in 38 C.F.R. § 3.309(a) the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir. 2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue, unless there is affirmative evidence to establish that the disease is due to an intercurrent injury or disease. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.307(d)(1), 3.309(e). A veteran who served in the Republic of Vietnam during the Vietnam era 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 U.S.C. § 1116(f). Diseases associated with such exposure include: AL amyloidosis; chloracne or other acneform diseases consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) Note 1; 75 Fed. Reg. 53,202 (August 31, 2010). For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note 2. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994). See also 61 Fed. Reg. 41,442, 41,449 and 57,586, 57,589 (1996). A list of specific conditions not having a positive association has been published by the Secretary. See Notice, 79 Fed. Reg. 20,308 (April 11, 2014). For presumptive service connection to be warranted, generally, the herbicide-related disease shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). VA General Counsel has determined that the regulatory definition of "service in the Republic of Vietnam" in 38 C.F.R. § 3.307(a)(6)(iii), requires that an individual actually have been present within the boundaries of the Republic of Vietnam to be considered to have served there, through inclusion of the requirement for duty or visitation in the Republic of Vietnam. VAOPGCPREC 27-97. 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Presumptive Service Connection Based Upon Exposure to Herbicide Agents in the Republic of Vietnam The preponderance of the evidence is against the appellant's claim as the evidence neither supports that the Veteran served in the Republic of Vietnam nor that he died of a presumptive disease. The Board acknowledges the evidence the appellant has submitted in support of her claim and her belief that the Veteran was in Vietnam. However, the Veteran's contemporaneous service records fail to support such a contention. His service personnel records show he arrived at the Kadena Air Force Base, which is in Okinawa, at the end of January 1971 and that he stayed there until he left in December 1971. There is nothing in his records to demonstrate that he left Okinawa on official travel. Upon arriving, he was assigned to the HMH-462, MAG-36, 1st MAW, FMFPac. The Board acknowledges that there appears to be a lapse in records for the month of February and part of March indicating what the Veteran was doing during that time. However, a March 23, 1971 notation in his personnel record indicating that he just completed NATOPS evaluation for the CH-52A/D as a Crew Chief. Thus, the Board is not convinced the Veteran was "missing" like the appellant has asserted. However, the appellant's belief that the Veteran was "missing" from the end of January 1971 until April 1971 appears to be based on a statement by VA that he did not report to his unit until April 1971. The Board can only conclude that such statement was made in error as it does not find anything in the records to conclude that he did not report to his unit upon arriving in Okinawa at the end of January 1971. In fact, his Record of Service shows he started with the HMH-462, MAG-36, 1st MAW (R) FMFPac on February 2, 1971. Thus, the Board finds it unlikely that the Veteran was on TDY to Vietnam during this period of time and more likely he was just not flying until he passed his NAVTOPS evaluation in March. Furthermore, although the company records for the division the Veteran served in appear to indicate the 1st MAW flew in support of operations conducted in Vietnam, these records do not specify what each unit was doing. Instead, the history for the Veteran's specific unit, HMH-462, MAG-36, states that, after being transferred to Okinawa in October 1969, it flew support for Marine troops in Japan. This statement directly contradicts the appellant's contention that the Veteran flew in helicopters to Vietnam. Because of this evidence, the Board finds the remainder of the appellant's evidence merely circumstantial evidence that does not give rise to establishing equipoise. The pictures she has submitted are without an appropriate foundation to establish how she has personal knowledge of what each picture shows. As for the Veteran's flight records and the contentions regarding the flight codes shown therein, the Board acknowledges that the document the appellant submitted interpreting these codes appears to indicate that one of the codes the Veteran used could indicate that he was involved in flights for the purpose of "troop lift into, out of, or over an area where enemy fire is received or can reasonably be expected." However, this document also clearly indicates that the codes have changed and cautions to "[b]e careful relating this document to our codes but may be helpful in breaking the code." In addition, the Board is not sure of the source of this document although it does state where the author obtained the flight codes from. Given the uncertainty of the document source and the caution given in applying it, the Board does not find this evidence to be sufficiently reliable to assist the appellant in establishing the Veteran had service in Vietnam. Again, at most, such evidence is circumstantial without providing any solid evidence to show that it was at least 50 percent likely that the Veteran had service in the Republic of Vietnam. Nevertheless, even if he did, the Board finds that his death was not the result of a presumptive disease found to be related to exposure to herbicide agents. Clearly COPD and hypertension are not included on the list. The Board notes that the Veteran's representative stated in its recent VA Form 646 that hypertension is now proposed to be a presumptive disease related to Agent Orange exposure. However, VA has not issued a final regulation in the Federal Register to add hypertension to the list of presumptive Agent Orange diseases. Also, although respiratory cancers are enumerated presumptive Agent Orange diseases, respiratory disorders such as asthma and COPD are not on the list of diseases related to herbicide agent exposure. The appellant's main contention is that the Veteran's non-ischemic cardiomyopathy should be presumptively service-connected. However, only ischemic heart disease has been recognized as being related to exposure to herbicide agents. By its very name, the Veteran's non-ischemic cardiomyopathy is clearly not an ischemic heart disease. There is nothing in the medical evidence to suggest that the Veteran's cardiomyopathy was anything but non-ischemic. It was diagnosed as such on initial diagnosis in October 1997 and it continued to be so diagnosed by VA Cardiology on consultation in August 2008 (the last one before his death). The RO obtained a new medical opinion in August 2016 as requested by the Board. After reviewing the entire claims file, the VA clinician stated that the Veteran did not have an ischemic heart condition and his dilated non-ischemic cardiomyopathy is not considered a presumptive condition related to potential Agent Orange exposure. Consequently, based upon the foregoing, the Board finds that the preponderance of the evidence is against finding that presumptive service connection based upon exposure to herbicide agents in the Republic of Vietnam is warranted. Other Toxin or Hazardous Chemical Exposure The appellant has also claimed that the Veteran was exposed to Agent Orange during his service in Okinawa. VA has not recognized, for presumptive service connection purposes, that herbicide agents were used in Okinawa. Thus, the appellant must show the Veteran was actually exposed to herbicide agents during such service and that the there is a relationship between such exposure and the cause of his death in order to establish service connection. In the present case, the Board finds that the preponderance of the evidence fails to establish that the Veteran was exposed to herbicide agents during his service in Okinawa. Associated with the claims file is a May 2010 memorandum from the Department of Defense (DoD) regarding the use, storage or testing of tactical herbicides in Okinawa, or Taiwan or any Japanese Islands or the Philippines. This memorandum essentially states the DoD documentation does not show any use, testing or storage of tactical herbicides, such as Agent Orange, at any location on Okinawa, and recently acquired DoD monographs do not identify Okinawa as being associated with tactical herbicides. The appellant has not submitted any substantial evidence to contradict this DoD memorandum. Consequently, there is insufficient evidence to establish the Veteran was exposed to herbicide agents during his service in Okinawa and service connection is not warranted based on this theory of entitlement. The appellant also argues that the Veteran's death was the result of his exposure to toxins and harmful chemicals during service due to his being a helicopter mechanic and crew chief. She has specifically alleged that his non-ischemic cardiomyopathy, hypertension and COPD could have been related to driers added to oil-based paints used on aircraft the Veteran worked on, in addition to exposure to chemicals/toxins such as PCE, TCE and DCE while stationed at MCAS Tustin and El Toro from November 1968 to December 1970. Because of these allegations, the Board remanded her claim in May 2016 for medical opinions, which were obtained in August 2016. With regard to the Veteran's non-ischemic cardiomyopathy, the VA clinician opined that it is less likely as not that the Veteran's non-ischemic cardiomyopathy is related to any injury, disease or event incurred during his active military service. The VA clinician reviewed the major causes of non-ischemic cardiomyopathy and stated that ethanol (alcohol) is listed as a main toxin and cause of cardiomyopathy, and a typical finding in patients with alcoholic cardiomyopathy is left ventricular dilation with reduced ejection fraction. (Causes of dilated cardiomyopathy, Weigner, Marilyn, M.D., Moran, James, M.D., UpToDate 5 Jan 2016). The clinician noted that the Veteran's October 1997 diagnosing echocardiogram revealed a dilated left ventricle and an ejection fraction of 25 to 30 percent. He further remarked on the notations in the Veteran's VA treatment records from November 1997 to August 2008 regarding his history of alcohol use, that toxic (e.g. ETOH - alcohol related) cardiomyopathy was listed in the differentials for the etiology of his heart condition in the October 1997 medical records, and that October 2001 and June 2002 notes specify a history of "heavy drinking before." Thus, the clinician opined that the October 1997 echocardiogram findings, along with the reports of alcohol use, substantiate that the Veteran's heart condition was "likely alcohol related, non-ischemic dilated cardiomyopathy." With regard to the allegation of exposure to toxins or chemicals in service, the clinician noted that the Veteran first presented with symptoms of a four-day occipital basal neck headache, shortness of breath and upper chest pain in October 1997 (almost 26 years post-service) and was admitted and diagnosed with dilated cardiomyopathy. The clinician noted that "it would be expected that the Veteran would have presented with symptoms of dilated non-ischemic cardiomyopathy prior to 26 years post potential in-service toxin exposure." The clinician explained that "[d]ilated non-ischemic cardiomyopathy is a serious heart muscle disease with a significant contribution to morbidity and mortality, and symptoms would not be silent for more than two and a half decades and allow the Veteran to be able to perform in his usual occupation in automobile repair/ rebuilding, as listed on [his] Death Certificate." With regard to the Veteran's hypertension, the VA clinician noted that there is no evidence in the service treatment records that the Veteran had hypertension in service. He also remarked that the Veteran did not exhibit hypertension until several years after the alleged exposure in service with the first documented evidence of hypertension in September 2006. He stated that he could find no medical literature or evidence to support finding that the Veteran sustained hypertension related to the alleged toxin exposure during service. He further stated that there is no post-service medical record evidence of a nexus between the claimed in-service exposure and the Veteran's hypertension. Thus, he opined that it is less likely than not that the Veteran's hypertension was related to his military service. Finally, with regard to the Veteran's COPD, the VA clinician reviewed the medical research regarding occupational hazards during auto body repair, concluding that auto body workers may develop respiratory sensitization and reduced lung function from exposures to paint, citing to DHHS (NIOSH) Publication Numbers 96-105, 96, 106, 1996. He reviewed the service treatment records but did not find evidence that the Veteran had COPD in service. He also reviewed the evidence from the EPA of environmental contamination found at MCAS El Toro and Tustin. Although acknowledging the appellant's report that the Veteran used a respirator post-service, but not during service, he commented that there is no medical evidence to support this. Additionally, the clinician noted that the Veteran did not exhibit COPD until several years after the alleged exposure in service. The first VA documented evidence of COPD was in June 2005. As such, the clinician opined it is less likely than not that the Veteran's COPD was related to his military service. The Board finds the foregoing medical opinions to be highly relevant to the question of whether the Veteran's non-ischemic cardiomyopathy, hypertension and/or COPD were related to his active military service as these opinions are clearly based upon a review of the record and supported with sound rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The appellant has not submitted any opposing medical opinions but relies solely on her own testimony relating the Veteran's non-ischemic cardiomyopathy, hypertension and COPD to his military service. When considering lay evidence concerning service connection, the Board must determine, on a case-to-case basis, whether the particular disability is the type of disability for which lay evidence is competent; and if it is, the Board must weigh that evidence against the other evidence of record in making its determinations regarding the existence of service connection. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board finds, however, that the disabilities at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1372. Consequently, the appellant's lay statements relating the cause of the Veteran's death to his military service are afforded no probative weight. After considering all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for the cause of the Veteran's death is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for cause of the Veteran's death is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs