Citation Nr: 18140692 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 14-04 675 DATE: ORDER Entitlement to service connection for cause of death is denied. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. §§ 1318 or 1151 is denied. FINDINGS OF FACT 1. The Veteran’s record placed him at Royal Thai Air Force Base Korat from May 1969 to January 1970, but his records do not indicate duties at or near the air base perimeter which subjected him to exposure to herbicide agents, and thus there is no presumption that he was exposed to herbicide agents while serving on active duty. 2. The Veteran died in June 2003. The immediate cause of death listed on his death certificate is coronary atherosclerosis and the other listed significant condition contributing to death is diabetes mellitus. 3. At the time of his death, the Veteran was not service connected for any disabilities. 4. The preponderance of the evidence shows that the Veteran’s coronary atherosclerosis and diabetes mellitus did not manifest in service, or until many years thereafter, and is not related to service or to an incident of service origin. 5. The Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding his death, nor was he rated totally disabled continuously since his release from active duty and for at least 5 years immediately preceding death, nor was he a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The Veteran’s coronary atherosclerosis and diabetes mellitus were not incurred as a result of active duty service, nor may the disorders be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1113, 1116, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1101, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2017). 3. The criteria for entitlement to DIC under 38 U.S.C. §§ 1318 or 1151 have not been met. 38 U.S.C. §§ 1318, 1151 (2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from June 1946 to April 1948 and in the United States Air Force from January 1952 to January 1970. He died on June [redacted], 2003. The appellant in this appeal is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA) Pension Management Center in Philadelphia, Pennsylvania. In July 2015, the appellant testified at a travel board hearing held at the Regional Office (RO) before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran’s claims file. The Board remanded the issue on appeal for additional development in September 2015. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that VA law and regulation pursuant to substitution are not available to the Veteran’s survivors, including the appellant, because he passed away prior to October 10, 2008, the effective date of the implementing regulations for substitution. See 38 C.F.R. §§ 38.1010(a); 20.1302(a). Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5109 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). For a claim of service connection for the cause of the Veteran’s death, 38 U.S.C. § 5103 (a) notice must be tailored to the claim. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev’d on other grounds sub nom. Hupp v. Shinseki, 329 F. App’x 277 (Fed. Cir. 2009). The notice should include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App at 352-53. In the instant case, VA’s duty to notify was satisfied by VCAA letters dated August 2009 and July 2012. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Here, the appellant was provided with the relevant notice and information in the August 2009 and July 2012 letters. The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore any notice error was harmless). VA also satisfied its duty to assist the development of the claims. This duty includes assisting the appellant in the procurement of pertinent medical records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The claims file contains the Veteran’s service treatment records (STRs), private treatment records, and lay statements from the appellant. Here, the appellant has not identified any additional, relevant, available evidence. Therefore, the Board concludes that VA has made reasonable efforts to obtain all records relevant to the claims. Neither the appellant nor her representative has advanced any additional procedural arguments in relation to VA’s duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that “absent extraordinary circumstances…we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran…”). As VA satisfied its duties to notify and assist, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. §§ 5103, 5103A, or 38 C.F.R. § 3.159, and that the appellant will not be prejudiced as a result of the Board’s adjudication of her claims. Service Connection for Cause of Death Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307(d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The diseases associated with herbicide exposure for purposes of the presumption include diabetes mellitus type 2, also known as adult-onset diabetes mellitus, and ischemic heart disease. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309 (e); see 78 Fed. Reg. 54763 (Sept. 6, 2013). If the veteran was exposed to an herbicide agent (to include Agent Orange) during active service, diabetes mellitus or ischemic heart disease shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. In May 2010, VA published a Compensation & Pension (C&P) Service Bulletin that established “New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea.” In explaining the need for the new procedures, the bulletin acknowledged that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. In August 2015, the M21-1MR manual provisions relating to claimed herbicide exposure in Thailand were rescinded and replaced with new M21-1 provisions, and were thereafter subject to additional revision. The current version of M21-1, Part IV., Subpart ii., Chapter 1., Section H., Topic 5., paragraph b., provides that for veterans who served during the Vietnam Era in the U.S. Air Force in Thailand at one of the listed Royal Thai Air Force Bases (RTAFBs), including Korat, as a security policeman, security patrol dog handler, member of the security police squadron, or “otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence,... concede herbicide exposure on a direct/facts-found basis.” (Emphasis added). This allows for presumptive service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection for Cause of Death Service connection for the cause of a Veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran’s death. 38 C.F.R. § 3.312(a). To establish service connection for the cause of a Veteran’s death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. A service-connected disability will be considered as the principal, or primary, cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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. 38 C.F.R. § 3.312(c)(1); Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The key question in this case is whether the late Veteran is entitled to a presumption of exposure to herbicide agents, including Agent Orange, based on service in Thailand during the Vietnam era. If so, service connection for his diagnosed coronary atherosclerosis and diabetes mellitus may be granted on the basis that each disease is presumed to be the result of in-service herbicide agent exposure. This case was previously remanded to seek records that would place the Veteran in areas where presumptive exposure to herbicide agents during his active service, to include the Vietnam era, but only service in Thailand was noted in the Veteran’s record during the appropriate period that may qualify him. Service in Vietnam itself or Korea was not noted in the Veteran’s records and therefore those areas will not be considered in the analysis. Evidence and Analysis The appellant seeks service connection for cause of death for her late husband, the Veteran in this case, who attributes his diabetes mellitus and coronary atherosclerosis to exposure to herbicide agents while stationed at Royal Thai Air Force Base (RTAFB) Korat from May 1969 to January 1970, as well as other possible avenues of exposure. The appellant asserted in lay statements and in testimony with the undersigned Veterans Law Judge that her husband’s position as a U.S. Air Force maintenance supervisor and later superintendent would have placed him at RTAFB Korat in the vicinity of their runway and aircraft parking ramp. Regarding the Veteran’s Thailand service, the Board notes the presence of service personnel records, to include personnel orders and travel vouchers that place the Veteran at RTAFB Korat from May 1969 to January 1970. Records, to include personnel evaluations, indicate the Veteran was an Air Force maintenance supervisor and later superintendent in the rank of chief master sergeant, per his Air Force Specialty Code, that service’s equivalent of MOS (military occupational specialty), assigned to the 388th Tactical Fighter Wing there at Korat. Descriptions of his duties found in the Veteran’s personnel evaluations during his assignment to Korat indicate that he was a maintenance supervisor focused on aircraft engines. The Board finds the evidence of the Veteran’s service at RTAFB Korat to be competent and credible. However, the Board also notes that the Veteran was a senior enlisted maintenance supervisor and was not assigned to or performed any aspect of security around the base perimeter. Furthermore, the Veteran’s records do not place him near the Korat base perimeter on any regular or periodic basis. Therefore, the Board finds that the Veteran’s duties did not bring him near the base perimeter, failing to satisfy the guidance found in the M21-1MR: “near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence.” (Emphasis added). On this evidence, the Board cannot concede herbicide exposure on a facts-found basis and consistent with the policy outlined in M21-1MR IV.ii.1.H.5.b. The Board thus finds that Veteran served at RTAFB Korat during the time claimed but did not serve in security duties or any other duty in or near the base perimeter, and therefore cannot be considered to have been exposed to herbicide agents for the purposes of VA laws and regulations for his Thailand service. The Board thus cannot concede exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § § 3.307(a), 3.309(e). The Veteran’s records do not indicate any other possible method of exposure to herbicide agents during the Veteran’s entire period of active service. As noted previously, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. Here, the Veteran has been diagnosed with coronary atherosclerosis and diabetes mellitus by private medical providers. This diagnosis satisfies the requirement of a current disability in the Veteran’s claim for service connection. The appellant’s representative testified that those conditions began approximately 9 years prior to the Veteran’s death, which would place that in 1994, 24 years after the end of the Veteran’s active service. Service connection could still be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To that end, the Board has considered whether there is otherwise a direct link between the Veteran’s diabetes mellitus or coronary atherosclerosis and active service. His service treatment records make no mention of diabetes or any cardiovascular disease, ischemic or not, and he or his appellant have also not alleged that his diabetes mellitus or coronary atherosclerosis had an onset in service. The record first notes a diagnosis of diabetes mellitus and cardiovascular disorders in 1994 -- some 24 years after his separation from active duty service and well outside of the period for presumptive service connection for diabetes mellitus as a chronic disease manifested to a compensable degree within the first post-service year. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Moreover, there is no probative medical evidence or medical opinion suggesting that there may be an association between diabetes mellitus or coronary atherosclerosis and any incident of the Veteran’s service. The remainder of the Veteran’s treatment records reflecting a diagnosis of diabetes mellitus or coronary atherosclerosis include no comment or opinion relating the diagnosis of diabetes mellitus or coronary atherosclerosis to service. Although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case, diabetes mellitus and coronary atherosclerosis, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Diagnosing diabetes mellitus and/or coronary atherosclerosis requires specialized training and medical diagnostic testing for a determination as to diagnosis and causation, and is not susceptible of lay opinions on etiology. Therefore, the Board finds that the appellant’s and other lay statements of record cannot be accepted as competent evidence sufficient to establish service connection for diabetes, to include Type II diabetes mellitus, or coronary atherosclerosis. Therefore, while the Board acknowledges that the Veteran was diagnosed with diabetes mellitus and coronary atherosclerosis at the time of his death, there is no indication of any diagnosis during service or within the one-year period thereafter. In addition, after considering the length of time between service and post-service diagnosis and determining that the Veteran does not meet the requirements for any relevant presumptions, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for diabetes mellitus or coronary atherosclerosis as cause of death. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to DIC DIC benefits are monetary benefits that may be paid to a deceased Veteran’s surviving spouse, child, and parent. 38 U.S.C. § 101(14). Each type of eligible claimant is specifically defined. A surviving spouse is a person who: (1) was the spouse of the Veteran at the time of the Veteran’s death; (2) lived with the Veteran continuously from the date of marriage to the date of the Veteran’s death; and, (3) has not remarried or, since the death of the Veteran and after September 19, 1962, lived with another person and held themselves out openly to the public as the spouse of another person. 38 U.S.C. § 101(3). The Board notes that the eligibility of the appellant, as the Veteran’s surviving spouse, has already been adjudicated by the AOJ and is therefore potentially eligible for DIC. See 38 C.F.R. § 3.104. There are three main theories of entitlement to DIC benefits: (1) benefits awarded pursuant to 38 U.S.C. § 1310; (2) benefits awarded pursuant to 38 U.S.C. § 1318; and, (3) benefits awarded pursuant to 38 U.S.C. § 1151. Unless specifically limited by a claimant, the Board is required to consider all theories of entitlement to DIC benefits. See 38 C.F.R. § 3.152(a), (b)(1). As such, a generic claim for DIC benefits encompasses all three theories of entitlement listed above. See, e.g., Stoner v. Brown, 5 Vet. App. 488, 491 (1993). DIC benefits under 38 U.S.C. § 1310 were already discussed above as service connection for cause of death. DIC Benefits under 38 U.S.C. § 1318 Entitlement under 38 U.S.C. § 1318 allows for the award of DIC for nonservice-connected deaths of Veterans rated as totally disabled. 38 U.S.C. § 1318; 38 C.F.R. § 3.22(a). Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased Veteran’s surviving spouse in the same manner as if the Veteran’s death is service-connected, even though the Veteran died of non-service-connected causes, if the Veteran’s death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the Veteran’s release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former POW who died after September 30, 1999. The total rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318; see Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). At the time of the Veteran’s death, the Veteran was not service connected for any disability. He was not receiving total disability compensation, and was not entitled to a total disability rating within the language of 38 C.F.R. § 3.22(b). It is undisputed that the Veteran was not a former POW and, therefore, the requirements of 38 U.S.C. § 1318 has not been satisfied. As such, entitlement to DIC under 38 U.S.C. § 1318 is not warranted. DIC Benefits under 38 U.S.C. § 1151 Entitlement to DIC benefits may be established under 38 U.S.C. § 1151. On a basic level, in order to establish entitlement to DIC benefits under 38 U.S.C. § 1151, an appellant must show that the Veteran’s death: was caused by treatment or examination furnished by VA; and either, the proximate cause of death was carelessness, negligence, lack of skill, error in judgement, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. Here, the Veteran has not ever received VA medical care, and as such, entitlement to DIC benefits pursuant to 38 U.S.C. § 1151 is not warranted. (CONTINUED ON NEXT PAGE) Accordingly, the criteria for establishing DIC under 38 U.S.C. §§ 1318 or 1151 have not been met, and the DIC claim under those two sections is denied as a matter of law. Where the law is dispositive, the claim must be denied on the basis of absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Finally, the Board is truly mindful of the Veteran’s very distinguished and lengthy honorable service to our nation, as well as the great loss which has been suffered by the appellant. We are, however, restricted to the application of the law to the evidence, and unfortunately, we are unable to grant the benefit sought in this very compelling case. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel