Citation Nr: 18142993 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-12 795 DATE: October 17, 2018 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran’s death is denied. The appeal for nonservice-connected death pension benefits, having been withdrawn, is dismissed. FINDINGS OF FACT 1. The Veteran died in March 2009; the appellant is the Veteran’s surviving spouse. 2. At the time of death, the Veteran was not service connected for any disabilities. 3. The Veteran’s death certificate lists the cause of death as hypertrophic cardiomyopathy (a cardiovascular disability). 4. The Veteran was not presumptively exposed to herbicides during active service, and was not actually exposed to herbicides during service. 5. The Veteran’s terminal cardiovascular disability did not start in service, and is not otherwise related to service. 6. Symptoms of cardiovascular disease were not chronic in service, continuous after service, or manifest to a degree of 10 percent within one year of service separation. 7. At the May 2018 Board hearing, before a Board decision was issued, the appellant expressed the desire to withdraw the appeal for nonservice-connected death pension benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1103, 1110, 1112, 1116, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2017). 2. The criteria for the withdrawal of the substantive appeal as to the issue of entitlement to nonservice-connected death pensions benefits are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to June 1967. The Veteran died in March 2009. The appellant is the Veteran’s surviving spouse. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Roanoke, Virginia, RO has jurisdiction of the current appeal. In May 2018, the appellant testified at a Board videoconference hearing from the RO in Roanoke, Virginia, before the undersigned Veterans Law Judge who was sitting in Washington, DC. A transcript of the hearing is of record. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). Such notice should also address VA’s practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable Agency of Original Jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev’d on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that, when adjudicating a claim for DIC (to include service connection for the cause of the veteran’s death), VA must perform a different analysis depending upon whether a veteran was service connected for a disability during his or her lifetime. The Court concluded that, in general, 38 U.S.C. § 5103 (a) notice for a DIC case must 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 claim for service connection for the cause of the veteran’s death based on a previously service-connected disability; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. With respect to the issue of service connection for the cause of the Veteran’s death, in this case, the appellant was provided notice in April 2013, prior to the initial adjudication of the claim in August 2013. The appellant was notified of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected, the evidence and information required to substantiate a DIC claim based on a previously service-connected disability, and VA and her respective duties for obtaining evidence; thus, the Board concludes that VA satisfied its duties to notify the appellant. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence with respect to the issue adjudicated herein. Specifically, the information and evidence that has been associated with the claims file includes the Veteran’s service treatment records (STRs), post-service VA and private treatment records, the May 2018 Board hearing transcript, and the appellant’s written statements. The Board finds that VA’s duty to assist in this case does not required VA to obtain a medical opinion with respect to the claim for service connection for the cause of the Veteran’s death. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, the appellant has only advanced that the Veteran’s terminal cardiovascular disease was caused by exposure to the herbicide Agent Orange during service, asserted to be during claimed service in Vietnam; however, as explained below, the Board finds that the Veteran was not in fact exposed to Agent Orange, or any other herbicide, during service. The appellant has not advanced, and the evidence of record does not convey, any other potential in-service injury, disease, or event to which the Veteran’s terminal heart disease may be related. As such, the Board concludes that a VA medical opinion is not necessary to render a decision on the issue of service connection for the cause of the Veteran’s death. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. 1. Service Connection for the Cause of the Veteran’s Death Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran’s death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Prior to his death, the Veteran was diagnosed with coronary artery disease, which is listed as a “chronic disease” under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. § 3.303 (b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii). “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). In order to establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin’s lymphoma, soft tissue sarcoma, Hodgkin’s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson’s disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309(e). The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). VA regulations specify that the last date on which 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 period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). VA’s Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). The appellant contends that service connection for the cause of the Veteran’s death is warranted because the Veteran’s terminal heart disease is related to in-service exposure to Agent Orange. See, e.g., May 2018 Board hearing transcript. The Veteran’s death certificate lists the cause of death as hypertrophic cardiomyopathy. At the time of the Veteran’s death, the Veteran was not service-connected for any disability. The Board finds that the Veteran was not presumptively exposed to herbicides during active service, and was not actually exposed to herbicides during service to warrant the presumption of service connection. DD Form 214 shows that the Veteran served on active duty in the United States Air Force from June 1963 to June 1967, and that the Veteran did not have any foreign and/or sea service during active service. DD Form 214 does not otherwise identify any service in the Republic of Vietnam, and no decorations, medals, or other awards indicating Vietnam service are identified. Service personnel records do not show any service in the Republic of Vietnam. A June 2013 VA Form 21-3101 reflects that a review of the Veteran’s service records showed no evidence to substantiate any service in Republic of Vietnam, and no record of exposure to herbicides. See also August 2014 VA memorandum (noting a formal finding of unavailability of evidence of herbicide exposure). The appellant has not otherwise identified any incidents of herbicide exposure by the Veteran in service, and no exposures were indicated by the Veteran during his life. At the May 2018 Board hearing, the appellant asserted that the Veteran related to her many years after service that he would go to Vietnam before the troops landed there, and would map the topography of the landing areas, as well as possible enemy locations. The Board finds that this assertion does not established in-country Vietnam service because it is inconsistent with, and outweighed by, the circumstances of service, official records, and other, more contemporaneous evidence. Specifically, the DD Form 214 reflects that the Veteran’s military occupational specialty (MOS) was an Air Force administrative clerk. Mapping topography of landing areas and possible enemy locations are not typical duties of an Air Force administrative clerk, and the service personnel records do not show any evidence of involvement in such duties, such as temporary duty assignments or temporary attachment to another unit. Accordingly, the Board finds that the duties described by the appellant are not consistent with the circumstances of the Veteran’s service. Moreover, when asked by the undersigned at the Board hearing as to whether the Veteran’s duties she described were performed physically on land or in an airplane, the appellant indicated that her understanding was that these duties were performed by the Veteran on land, but may have been in an airplane. Based on the foregoing, the Board finds that information from official sources more contemporaneous to service outweighs the appellant’s assertions, made pursuant to the current claim, and related to her many years after service, that the Veteran was in Vietnam to have been exposed to Agent Orange; thus, the Board finds that the appellant’s assertions of in-service Agent Orange exposure is outweighed by the other evidence of record. The Board finds that the weight of the evidence established no actual duty or visitation in the Republic of Vietnam, so does not support a finding that the Veteran was exposed to Agent Orange or other herbicides during active service. While no presumption of herbicide exposure has been satisfied, the claim must be reviewed to determine whether service connection can be established as directly incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Board finds that the weight of the lay and medical evidence demonstrates that the Veteran’s cause of death, hypertrophic cardiomyopathy, was not incurred in service, and is not otherwise etiologically related to active service. In this regard, the Board finds that the preponderance of the evidence is against a finding that the Veteran had a cardiovascular injury, disease, or event during service, including herbicide exposure, which could have subsequently resulted in terminal heart disease. Service treatment records show no complaints of, treatment for, or diagnosis of heart disease. A February 1966 service treatment record shows that the Veteran denied current symptoms and a history of heart trouble. The March 1967 service separation examination report shows a normal clinical evaluation of the heart and vascular system, and that the Veteran denied all significant medical history except for mumps, asymptomatic right myringotomy, and a stuffed up nose. In this regard, the Board is not relying on the absence of evidence, but on the contemporaneous evidence, including lay reports by the Veteran, showing that the Veteran did not have any symptoms of cardiovascular disease at service separation. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran’s failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The first post-service evidence of heart disease was in 2009, more than four decades after service separation. At that time, the Veteran gave a 30-plus year history of cardiac murmur and chest discomfort, but did not indicate that his cardiovascular symptoms started in service. As such, the approximate onset of cardiovascular symptoms was in the late 1970s. There is no indication from the treatment records that the Veteran had symptoms of cardiovascular disease until the late 1970s. As such, the Board finds that the weight of the evidence shows that the Veteran was not diagnosed with and/or treated for cardiovascular disease during service, and did not have symptoms of cardiovascular disease in service. Considering the evidence of record that the Veteran was diagnosed cardiovascular disease in the late 1970s, as the Veteran’s period of honorable service ended in June 1967, over 10 years after service separation, the evidence shows that the Veteran’s cardiovascular disease did not have its onset during service, or chronic symptoms in service, or that cardiovascular disease manifested to a compensable degree within one year of service separation. The Board next finds the weight of the evidence demonstrates that symptoms of cardiovascular disease have not been continuous since service separation in June 1967. As noted above, the Veteran was not treated for, or diagnosed with, cardiovascular disease in service, and was first diagnosed with cardiovascular disease over 10 years after service. The approximately 10-year period between service and the onset of cardiovascular disease is one factor, along with other factors in this case, that weighs against a finding of service incurrence, including by continuous symptoms since service from which service incurrence would be presumed. See Buchanan, 451 F.3d at 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). For these reasons, the Board finds that the preponderance of the evidence is against service connection for the Veteran’s cause of death. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the appellant’s claim. 2. Withdrawal of Appeal for Nonservice-connected Death Pension Benefits Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing or on record at a hearing at any time before the Board promulgates a decision. Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, on the record at the May 2018 Board hearing, the appellant withdrew the appeal for nonservice-connected death pension benefits; therefore, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal further with respect to this issue, and it is dismissed. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel