Citation Nr: 18143014 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 12-00 116 DATE: October 17, 2018 ORDER Service connection for the cause of the Veteran’s death, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran died in January 2009. The cause of his death was large B-cell lymphoma and graft versus host disease. 2. At the time of his death, the Veteran was service connected for posttraumatic stress disorder (PTSD), bilateral hearing loss, and tinnitus. 3. The evidence does not establish that the Veteran was exposed to herbicide agents during service. 4. The Veteran’s cause of death is not shown to be related to service or a service-connected disability. CONCLUSION OF LAW The criteria for an award of service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1116, 1131, 1154, 1310 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the U.S. Army from March 1964 to March 1967, to include service in the Dominican Republic. His decorations included the Parachute Badge and the Combat Infantryman’s Badge. He died in January 2009. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In her December 2011 substantive appeal, the appellant indicated that she wanted to appear at a Board hearing. However, she withdrew that request in correspondence received in February 2012. 38 C.F.R. § 20.704(e). In September 2015, the Board remanded the matter on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Entitlement to service connection for the cause of the Veteran's death. 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). VA regulations provide that service connection is warranted for certain diseases as presumptively due to exposure to herbicide agents. 38 C.F.R. § 3.309(e). Large B-cell lymphoma (a type of non-Hodgkin’s lymphoma) is included in the list of such diseases. To establish entitlement to service connection for the cause of a veteran’s death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. The appellant maintains that the Veteran’s death was related to in-service exposure to herbicide agents. She says that he used to make jumps from some of the C-130 aircraft that sprayed dioxin; that he served in numerous places in Latin America where dioxin was used; and that she and the Veteran had a baby girl who passed away at the age of two months as an indirect result of a birth defect which is known to be related to Agent Orange exposure. She also maintains that his service-connected disabilities contributed substantially and materially to his death by virtue of the stress they caused. The evidence reflects that the Veteran died in January 2009. The cause of his death was large B-cell lymphoma and graft versus host disease. See January 2009 Florida Certificate of Death. At the time of death, the Veteran was service-connected for PTSD, bilateral hearing loss, and tinnitus. After reviewing all the lay and medical evidence, including the appellant’s statements, the Board finds that the weight of the evidence is against a finding that the Veteran was exposed to herbicide agents during service. Simply put, the record does not contain any credible and competent evidence of such exposure. None of the evidence reflects that the Veteran ever asserted such exposure during his lifetime, to include during any period of combat. See 38 U.S.C. § 1154(b). In July 2009, the service department indicated that there were no records of such exposure. A September 2017 response from the Defense Personnel Records Imaging Retrieval System (DPRIS) indicates that available records do not mention the use, storage, spraying, testing, or transporting of any herbicides, to include Agent Orange, in the Dominican Republic during the period from April to May 1965. Other information from the service department reflects that there is no scientific evidence available to VA which shows that being in the vicinity of aircraft or equipment previously used in Vietnam can be considered as exposure to active Agent Orange or can result in long-term health effects. In an October 2018 brief, the appellant’s representative cited two articles in support of the appellant’s appeal. The representative did not submit the articles into evidence, however. Moreover, the representative descriptions of the articles do not appear to provide any direct support for the current appeal. The representative has indicated that one article shows that the United States’ use of chemical and biological weapons has been associated with a list of nations since World War II, to include the Dominican Republic during the time the Veteran was there; and that the other article shows that C-130s were used to transport food and supplies to the Dominican Republic during the Veteran’s tour of service. Neither is described as demonstrating that the Veteran himself came into contact with herbicide agents during service. Absent competent and probative evidence of exposure to herbicide agents, service connection for the cause of the Veteran’s death cannot be granted on a presumptive basis. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection for the cause of the Veteran’s death could also theoretically be established by evidence of direct causation. However, the appellant does not allege that the Veteran developed lymphoma or graft versus host disease during service. Moreover, the competent evidence of record does not otherwise link Veteran’s fatal disease processes to service or a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Board is sympathetic to the appellant’s position and is grateful for the Veteran’s honorable service. However, based on the record before it, the Board must conclude that evidence in this case has not reached the level of equipoise. 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits . . . .”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). As the preponderance of the evidence is against the claim, the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trickey, Jonathan