Citation Nr: 18148115 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 18-19 213 DATE: November 7, 2018 ORDER Service connection for cause of the Veteran’s death is granted. The appeal seeking entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318 is dismissed. The appeal seeking entitlement to death pension benefits is dismissed. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The cause of the Veteran’s death was kidney cancer. 2. The Veteran is presumed to have been exposed to herbicides during service. 3. Resolving all reasonable doubt in favor of the appellant, the Veteran’s kidney cancer was causally or etiologically due to exposure to herbicides during service. 4. DIC based on service connection for the cause of the Veteran’s death is a greater benefit than DIC based on section 1318; therefore, the latter claim is moot. 5. The award of service connection for the cause of the Veteran’s death in the present decision renders the appellant’s death pension claim moot. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran’s cause of death have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1310, 5103, 5103A, 5107 (2012), 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2017). 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). 3. The claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed. 38 U.S.C. §§ 1318, 7104 (2012); 38 C.F.R. § 3.22 (2017). 4. The claim for entitlement to death pension benefits is dismissed. 38 U.S.C. § 1541 (2012); 38 C.F.R. § 3.3 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who had active service from September 1959 to May 1960 and from April 1963 to October 1979, died in June 2013. His service personnel records reflect that he served as a radio operator. The appellant is his surviving spouse. 1. Entitlement to service connection for cause of the Veteran’s death Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5 (2017). Service connection will be granted for a disability if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To warrant service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered as the principal (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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. For the purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a Veteran who, during active military, naval or air service, served in the Republic of Vietnam between January 1962 and May 1975 shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran’s service records show he served in Vietnam from December 1965 to November 1966. Therefore, the Veteran is presumed to have been exposed to herbicides. The Secretary of Veterans Affairs (Secretary) has determined that there is a presumptive positive association between exposure to herbicides and the disorders listed in 38 C.F.R. § 3.309(e). The diseases presumptively associated with herbicide exposure are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes, Hodgkin’s disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). The Veteran’s death certificate reflects that he died from liver metastases secondary to kidney cancer and that lung metastases were a contributory cause of death. At the time of his death, the Veteran was service connected only for lumbar spine degenerative spurring and high frequency hearing loss. Although kidney cancer is not a listed presumptive disease associated with herbicide exposure, service connection can still be established on a direct basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007). In support of her claim, the appellant submitted a medical opinion from an occupational and environmental physician. The doctor reviewed the Veteran’s claims folder and opined that the Veteran’s kidney cancer was at least as likely as not caused by his exposure to herbicide in service combined with exposure to polychlorinated biphenyl (PCBs) during his career as a communications specialist. The doctor explained that PCBs are considered dioxin-like compounds and both dioxins and tetrachlorodibenzoparadioxin (TCDD), found in Agent Orange, are cancer promoters. The doctor stated that based on epidemoiologic and toxiocologic evidence, it can be opined that TCDD causes many cancers in many locations, including the kidney and renal pelvis. The doctor noted that cigarette smoking, obesity, hypertension, and related medications have been implicated as risk factors in the development of renal cell carcinoma. Of those risk factors, the Veteran had only mild, well-controlled hypertension. The doctor discussed that a pilot study at the Overton-Brooks VA Medical Center showed a link between exposure to Agent Orange and renal cell carcinoma, although it was not conducted in the necessary fashion to provide statistically significant epidemiologic outcomes. The doctor also noted that an epidemiological meta-analysis of mortality data indicated that the pooled standardized mortality ratio for kidney cancer and exposure to Agent Orange was 1.39. Accordingly, although the Secretary has not determined that a sufficient basis exists to provide service connection for renal cell cancer on a presumptive basis based on exposure to herbicides during service, the Board find that the opinion by the private doctor is sufficient to place the issue of service connection in relative equipoise with respect to this specific Veteran. Resolving reasonable doubt in the Veteran’s favor; service connection for the cause of death, as due to exposure to herbicides, is therefore warranted. 2. Entitlement to DIC benefits under 38 U.S.C. § 1318 In light of the grant of benefits described above, the appellant’s DIC claim under 38 U.S.C. § 1318 is rendered moot. In that regard, entitlement to VA benefits under 38 U.S.C. § 1310 is the greater benefit, see Moffitt v. Brown, 10 Vet. App. 214, 224 (1997), and it has been granted in full. Therefore, no additional benefit (monetary or otherwise) can be gained under 38 U.S.C. § 1318, nor does any controversy remain. See Hornick v. Shinseki, 24 Vet. App. 50, 53-57 (2010); Timberlake v. Gober, 14 Vet. App. 122 (2000). Furthermore, the United States Court of Appeals for Veterans Claims has indicated that VA is required to also consider an appellant’s claim under the provisions of 38 U.S.C. § 1318 only if a claim for service connection for the cause of the Veteran’s death is denied under 38 U.S.C. § 1310. See Timberlake, 14 Vet. App. at 134-35. For the foregoing reasons, the claim for entitlement to DIC under 38 U.S.C. § 1318 is dismissed. 3. Entitlement to death pension benefits Death pension is available to the surviving spouse of a veteran because of his/her nonservice-connected death, as long as the veteran served for the required period of time during wartime, subject to certain income limitations. 38 U.S.C. §§ 101, 1521(j), 1541 (2012); 38 C.F.R. §§ 3.3(b)(4), 3.23(a)(5), (d)(5) (2017). A threshold consideration for entitlement to any type of death pension is that the veteran’s death is found to be nonservice-connected. 38 C.F.R. § 3.3 (b)(4). In the present case, service connection for the cause of the Veteran’s death has been granted. The grant of service connection for the cause of the Veteran’s death provides the greater award. 38 U.S.C. §§ 1311, 1541 (2012). In light of the grant service connection for the cause of the Veteran’s death, the claim of entitlement to death pension benefits under 38 U.S.C. § 1541 is moot, and the claim is therefore dismissed. 4. Entitlement to accrued benefits Accrued benefits are periodic monetary benefits (other than insurance and servicemen’s indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). While an accrued benefits claim is separate from a veteran’s claim filed prior to death, the accrued benefits claim is derivative of the veteran’s claim; thus, an appellant takes the veteran’s claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). For entitlement to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998); Taylor v. Nicholson, 21 Vet. App. 126, 128-29 (2007). (Continued on the next page)   The Board has reviewed the Veteran’s claims file, but does not find that he had a pending claim for benefits at the time of his death or has any benefits that were due but unpaid. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Christensen