Citation Nr: 18148962 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 14-39 825 DATE: November 9, 2018 ORDER TO VACATE On May 20, 2018, the Board issued a decision granting the reopening of a previously denied claim for service connection for the cause of the Veteran’s death, denying entitlement to service connection for the Veteran’s cause of death and denying entitlement to VA death pension benefits. The Board of Veterans’ Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. In her July 2018 motion for reconsideration, the appellant claimed that the Veteran is entitled to the presumption of herbicide exposure as his transfer documents that showed his service in Vietnam were not considered. A review of the record shows that the Veteran was transferred from the U.S.S. Lipan to Da Nang, Vietnam for further transfer to Pearl Harbor on January 10, 1967. Accordingly, the May 20, 2018 Board decision is vacated. The decision below is written in consideration of the Veteran’s confirmed service in the Republic of Vietnam. ORDER Service connection for cause of the Veteran’s death is granted. Entitlement to Dependency and Indemnity Compensation (DIC) death pension benefits under 38 U.S.C. § 1318 is dismissed as moot. Entitlement to nonservice-connected death pension benefits under 38 U.S.C. § 1541 is dismissed as moot. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in December 2012 and the death certificate lists liver and lymph node metastases and Stage IV duodenal gastrointestinal stromal tumor as the immediate causes of death, with prostate cancer, among other diseases, as a significant condition contributing to death. 2. The Veteran’s service records document that he had a transfer from the U.S.S. Lipan to Da Nang, Vietnam for further transfer to Pearl Harbor on January 10, 1967. 3. At the time of the Veteran’s death, he suffered from prostate cancer and had service in the Republic of Vietnam. 4. The Veteran’s prostate cancer is presumed to be the result of his exposure to herbicides as a result of his service in the Republic of Vietnam during his period of service. 5. The Veteran’s prostate cancer is shown to have caused or contributed substantially or materially to cause his death. 6. This Board decision grants the appeal as to entitlement to service connection for the cause of the Veteran’s death under the provisions of 38 U.S.C. § 1310. 7. At the time of the Veteran’s death, there were no claims for benefits pending before VA. CONCLUSIONS OF LAW 1. The criteria for service connection for cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312. 2. The appellant’s claim for entitlement to death pension benefits under 38 U.S.C. § 1318 is dismissed as moot. 38 U.S.C. §§ 1318, 7104; 38 C.F.R. §§ 3.22, 20.101. 3. The appellant’s claim for entitlement to death pension benefits under 38 U.S.C. § 1318 is dismissed as moot. 38 U.S.C. §§ 101, 1541; 38 C.F.R. §§ 3.23, 3.3(b)(4), 20.101. 4. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 5101(a), 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1955 to April 1975, and as noted above is shown to have service in the Republic of Vietnam. The Veteran passed away in December 2012; the appellant in this case is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board reflects that although a notice of disagreement was not submitted in this case, the Agency of Original Jurisdiction (AOJ) accepted a March 2014 substantive appeal, VA Form 9, in lieu of a Notice of Disagreement, VA Form 21-0958. After the AOJ issued an October 2014 statement of the case, the appellant timely submitted a November 2014 substantive appeal, VA Form 9. As a final initial matter, in the May 2018 Board decision—which was vacated above—the Board characterized the cause of the Veteran’s death claim as a claim to reopen due to new and material evidence. Upon further review, however, the Board notes that the appellant in this case initially submitted her claim for Burial Benefits, VA Form 21-530, in March 2013. The AOJ initially denied service connection for cause of the Veteran’s death in a June 2013 rating decision. In June 2013, the appellant requested reconsideration of that decision, and the AOJ again denied service connection for cause of the Veteran’s death in a July 2013 rating decision. After receipt of additional medical evidence, the AOJ readjudicated that claim in October 2013, again denying service connection for cause of the Veteran’s death. Finally, after receipt of a second amendment to the Veteran’s death certificate from the appellant in January 2014, the AOJ denied the appellant’s claim once again in March 2014, which is the rating decision on appeal at this time. Accordingly, as there is no final decision in this case due to the continued receipt of new and material evidence under 38 C.F.R. § 3.156(b), the Board reflects that this claim is not properly characterized as a claim to reopen, but as an appeal of the initial claim for benefits. Service Connection for Cause of Death To establish service connection for the cause of the Veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related to death. For a service-connected disability to constitute a contributory cause, 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 U.S.C. § 1310; 38 C.F.R. § 3.312; see also Schoonover v. Derwinski, 3 Vet. App. 166, 168-69 (1992); Ventigan v. Brown, 9 Vet. App. 34, 36 (1996). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, 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). VA regulations provide that for a veteran who has been exposed to an herbicide agent, such as that contained in Agent Orange, during military service, service connection for prostate cancer will be presumed. See 38 C.F.R. § 3.309(e). Herbicide agents are defined by VA regulation as a chemical used in an herbicide used by the United States, specifically noted as: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. See 38 C.F.R. § 3.307(a)(6)(i). Furthermore, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. See 38 C.F.R. § 3.307(a)(6)(iii); see also VAOPGCPREC 7-93. The VA General Counsel has determined that the regulatory definition, which permits certain personnel not actually stationed within the borders of Vietnam to be considered to have served in that Republic, requires that an individual actually have been present within the boundaries of the country. Specifically, the General Counsel has concluded that in order to establish qualifying “service in Vietnam” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute “service in the Republic of Vietnam” for the purposes of 38 U.S.C. § 101(29)(A) (establishing that the term “Vietnam era” means the period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. In short, a veteran must have been physically present on the landmass or inland waters of the Republic of Vietnam at some point during his service in order to establish qualifying service in Vietnam. See Haas v. Peake, 525 F.3d 1168, 1197 (2008), cert. denied 129 S. Ct. 1002 (2009). Initially, the Board reflects that at the time of his death, the Veteran was not service connected for any disabilities. On appeal, the appellant has asserted that the Veteran’s prostate cancer contributed to his cause of death, and that given his service in the Republic of Vietnam, his prostate cancer should be presumed as due to exposure to herbicides during service. As noted above, the Veteran’s service records document that on January 10, 1967, the Veteran transferred from the U.S.S. Lipan to Da Nang, Vietnam for further transfer to Pearl Harbor. Accordingly, the Board finds that the Veteran had service in the Republic of Vietnam, and therefore exposure to herbicides is presumed in this case. See 38 C.F.R. § 3.307(a)(6)(iii); Haas, supra. The Veteran’s medical records associated with the claims file document that he had prostate cancer with a prostatectomy in 1998. Thus, as the Veteran is presumed to be exposed to herbicides are a result of his service in the Republic of Vietnam, the Veteran’s prostate cancer warrants service connection on a presumptive basis in this case. See 38 C.F.R. §§ 3.307, 3.309(e). Furthermore, the Veteran’s death certificate notes that the Veteran’s prostate cancer contributed to his death. Accordingly, as service connection for prostate cancer has been found and the evidence demonstrates that disability is shown to have caused or contributed substantially or materially to cause his death, the Board finds that service connection for cause of the Veteran’s death is warranted based on the evidence of record at this time. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement Death Pension Benefits under 38 U.S.C. §§ 1318 and 1541 Turning to the appellant’s death pension claim under 38 U.S.C. § 1318, pursuant to 38 U.S.C. § 2307, there are service-connected death burial benefits that are available under 38 U.S.C. § 1310, but not under 38 U.S.C. § 1318. See Mintz v. Brown, 6 Vet. App. 277, 282-83 (1994); see also Moffitt v. Brown, 10 Vet. App. 214, 224 (1997). Moreover, the Court has indicated that, only if an appellant’s claim for service connection for the cause of the Veteran’s death is denied under 38 U.S.C. § 1310, is VA required to also consider an appellant’s claim under the provisions of 38 U.S.C. § 1318. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Death pension benefits under 38 U.S.C. § 1541 are available to the “surviving spouse” of a Veteran because of his nonservice-connected death, as long as the Veteran served for the required period of time during wartime subject to certain income limitations. See 38 U.S.C. §§ 101, 1541; 38 C.F.R. §§ 3.23, 3.3(b)(4). Entitlement to VA benefits under 38 U.S.C. § 1310 is the greater benefit, and such has been granted in full in this case, as discussed above. In light of the grant of service connection for the cause of the Veteran’s death, the claims for entitlement to a death pension benefits under 38 U.S.C. §§ 1318 and 1541 are moot, and those claims are dismissed. Entitlement to Accrued Benefits An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The statute governing accrued benefits was amended in January 2003 to eliminate the prior two-year restriction on the payment of accrued benefits. The revision to the statute applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). Accordingly, the two-year limit on benefits is not applicable in this case. An application for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). In order to support a claim for accrued benefits, the Veteran or other payee 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. 38 U.S.C. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran’s date of death. See 38 C.F.R. § 3.1000(a). “Evidence in the file at date of death” means evidence in VA’s possession on or before the date of the Veteran’s death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). The appellant contends that she is entitled to accrued benefits because the Veteran should have been service connected for his prostate cancer prior to his death. Specifically, she states that the Veteran suffered the horrible effects of prostate cancer and underwent attempts at curative procedures in 1998, which were unsuccessful. The Board reflects that in a July 2011 Report of General Information, VA Form 21-0820, the appellant called the AOJ requesting information regarding an initial claim that she stated was submitted Additionally, in support of her claim for accrued benefits, the appellant has submitted approximately two weeks before and was not in the system. She further indicated that the Veteran was requesting to claim service connection for prostate cancer, mouth and tongue cancer, and a gastrointestinal tumor that was malignant and had been removed from his stomach; she noted that the Veteran was claiming those conditions as secondary to asbestos. She also noted that he was claiming service connection for hearing loss as a result of his service aboard a naval vessel during service. She further stated that the Veteran would be submitting VA Forms 21-526 and 21-0845, and all supporting documentation for those claims. The AOJ personnel indicated that an appropriate letter was being sent to the appellant. On the date of her phone call, the AOJ sent the Veteran a letter noting that they received his informal claim for benefits and that he must submit a completed, signed VA Form 21-526 in order to begin the claims process. The letter specifically stated that the AOJ could not take any further action on his claim until the Veteran submitted the completed application for benefits. The AOJ enclosed the appropriate VA Form 21-526 with that letter. The Board reflects that no further contact with the Veteran or the appellant was received until the appellant filed her March 2013 application for burial benefits. In support of her claim for accrued benefits, the appellant submitted in January 2014 a completed and signed VA Form 21-526 from the Veteran, which was dated on September 1, 2011. The Board reflects that such was date stamped by the AOJ in January 2014, and no copy of that form is shown to have been received by VA prior to that date. Additionally, the appellant submitted a January 2014 statement indicating that the Veteran, prior to his death, had “file[d] for VA benefits with a Mr. Lito Lopez. We were told by him that he worked for the VA and that he would file [the Veteran]’s application in September 2011.” She also submitted a letter that she sent to Mr. Lopez in June 2009 indicating that she faxed a copy of her marriage certificate to the Veteran and the Veteran’s Form DD-215 to him; the letter indicated that the Veteran was diagnosed with prostate cancer and was recently diagnosed with throat and tongue cancer of which asbestos was a contributing factor. Finally, she submitted a December 2012 letter to Mr. Castillo—approximately a week before the Veteran’s death—in which she noted that she was enclosing a copy of the information that she had sent to Mr. Lopez; she noted that she had “several conservations with Mr. Lopez and he said he was working on the information and he would get back to [her]. Obviously as you know he didn’t.” She concluded that she was not sure where the original paperwork was, but that she hoped Mr. Castillo would be “more helpful than Mr. Lopez.” Based on the foregoing evidence, the Board must conclude that the evidence demonstrates that there was no pending claim before VA at the time of the Veteran’s death. As noted above, VA never received any formal application for benefits from the Veteran prior to his death; the copy of the formal application that he signed was received in January 2014 from appellant, more than a year after his death. Although it appears that the Veteran and appellant submitted information to a Mr. Lopez who was supposed to forward that information onto VA on their behalf, unfortunately it does not appear—as the appellant concedes in her December 2012 letter to Mr. Castillo—that Mr. Lopez filed the appropriate paperwork on the Veteran’s behalf prior to his death. Accordingly, there can be no basis for an award of accrued benefits in this case based on the evidence of record, and this aspect of the appellant’s claim does not present a basis for which relief may be granted, and has no legal merit. As the disposition of this claim is based on law and not the facts of this case, the claim must be denied based on lack of entitlement under the law. See 38 U.S.C. §§ 5101(a), 5121(a); 38 C.F.R. § 3.1000; Jones, supra; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). MARTIN B. PETERS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel