Citation Nr: 18151321 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 13-06 509A DATE: November 16, 2018 ORDER Entitlement to service connection for the cause of death is denied. FINDING OF FACT 1. The Veteran died in October 2009. The cause of his death was respiratory insufficiency with an underlying condition of metastatic esophageal cancer and prostate cancer. 2. At the time of his death, the Veteran was not service connected for any disability. 3. The Veteran’s alleged exposure to herbicide agents has not been verified; and there is no competent evidence of record showing that the Veteran’s death was related to his service, to include alleged herbicide exposure. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from September 1965 to June 1967. He died in October 2009. The appellant is his surviving spouse. This claim comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. The RO in St. Petersburg, Florida, certified this claim to the Board for appellate review. The Board remanded the claim in December 2016. The Board’s apologies for the delays in the full adjudication of this case. Service Connection for Cause of Death Dependency and Indemnity Compensation (DIC) benefits are 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(a)(1). A "veteran" is defined as a person who served in the active military, naval, or air service. 38 U.S.C. § 101(2). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in line of duty. 38 U.S.C. § 101(24)(B); 38 C.F.R. § 3.6(a). 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. 38 C.F.R. § 3.312 (a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). A contributory cause of death is inherently not one 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. 38 C.F.R. § 3.312 (c)(1). In determining whether the disability that resulted in the death of the veteran was the result of active service, the laws and regulations generally applicable to compensation for service-connected disability apply. 38 U.S.C. § 1310. Establishing service connection requires evidence of: (1) a current disability (during the Veteran's lifetime); (2) a disease; injury, or event in service; and (3) a causal link (nexus) between the claimed disability and the disease, injury, or event in service and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Some chronic diseases (to include any type of cancer) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time post-service (one year for cancer). 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309. When certain chronic diseases are at issue, such as cancer or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptoms. In a DIC claim based on cause of death, the current disability element will always have been met (the current disability being the one that caused the veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). During the Veteran's lifetime, service connection was not established for any disability. His death certificate reflects that he died in October 2009; the immediate cause of death was respiratory insufficiency with an underlying condition of metastatic esophageal cancer. The Appellant primarily contends that the Veteran developed cancer, first prostate and then esophageal, as a result of his in-service exposure to Agent Orange while serving in Korea near the demilitarization zone (DMZ) and in Vietnam. The Veteran's service treatment records (STRs) do not show the presence of prostate cancer or esophageal cancer, or any indication of any disease or injury referable to prostate cancer or esophageal cancer in service. The STRs are silent for any complaints, treatment, or diagnosis of esophageal cancer or prostate cancer. There is no medical evidence of record that would support a finding that prostate or esophageal cancer manifest to a compensable degree within one year of service separation. The Appellant does not contend, and there is no medical evidence of record that would support, a finding of continuity of prostate cancer or esophageal cancer symptomatology since service. See 38 C.F.R. §§ 3.303(b), 3.309(a), 3.307(a)(3). The Veteran’s esophageal cancer and prostate cancer manifest more than forty years after the Veteran's separation from service. See 38 C.F.R. § 3.309 (a). The Board notes esophageal cancer is not a disease that is presumed to be associated with exposure to herbicide agents under 38 C.F.R. § 3.309 (e). The Board acknowledges that prostate cancer is specifically listed as a disease associated with exposure to herbicides. 38 C.F.R. § 3.309(e). However, the Veteran's alleged herbicide exposure during service has not been verified. Service personnel records and information from the National Personnel Records Center (NPRC) establish that the Veteran served during the Vietnam War, but in Korea from March 1966 to June 1967, before herbicides were known to be applied there, not in Vietnam. In a May 2018 letter, the Defense Personnel Research Information System indicated the unit in which the veteran served (304th Sig Bn, 57th Sig Co), was stationed in Yongsan, Korea. The records did not document the use, storage, spraying, or transportation of herbicides to include Agent Orange. In addition, the records did not document any specific duties performed by members of the 304th Sig Bn, to include the 57th Sig Co, along the Demilitarized Zone (DMZ). The appellant insists that the Veteran’s headstone inscription, noting “SGT”, “U.S. Army”, and “Vietnam”, substantiates her claim that the Veteran served in Vietnam. In a February 2018 letter, the Department of Veterans Affairs, South Florida National Cemetery indicated that the headstone inscription was determined using internal VA verification systems (BIRLS) and the DD 214 recording the Veteran’s service. It is important to understand that the Veteran’s honorable service during the Vietnam War is not in dispute. The only question is if the Veteran was in Vietnam during this War. As part of the headstone inscriptions, “Vietnam” was inscribed reflecting the war period in accordance with 38 C.F.R. 3.2. The inscription did not imply the Veteran served in Vietnam. The “Vietnam” on the headstone only identifies the war period (August 5, 1964 to May 7, 1975) in which the Veteran’s period of service in the military (September 17, 1965 to June 25, 1967) was rendered, not showing service in the Republic of Vietnam during that war. The Board finds the most probative evidence in this case indicates the Veteran's esophageal cancer and prostate cancer were less likely than not the result of his presumed exposure to herbicide agents in service. There is no other evidence that suggests the Veteran's esophageal cancer and prostate cancer were the result of disease or injury in service, and the Appellant has not put forth any alternate theories of entitlement. As the preponderance of evidence is against a finding that the Veteran's esophageal cancer and prostate cancer are the result of his presumed in-service exposure to herbicide agents, the benefit-of-the-doubt doctrine does not apply, and service connection for the Veteran's cause of death must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. E. VanValkenburg, Associate Counsel