Citation Nr: 18155545 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 14-16 994 DATE: December 4, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT The evidence of record does not show that the Veteran’s death was caused by or related to his service or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 1310, 1821, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to July 1968. The Veteran died in June 2010. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) regional office. During the course of this appeal, the Appellant testified before the undersigned Veterans Law Judge (VLJ) in September 2014. A transcript of that hearing is associated with the claims file. This matter was previously before the Board and remanded for further development in December 2015. Entitlement to service connection for the cause of the Veteran's death To establish service connection for the cause of the Veteran’s death, the evidence must show that disability incurred in or caused or aggravated by service either caused or contributed substantially or materially to the cause of 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 thereto. 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. Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). 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 of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Service connection may be established for a disease or injury incurred in or caused or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a) and include malignant tumors, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With a chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a).” Walker, 708 F.3d at 1337. Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam era. VA regulations presume that veterans who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, were exposed to those herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran died in June 2010. The cause of the Veteran’s death was determined to be metastatic liver cancer. Service connection for this condition was neither established nor claimed prior to the Veteran’s death. The Veteran did not present with symptoms of this condition until 2010. Therefore, the Board finds that the Veteran’s liver cancer did not begin in service, within one year of service, and that it did not manifest with a continuity of symptomatology since his service or the chronic disease presumptive period after his separation. Notably, the Appellant makes no claim that his condition did so. Consequently, the Board finds that service connection cannot be established based on an in-service onset or the presumption of service connection for chronic diseases. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. While liver cancer is not among the conditions that VA regulations list as presumptively related to exposure to herbicide agents, respiratory cancers are. 38 C.F.R. § 3.309(e). The Veteran’s liver cancer was not the primary site of his cancer, and he showed evidence of metastatic lung cancer, meaning that it is possible that his liver cancer spread to his liver from his lungs. Therefore, if the Veteran’s presumed or actual exposure to herbicide agents can be established during his service, service connection could be appropriate under this presumption. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran’s exposure to herbicide agents cannot be presumed in this case. While the Appellant testified during the September 2014 hearing that the Veteran recounted experience in the Republic of Vietnam both at sea and on land, the Veteran’s military personnel records and the unit histories of the unit to which he was assigned and the ship on which it traveled document that the Veteran’s foreign and sea service consisted of service in the territorial waters of the United States near Florida and Virginia, in the Caribbean near Cuba, and in the Mediterranean (in a variety of ports and locations). In short, relevant service records provide no evidence that the Veteran was even in the same hemisphere as Vietnam during his service. The Board finds that the records of the Veteran’s military service and unit histories which were produced contemporaneously with his service are the more credible account of the Veteran’s military service than the Appellant’s testimony of the Veteran’s reports that he served in Vietnam recounted nearly a half century after the fact. Consequently, the Board finds that the Veteran’s exposure to herbicide agents cannot be presumed, because the most credible evidence of record is that the Veteran did not serve in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Notably, the Appellant appears to have adjusted her contention that the Veteran served in Vietnam since the time of the hearing. The Appellant has instead submitted an argument in May 2017 constructed by a historian arguing that the Veteran must have been exposed to herbicide agents via vehicles and equipment that had been to Vietnam and then stationed on the same ship or base as the Veteran. This argument is the only portion of the record that indicates that the Veteran was exposed to herbicide agents. However, this falls far short of actually establishing any such exposure. The argument proceeds by asserting that because four squadrons that had previously been assigned to Vietnam were later assigned to the same ship as the Veteran, that it is “safe” to “deduce” that the Veteran was exposed to herbicide agents. However, this argument depends on assuming or speculating that the Veteran helped service these aircraft, even though they were not part of the squadron he was assigned to, because they were “all on the same team.” This historical argument also relies on the “testimony” of the Veteran that he and his air crew had to wash a plane before servicing it or they would experience a burning sensation in their hands and arms. However, there is no such testimony in the record. This claim did not even begin until after the Veteran was deceased for nearly two years. The record contains no testimony or other statement from the Veteran regarding experiencing a burning sensation while attempting to service aircraft. This historical argument also asserts that the Appellant advised that the Veteran specifically told her that he had traveled on board a C-123 aircraft. However, this, like the “testimony” of the Veteran regarding a burning sensation in his hands and arms during service, is not actually in the record. Reading this argument in the light most favorable to the Appellant’s claim, the Board could infer that the historian conducted some kind of interview with the Appellant in which she made the statements referred to in the argument. However, if such an interview was conducted, the Board notes that it is not cited in the argument’s endnotes. In any event, the Board does not find the description of the Veteran’s service relied on in the historian’s argument credible in the context of this appeal. As previously noted, the Appellant provided a dramatically different account of the Veteran’s service in her testimony in September 2014. At that time, she described the Veteran as actually serving in Vietnam, including going to the mainland of Vietnam to retrieve parts of aircraft and traversing very wet environments in order to do so. She testified that she was married to the Veteran at the time of his service, and would therefore have had reason to know where he was stationed. She testified that for many years after his service, the Veteran worried that he had been exposed to Agent Orange. After the hearing, the unit histories of the Veteran’s squadron and the ship that it traveled on were added to the record. Two months after these documents were added to the record, the historian providing the argument previously described relied on a very different description of the Veteran’s service. In this new account, the Veteran did not go to Vietnam at all, but instead went outside the scope of his duties to service aircraft that were not assigned to his squadron, experienced an immediate burning sensation while doing this extra work, and, for good measure, also recounted to the Appellant the type of aircraft that he traveled on (a C-123, a type of aircraft known to have deployed tactical herbicide agents) on a single occasion that the Appellant now remembers. Based on the inconsistency of the descriptions of the Veteran’s service given in her testimony in September 2014 and the description she apparently provided to the historian who constructed the May 2017 argument, the Board finds that the description provided for the historian’s argument, especially those portions regarding the Veteran experiencing a burning sensation while performing work outside his duties and traveling via C-123 aircraft are not credible and cannot form the basis of a finding of actual exposure to herbicide agents. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that lay evidence may be found not credible where there is evidence of “possible bias, conflicting statements, etc.”). Because the historian’s argument from May 2017 based on a description of the Veteran’s service that is not credible is the only evidence of record that purports to show that the Veteran was actually exposed to herbicide agents, the Board finds that service connection cannot be established based on exposure to herbicide agents. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304; Hickson, 12 Vet. App. 247. Finally, neither the Veteran’s military personnel records, his service treatment records, nor any of the other evidence of record suggests a connection between the Veteran’s cancers that manifested in 2010 and his service, to include the private medical opinion dated in December 2012, except the claimed exposure to herbicide agents. Consequently, the Board finds that the evidence of record preponderates against a finding that his liver cancer that resulted in his death was caused by, aggravated by or otherwise related to his service. Id. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel