Citation Nr: 18156018 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-33 596 DATE: December 6, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in October 2013. The immediate cause of his death was neuroendocrine cancer. 2. At the time of his death, the Veteran was not service connected for any disabilities. 3. The preponderance of the evidence weighs against finding that the Veteran served in or visited the Republic of Vietnam during the Vietnam Era, or that he was otherwise exposed to herbicides in service. 4. The Veteran’s neuroendocrine cancer was not manifested in service or within the first post-service year, and the preponderance of the evidence is against finding that this condition was otherwise etiologically related to his service, to include herbicide exposure. 5. The Veteran was not a former prisoner of war (POW) and he was not in receipt of or entitled to receive compensation at the 100 percent rate due to service-connected disability for a period of at least five years immediately after his discharge from active service or for 10 or more years prior to his death. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran’s death is not warranted. 38 U.S.C. §§ 1110, 1154, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312 (2017). 2. The criteria for DIC benefits pursuant to 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318 (2012); 38 C.F.R. §§ 3.22, 20.1106 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to December 1970. The Veteran died in October 2013. The appellant is the Veteran’s surviving spouse. This matter is on appeal from a March 2014 rating decision. In October 2018, the appellant withdrew her prior Board hearing request. As such, the Board may proceed with adjudication of the appeal. 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 a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 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). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Therefore, service connection for the cause of a veteran’s death may be demonstrated by showing that the veteran’s death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection is warranted for disability resulting from disease or injury that was incurred or aggravated in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for chronic diseases listed in 38 U.S.C. sections 1101(3) and 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Alternatively, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6) 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. 38 C.F.R. § 3.309(e). The VA Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice: Diseases Not Associated with Exposure to Certain Herbicide Agents, 61 Fed. Reg. 59232 (Nov. 2, 1999). The appellant is seeking entitlement to service connection for the cause of the Veteran’s death. The Veteran died in October 2013. The death certificate lists his immediate cause of death as neuroendocrine cancer. At the time of his death, the Veteran was not service-connected for any disabilities. The appellant has essentially asserted that the Veteran died of complications resulting from his exposure to Agent Orange during his service in Thailand. Although the Veteran was not service connected for neuroendocrine cancer at the time of his death, service connection for his cause of death would be warranted upon establishing that the disease is subject to presumptive service connection, or upon establishing that it had onset during, or was otherwise etiologically related to, his active military service. Review of the claims file reveals no competent and credible evidence that neuroendocrine cancer was first manifested during service, nor does the appellant so allege. Service treatment records fail to show any diagnosis of neuroendocrine cancer or indication of neuroendocrine cancer. The Veteran’s November 1970 separation examination showed normal examinations for all body systems, to include endocrine, abdomen, and viscera. Further, post-service medical records show that neuroendocrine cancer was first diagnosed and treated in May 2012, many years following service discharge, and well outside the first post-service year. Direct-incurrence service connection based on in-service onset, or presumptive service connection, based on neuroendocrine cancer as a chronic disease is therefore inapplicable, as is any finding of service connection based on continuity of symptoms under 38 C.F.R. § 3.303(b) and Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Moreover, none of the treatment records indicate a relationship between neuroendocrine cancer and service. Turning to the crux of the appellant’s allegations, that the Veteran died of complications resulting from his exposure to Agent Orange during his service in Thailand, the Board finds the evidence of record is against a finding of a nexus on an actual or presumptive basis. As noted above, service connection may be granted on a presumptive basis for certain diseases associated with exposure to herbicide agents during the Vietnam era if such diseases are shown to be manifest to a degree of 10 percent within the period prescribed in 38 C.F.R. § 3.307(a)(6)(ii). See 38 C.F.R. §§ 3.307(a), 3.309(e). However, neuroendocrine cancer is not listed as a disease for which presumptive service connection is possible. See 38 C.F.R. § 3.309(e). Although there is no confirmed diagnosis of lung cancer of record, the Board has considered the appellant’s argument that the Veteran’s undifferentiated neuroendocrine cancer started in his lungs. The Board has also considered the statement from Dr. A. H. that neuroendocrine carcinoma in a patient from an unknown primary is as likely as not to be from a lung primary. Respiratory cancers are listed as diseases for which presumptive service connection is possible. See Id. However, the evidence does not show, and the appellant does not allege, that the Veteran served in or visited the Republic of Vietnam during the Vietnam era. Therefore, exposure to herbicide agents is not presumed. See 38 C.F.R. § 3.307(a)(6)(iii). Notwithstanding the foregoing, the Federal Circuit has determined that the Veteran’s Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a Veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. See Brock v. Brown, 10 Vet. App. 155 (1997). Thus, while exposure to herbicides may not be presumed, the Board has considered whether there is evidence of actual exposure to herbicides without considering the regulatory presumptions. Here, the appellant alleges that the Veteran was exposed to herbicides while stationed at an Army post called Camp Raum Chit Chai in Sakhon Nakon, Thailand. The appellant indicated that the Veteran was a crane and shovel operator and his job included disrupting soil that Agent Orange was used in, exposing him to the chemical. To the extent that the appellant contends that the Veteran’s neuroendocrine cancer is related to exposure Agent Orange, due to the lack of corroborating evidence in official documents or elsewhere, the Board finds that that the appellant’s and the Veteran’s lay statements are not credible to establish that the Veteran was actually exposed to any herbicide agents in service, and the lay assertions of exposure similarly have not been corroborated by evidence of record. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). Here, in a February 2014 response to the RO’s inquiry, the National Personnel Records Center (NPRC) reported that there was no record that the Veteran was exposed to herbicides. See VA Form 3101 dated in February 2014. The appellant has not presented any other evidence to indicate the Veteran was exposed to herbicides. The Board has considered the Veteran’s statements that he was exposed to herbicides that were used on or around Camp Raum Chit Chai in Sakhon Nakon, Thailand. The Veteran indicated that there was a junk yard of unsalvageable equipment located less than 100 yards distance to camp that was always clean of all vegetation; there was very little vegetation on or around camp; and although there were small amounts of grass inside camp, the ground outside camp was bare. See July 2013 statement. However, the Board finds that without more of a foundation, these statements are speculative, and do not support a finding that the Veteran came into contact with herbicides, such as Agent Orange. Although a lay person can give testimony regarding things they observed (lack of vegetation around camp), they cannot give conclusions they have drawn based on assumptions that are not supported by facts in the record. Thus, the Board finds that the Veteran’s claimed exposure to Agent Orange or herbicides while serving at Camp Raum Chit Chai in Sakhon Nakon, Thailand is not supported by the evidence of record, and he is not shown to have had the requisite chemical knowledge to be deemed competent and credible in this regard. The Board acknowledges that an opinion was not obtained as to whether a condition that caused the Veteran’s death was related to service. VA must provide an examination or obtain a medical opinion when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. As discussed above, there is no competent or lay evidence suggesting that the Veteran’s neuroendocrine cancer had its onset during service, and no competent evidence relating such disability to his service. Under these circumstances, the Board finds that obtaining a VA opinion is not required. In summary, the evidence of record weighs against a finding that a service-connected disability was a principal or contributory cause of the Veteran’s death. Additionally, the competent evidence of record weighs against a finding that the Veteran’s neuroendocrine cancer had its onset during service or in the first post-service year, or was otherwise etiologically related to, his active military service, to include herbicide exposure. The Board is sympathetic to the appellant, a surviving spouse, who lost her husband. Nevertheless, the Board may not go beyond the factual evidence presented in this claim to provide a favorable determination. Thus, the appellant’s claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 VA death benefits may be paid to a deceased veteran’s surviving spouse or children in the same manner as if the veteran’s death was service-connected. 38 U.S.C. § 1318(a); 38 C.F.R. § 3.22(a). A deceased veteran is one who died not as the result of his or her own willful misconduct and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death; or continuously rated totally disabling for a period of not less than five years from the date of the veteran’s discharge or other release from active duty; or the veteran was a former POW and died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). For purposes of the statute and regulation, “entitled to receive” includes a situation in which the veteran would have received total disability compensation at the time of death but for clear and unmistakable error in a decision on a claim filed during the veteran’s lifetime. 38 C.F.R. § 3.22(b)(1). In the present case, the Veteran was discharged from service in December 1970. At the time of his death, he was not in receipt of service connection for any disabilities. The Veteran was not service-connected for any disabilities during his lifetime. The appellant has not articulated why she believes entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 are warranted. Furthermore, clear and unmistakable error has not been found nor alleged regarding any prior VA rating decision. The appellant has not specifically claimed CUE on a specific rating decision, nor has pled with any specificity that the correct facts, as they were known at the time, were not before the Board, or the statutory or regulatory provision extant at the time were correctly applied. The evidence of record does not show that the Veteran was continuously rated totally disabled (either schedular or based on unemployability) for a period of at least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for a period of not less than five years after his discharge from service. Also, the evidence does not show that he was a former POW. Therefore, the criteria for DIC benefits pursuant to 38 U.S.C. § 1318 are not met. For the foregoing reasons, the preponderance of the evidence is against the claim for DIC benefits pursuant to 38 U.S.C. § 1318. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs