Citation Nr: 18157466 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-02 598 DATE: December 12, 2018 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for cause of death is denied. FINDING OF FACT 1. The Veteran died in January 2008. The death certificate lists the immediate cause of death as multiple myeloma, with recurrent epistasis, and a history of spontaneous pneumothorax. 2. At the time of his death, the Veteran had no service-connected disabilities. 3. The record does not reflect that the Veteran served in the Republic of Vietnam. 4. The most probative evidence of record fails to show that the Veteran was exposed to toxic herbicides while serving in the military. 5. The Veteran’s fatal multiple myeloma was diagnosed many years after his service, and the most probative evidence of record fails to show that the disease was causally related to his military service, to include exposure to toxic herbicides. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1101, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from November 1968 to November 1972. The Veteran died in January 2008. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant is the Veteran’s surviving spouse. The Board has reviewed the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2. The VCAA requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claim, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187; Dingess v. Nicholson, 19 Vet. App. 473, 486. In addition, specifically in the context of a claim for cause of death benefits under 38 U.S.C. § 1310, the United States Court of Appeals for Veterans Claims (the Court) has held that Section 5103A(a) notice must include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a Dependency and indemnity Compensation (DIC) claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Court also held that a DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed application of the specific reasons why any claim made during the deceased Veteran’s lifetime was not granted. Id. All notice under the VCAA should generally be provided prior to an initial decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the United States Court of Appeals, Federal Circuit (Federal Circuit), has stated that an initially deficient notice may be cured by the issuing of a new, sufficient, notice followed by a readjudication of the claim. Mayfield, at 1333-34. VA’s duty to assist under the VCAA includes helping the claimant obtain service treatment records (STRs) and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to decide on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). Here, the Appellant was provided a VCAA notice in October 2016, which satisfied VA’s obligation to notify the claimant of any evidence that is necessary, or would be of assistance, in substantiating her claim. This notice has also met VA’s enhanced duty to assist for DIC claims, as stated under Hupp v. Nicholson, 21 Vet. App. 342 (2007). The RO also made efforts to get additional information regarding the Veteran’s service treatment records (STRs) and personnel records from the U.S. Army and Joint Services Records Research Center (JSSRC) in November 2016. These efforts included attempts to ascertain if the Veteran had served in the Republic of Vietnam, if he had been exposed to herbicides in the Republic of Vietnam or Thailand, and the nature of duties held while stationed in Thailand. Here, the Veteran’s STRs and VA medical records are in the claims file, and the Appellant has not identified any other records or evidence that remains outstanding. Additionally, VA has followed the development procedures for toxic herbicides set out in VA’s Adjudication Manual M21-1, Part IV, Subpart ii, Chapter 1, Section H. VA provided the information submitted by the Appellant about the time and location the Veteran reported toxic herbicide exposure to the U.S. Army and Joint Services Records Research Center (JSRRC) to determine if those locations were associated with herbicide exposure. The JSRRC report was associated with the record and a formal finding was made regarding herbicide exposure. In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the Federal Circuit held that 38 U.S.C. § 5103A (a) does not always require the Secretary to assist the claimant in obtaining a medical opinion or examination for a Dependency and Indemnity Compensation (DIC) claim, but it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim. The Federal Circuit added that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C. § 5103A (d) since this provision is explicitly limited to claims for disability compensation (service connection), which is defined as a monthly payment made by VA to a Veteran, and, therefore, does not pertain to a DIC claim. Id. But see Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (holding that in the context of a DIC claim, the VA must also consider that 38 U.S.C. § 5103A (a) only excuses VA from making reasonable efforts to provide an examination when no reasonable possibility exists that such assistance would aid in substantiating the claim). In this case, a medical opinion to address the cause of the Veteran’s death is unnecessary. As discussed more thoroughly below, the evidence does not indicate the Veteran was exposed to toxic herbicides while on active duty. Additionally, his STRs do not indicate he was diagnosed with or treated for multiple myeloma during service. As there is no credible evidence that the Veteran experienced an in-service event, injury or disease that resulted in his cause of death, a medical opinion is not necessary. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2015). Entitlement to Dependency and Indemnity Compensation based on service connection for cause of death. To grant service connection for the cause of the Veteran’s death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it, or that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312 (c). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In cases of service connection for the cause of the death of the Veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the Veteran to die; however, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). Service connection can also be established on a presumptive basis for certain diseases associated with in-service exposure to toxic herbicides. See 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309. Multiple Myeloma is one such disease. 38 C.F.R. § 3.309 (e). Presumptive service connection for multiple myeloma as a result of toxic herbicide exposure is warranted if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, which include a presumption of exposure to herbicides for Veterans with service in the Republic of Vietnam during specific time periods. 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Turning to the case at hand, the first Hickson element is conceded in claims for service connection for the Veteran’s cause of death. That is the Veteran’s fatal multiple myeloma is established as a current disability. This means the second and third Hickson elements, an in-service incurrence or aggravation of a disease or injury and a nexus between the current disability and in-service event, must be established in this case. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). The Veteran’s service treatment records (STRs) do not indicate an in-service manifestation of multiple myeloma. Further the Veteran was not diagnosed with multiple myeloma until 2001 which was almost twenty-nine years after the end of his active service in November 1972. Therefore, the evidence does not establish the second Hickson element through an in-service manifestation or a manifestation to ten-percent within one year. The Appellant’s primary contention is that the Veteran is entitled to a presumption of service connection because of toxic herbicide exposure in service. However, the most probative evidence in the record fails to establish the Veteran was exposed to toxic herbicides. The Veteran’s DD 214 states that the Veteran was not assigned to Vietnam or Korea, but was stationed in “Indochina.” More specifically, the Veteran’s Service Record notes that the Veteran was stationed in Udorn, Thailand. As noted, the RO placed a request to clarify the Veteran’s station after the Appellant claimed that the Veteran had served in Vietnam, yet the Air Force was “unable to determine whether or not [the Veteran] served in the Republic of Vietnam.” The Appellant has stated that the Veteran was exposed to herbicide “while traveling in and out of Viet Nam while stationed in Thailand. His mission as going to Viet Nam training radio operators.” VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim. 38 U.S.C. § 1154(a). While the Appellant is competent to report this, there is nothing in the Veterans service records to suggest that the Veteran left the base in Udorn, Thailand to train communications specialists or radio operators in Vietnam. Furthermore, both the Department of Defense and the JSRRC each could not confirm that the Veteran was ever in the Republic of Vietnam. Finally, records received by the RO from the JSRRC indicate that the Veteran reported not serving in the Republic of Vietnam during his lifetime. As such, the evidence does not show that the Veteran served in the Republic of Vietnam. If a Veteran did not serve in the Republic of Vietnam during the Vietnam era or have other service qualifying for presumptive exposure to herbicide agents, then other exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for an herbicide agent-related disease under 38 C.F.R. § 3.309 (e) to be applicable. Exposure to herbicide agents is not presumed in such instances. However, once other exposure to herbicide agents has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309 (e) for herbicide agent-related diseases is applicable. In August 2015, the M21-1MR manual provisions relating to claimed herbicide exposure in Thailand were rescinded and replaced with new M21-1 provisions, and were thereafter subject to additional revision. The current version of M21-1, Part IV., Subpart ii., Chapter 1., Section H., Topic 5., paragraph b., provides that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by the Veteran’s military occupational specialty (MOS), performance evaluations, or other credible evidence, herbicide agent exposure should be conceded on a facts-found or direct basis. This allows for presumptive service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309 (e). To apply the Thailand-exception to the case at hand, the Veteran was indeed stationed at Udorn Air Force base. There is not however any evidence to indicate that the Veteran served in a security capacity near the air base perimeter, as shown by his MOS. According to the Veteran’s Military Personnel Record his primary duty was as a Communications Center Specialist w/ Switchboard, Telephone Operator. These duties were summarized as follows: Provides calling parties with assistance and establishes conference calls when necessary. Alternate routes calls during outages and saturation periods. Maintains surveillance over SAC Airborne Command Post. Connects users of Mobile Radios to appropriate radio units or offices. Provides information service requested by subscribers. Records and reports circuit outages. Therefore, while the Veteran did indeed serve in Udorn, Thailand during the relevant service periods, his duties were not of a security capacity near the air base perimeter. As such, the Board cannot concede exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § § 3.307 (a), 3.309(e). In sum, the Veteran’s cause of death – multiple myeloma – was not a service-connected disability at the time of the Veteran’s death. 38 C.F.R. § 3.312 (c) There was also no evidence of in-service incurrence or aggravation of a disease or injury, nor medical evidence of a nexus between the claimed in-service disease or injury and the current disability, under Hickson v. West. The evidence also does not establish that the Veteran was diagnosed with multiple myeloma through an in-service manifestation or a manifestation to ten-percent within one year. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Furthermore, there is no indication that the Veteran served in the Republic of Vietnam, and as such is not entitled to the presumptive service connection for multiple myeloma because of toxic herbicide exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Finally, while the Veteran served in Udorn, Thailand during the presumptive period for limited exposure to herbicides, the Veteran’s military occupational specialty did not have the Veteran working in a security capacity on or along the perimeter of the Air Force base. M21-1, Part IV., Subpart ii, Chapter 1., Section H., Topic 5., paragraph b., In consideration of the above, the benefit-of-the-doubt rule does not apply. The claim for entitlement to DIC based on service connection for the cause of the Veteran’s death must be denied. See 38 U.S.C. § 5107 (b); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Finally, the Board is truly mindful of the Veteran’s distinguished and honorable service to our nation, as well as the great loss which has been suffered by the appellant. We are, however, restricted to the application of the law to the evidence, and unfortunately, we are unable to grant the benefit sought in this very compelling case. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel