Citation Nr: 18159404 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 11-21 644 DATE: December 19, 2018 ORDER Entitlement to service connection for cause of death is denied. FINDING OF FACT 1. The Veteran was service-connected for lower back disability at 60 percent at the time of death. 2. The weight of the evidence is against a finding that the Veteran was exposed to herbicide agents during his active military service. 3. The cause of the Veteran’s death is not related to active service or a service connected disability. CONCLUSION OF LAW The criteria for service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1310, 1318; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service October 1967 to June 1969. 1. Entitlement to service connection for cause of death The appellant seeks entitlement to service connection for cause of her Veteran husband’s death. After a thorough review of the evidence, the Board finds that service connection for cause of death is not warranted. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should 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). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The Board notes that dependency and indemnity compensation (DIC) may also be established by a surviving spouse in the same manner as if the Veteran’s death were service-connected where it is shown that the Veteran’s death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former POW who 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). In this case, the agency of original jurisdiction (AOJ) issued a rating decision denying DIC under the provisions of 38 U.S.C. § 1318 in a July 2011 rating decision. The AOJ observed that Veteran here was granted TDIU effective June 19, 2000. At the time of death in April 2009, he had therefore been in receipt of TDIU benefits for fewer than 10 years immediately preceding death. The Veteran was not a POW. The Veteran was not rated as totally disabled upon separation from service. The record does not reflect that the Appellant filed a notice of disagreement with this decision. Accordingly, the July 2011 rating decision on the issue of entitlement to DIC under the provisions of 38 U.S.C. § 1318 is final. In the present case, the Veteran was service-connected for lumbar spine disability at 60 percent at the time of his death in April 2009. The death certificate lists the “immediate” cause of death as COPD. In the additional section of the death certificate categorized as, “other significant conditions contributing to death but not resulting in the underlying cause given in Part I,” the conditions of “new lung mass” and “traumatic arthritis” are listed. The appellant contends that the Veteran developed lung cancer as a result of exposure to Agent Orange or other dioxins including asphalt residue or diesel fumes, and that lung cancer contributed to the Veteran’s death. The appellant also contends that the Veteran’s COPD or presumed lung cancer were aggravated by the use of NSAIDs (Non-Steroidal anti-inflammatory drugs.) Service connection may also be presumed for disabilities which the Secretary of VA determines to be the result of inservice exposure to herbicides, such as Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Those disabilities include respiratory cancers, such as cancer of the lung. Id. Provided that it was manifested to a degree of at least 10 percent at any time after service, service connection may be granted. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). The Veteran had not been diagnosed with lung cancer at the time of death. The Veteran’s medical records prior to death indicate that a mass was found in the lung. Due to the Veteran’s advanced deteriorating physical condition at the time, the medical providers did not further biopsy the mass to confirm the presence of lung cancer. VA requested a medical opinion on whether that mass was lung cancer. A September 2018 VA medical opinion stated that it was more likely than not that the findings from the April 2009 CT scan, and in consideration of the Veteran’s history of 100-pack-years of smoking, represented lung cancer. The Veteran served during the Vietnam era in Thailand. The RO requested additional information regarding the Veteran’s service in Thailand and received a response in May 2017 from the Defense Personnel Records Information Retrieval System (DPRIS). The DRPIS response summarized the Veteran’s duties in Thailand with a unit that upgraded and paved roadways and the record did not document that the Veteran’s assigned unit was exposed to the use, storage, spraying, or transportation of herbicides to include Agent Orange. Moreover, the record does not reflect that the Veteran visited the Republic of Vietnam during his active military service. In light of the foregoing, the Board concludes that the Veteran is not presumed to have been exposed to herbicide agents during active service. Moreover, the record does not reflect that the Veteran was exposed to herbicides as a result of his military duties. Accordingly, the Board concludes that the Veteran was not exposed to herbicidal agents during his active military service. As Veteran was not exposed to Agent Orange or other herbicidal agents during active service, the presumption for service connection for lung cancer based on exposure to herbicides does not apply and service connection is not granted for cause of death based on lung cancer. However, notwithstanding the presumption, a claimant can establish service connection for disability due to Agent Orange exposure or other cause with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In a July 2017 VA medical opinion, the examiner opined that the Veteran’s COPD was more likely than not caused by his 100-pack-year smoking history. The September 2018 VA medical opinion also opined that the Veteran’s COPD, hyponatremia, and presumed lung cancer were less likely than not etiologically related to exposure to bituminous material and diesel fumes during active service and that the etiology was sufficiently explained by the Veteran’s heavy smoking for more than 30 years. The medical opinion in September 2018 also opined that it was less likely than not that NSAIDs aggravated COPD or the presumed lung cancer and that medical literature did not support the hypothesis that NSAIDs cause COPD or lung cancer. Additionally, the appellant contends that service connection based on cause of death is warranted because “traumatic arthritis” is listed on the death certificate. The Board disagrees with this contention. Traumatic arthritis was not the principal or primary cause of death per the death certificate that listed COPD as the “immediate cause” of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). In the additional section of the death certificate categorized as, “other significant conditions contributing to death but not resulting in the underlying cause given in Part I,” the conditions of “new lung mass” and “traumatic arthritis” are listed. Service connection for lung mass is not warranted as outlined above. Thus, the question becomes whether the service-connected condition of “traumatic arthritis” was a “contributory” cause of death as contemplated under 38 C.F.R. § 3.312. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). The Veteran was admitted to a VA medical facility days prior to his death in April 2009. The discharge summary explained that the Veteran had severe COPD when admitted. The Veteran died after a grand mal seizure during which time he broke his line and died “almost immediately at the conclusion of the seizure.” A May 2011 VA examiner opined that the Veteran’s death was not caused by or a result of his service-connected lumbar spine disability. The examiner concluded that based on the VA notes at the time of death, the “main factors that led to his death was the COPD, a newly diagnosed lung mass and also hyponatremia due to SIADH. These led to his respiratory failure and seizures which in turn caused the death.” According to the examiner, “there is no medical evidence to indicate that the [lumbar] spine condition contributed to his death at all.” The July 2017 VA examiner opined that the Veteran’s cause of death was more likely than not the grand mal seizure that resulted in the broken venous line which coincides with the discharge summary report and proximate cause of death listed in the medical records. Based on the medical evidence of record, the Board finds that the Veteran’s service-connected lumbar spine disability did not materially or substantially contribute to his death, nor did it combine to cause death, or aide or lend assistance to the production of death. 38 C.F.R. § 3.312(c)(1). In sum, the preponderance of the evidence is against the claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for the cause of the Veteran’s death is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel