Citation Nr: 1807013 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-21 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Tommy D. Klepper WITNESSES AT HEARING ON APPEAL Appellant, M.H. ATTORNEY FOR THE BOARD N. Yeh., Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from September 1961 to June 1965. The Veteran died in May 2004. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. The Appellant and her son in law testified at a Board hearing in November 2015. A copy of the hearing transcript is associated with the record. FINDINGS OF FACT 1. The weight of evidence establishes the Veteran's presence in the Republic of Vietnam during the Vietnam era. 2. The cause of the Veteran's death was a disease that is presumptively linked exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 1131, 1310 (2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant is seeking service connection for the cause of the Veteran's death. The Veteran passed away in May 2004. The immediate cause of death listed on his May 2004 death certificate is acute coronary syndrome, with hypertension and diabetes mellitus as conditions contributing to death (but not resulting in the underlying cause). In October 2014, an amended death certificate added prostate cancer as a condition contributing to death. The law also provides Dependency and Indemnity Compensation (DIC) for a spouse of a veteran who dies from a service-connected disability. See 38 U.S.C. § 1310. A service-connected disability is one which was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a) Service connection requires that the evidence show: (1) the existence of a disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the disability and a disease or injury incurred or aggravated during service-the so-called "nexus" element. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. 38 C.F.R. § 3.312 (a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the 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. 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)(1). At the time of his death, the Veteran was not service connected for a heart condition, diabetes mellitus, hypertension, or prostate cancer. The Appellant essentially contends that the Veteran had exposure to herbicide agents during his military service, either by virtue of being present in the Republic of Vietnam during the Vietnam Era, or by virtue of being exposed to herbicide agents while stationed in Okinawa, and that such exposure led to diabetes which ultimately contributed to his death. The regulations provide that service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a Veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. When it is established that a Veteran was exposed to herbicides while in service and that Veteran subsequently develops one of a list of diseases, to a degree of 10 percent or more, the disorder shall be presumed to have been incurred during service absent affirmative evidence showing that the disease was not incurred in service. 38 U.S.C. § 1116; 38 C.F.R. 3.307 (a)(6),(d), 3.309(e). Here, after an exhaustive review of the evidence of record and exacting review of the lay statements, which include statements and/or testimony from the appellant, her daughter, her son-in-law, and a long-time co-worker of the Veteran's, the Board concludes that the evidence as to whether the Veteran was in the Republic of Vietnam during the Vietnam era is at least in relative equipoise. As such, reasonable doubt is resolved in the appellant's behalf. Essentially, while the Veteran's service records did not show service in Vietnam, the appellant has advanced statements from four individuals who each described interactions with the Veteran in which he alluded to being in Vietnam, and provided details that added validity to them. The evidence shows that the Veteran's death was the result of acute coronary syndrome, which is an umbrella term for situations where the blood supplied to the heart muscle is suddenly blocked. Essentially, ischemic heart disease, which is a disease that is presumptively linked to exposure to herbicide agents. As such, the Veteran died of a disease that is presumptively linked to his presumed exposure to herbicide agents during service. Accordingly, service connection for the cause of death has been met and the appellant's claim is granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs