Citation Nr: 1807590 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-11 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran had active service in the Navy from October 1963 to October 1967 and in the Army from February 1971 to January 1988. He died in July 2011 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The RO in Winston-Salem, North Carolina currently has jurisdiction over this appeal. In March 2014, the appellant requested a Board hearing be conducted via video conference. The hearing was scheduled in September 2017 but the appellant requested that the hearing be cancelled. FINDINGS OF FACT 1. The official certificate of death reflects that the Veteran died in July 2011 and lists the immediate cause of death as metastatic colon cancer due to or as a consequence of left upper lobe lung cancer. 2. At the time of the Veteran's death, service connection was in effect for chronic low back pain. 3. Prior to his death, the Veteran filed a claim seeking entitlement to service connection for cancer affecting his lung, colon, and liver, all of which he asserted were due to exposure to herbicides; however, his claim was denied in September 2010. 4. The Veteran's exposure to an herbicide agent has not been verified; nor is there any probative evidence that his death was otherwise related to his military service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 1310, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran died in July 2011. The official certificate of death lists his immediate cause of death as metastatic colon cancer, with left upper lobe lung cancer listed as an underlying cause of death. The appellant is seeking entitlement to service connection for the cause of the Veteran's death on the basis that his colon and lung cancer were the result of herbicide exposure that occurred during his service in the Panama Canal Zone. If a Veteran dies from a service-connected disability, the Veteran's surviving spouse, children or parents are entitled to dependency and indemnity compensation. 38 U.S.C. § 1310. A death will be considered to result from a service-connected disability if the evidence establishes that a disability that is causally related to service, either caused or contributed substantially or materially to the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. At the time of the Veteran's death, service connection was established for chronic low back pain. Prior to his death, the Veteran filed claims seeking service connection for lung, colon, and liver cancer, all of which he asserted were due to his exposure to the herbicide Agent Orange during his service in Panama. See March 2010 VA Form 21-526, Veterans Application for Compensation or Pension. However, in September 2010, the RO denied the Veteran's claims on the basis that there was no evidence showing his lung, colon, and liver cancers were manifested during service or within one year after service and that there was no evidence to verify that that he was exposed to the herbicide Agent Orange or other tactical herbicides while he was stationed in Panama. As noted, the appellant has similarly argued that the diseases that caused and contributed to the Veteran's death are a result of his alleged exposure to herbicides while serving in the Panama Canal Zone. In support of her claim, she has submitted an August 1999 newspaper article from the Dallas Morning News, which was reprinted in the Seattle Times, alleging that the United States tested herbicides such as Agent Orange in Panama during the 1960s and 1970s. She points to a statement in the article which asserts that three veterans and their families have been awarded benefits based upon exposure to herbicides while serving in Panama. The Veteran's service personnel records confirm that he served in Panama from February 1974 to May 1977. The Defense Personnel Records Information Retrieval System (DPRIS) has also confirmed that the Veteran's unit was stationed at Fort Gulick in the Panama Canal Zone and participated in training exercises at Fort Sherman. See August 2010 response from DPRIS. However, the evidence does not establish that the Veteran was exposed to herbicides during his service in Panama. In this context, the Board notes that VA regulations provide for a presumption of exposure to herbicide agents for certain service in the Republic of Vietnam and along the demilitarized zone (DMZ) in Korea. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii)(2017). No such presumption exists for service in Panama. VA has confirmed the use of herbicides in other locations, including in the continental United States, Canada, Puerto Rico, Johnston Island, Laos, and Cambodia, and if a Veteran is found to have been present in those locations at a time during which VA acknowledges that herbicides were used, the presumption of exposure provision would be applied. See M21-1, Part IV.ii.1.H; see Combee v. Brown, 34 F.3d 1039, 1040 (1995); Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, the Department of Defense (DoD) has not acknowledged having used herbicides in the Panama Canal Zone and there is no evidence that the Veteran ever served in the areas included on the DoD list of locations. The Board acknowledges that the DoD's list is not exhaustive but the service department has stated that there is no record that the Veteran was exposed to herbicides during service. See May and June 2010 Request for Information. The DPRIS has also reported that the Veteran's unit histories and available U.S. Army historical records do not document the spraying, testing, transporting, storage, or usage of Agent Orange or other tactical herbicides at Fort Gulick or Fort Sherman and, thus, the DPRIS was unable to verify or document that the Veteran was exposed to Agent Orange or other tactical herbicides while stationed in Panama during the reporting period. The only evidence of record that establishes the use of herbicides in the Panama Canal Zone are the statements submitted by the appellant and the news article which asserts that Agent Orange and other herbicides were used by the U.S. military in Panama during the 1960s and 1970s. The statements submitted by the Veteran include a statement written by the Veteran while he was alive, which asserts that that his unit conducted field operations in areas that were designated as Agent Orange test sites and were devoid of any live vegetation. See statements from the Veteran and R.K. dated October 2011. However, the Veteran also asserted that there were no warning signs that Agent Orange had been sprayed in those areas; nor did he state that he ever saw Agent Orange or other herbicides being used or stored in those areas. Therefore, it is not clear how the Veteran knew for a fact that the areas in which he served were designated as test sites for the use of herbicides. As for the news article which purports to establish that herbicides were used in Panama during the 1960s and 1970s, the Board finds probative that neither the government of Panama nor the United States has confirmed that Agent Orange was used in the Canal Zone, let alone during the time that the Veteran was stationed there. Furthermore, the statement included in the article regarding other Veterans who were awarded benefits based upon herbicide exposure in Panama is insufficient to establish that the herbicides were, in fact, used in Panama and that the appellant's husband was exposed to herbicides during his service in Panama. The evidence in this case which purports to establish that Agent Orange and other herbicides were used in Panama and that the Veteran was exposed to herbicides during his military service is speculative and circumstantial, at best, and is insufficient to place the evidence in approximate balance so as to invoke the reasonable-doubt doctrine. Indeed, service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (favorable evidence which does little more than suggest possibility of in-service causation is insufficient to establish service connection). Accordingly, the Board finds that the evidence weighs against a finding that the Veteran was exposed to Agent Orange and other herbicides in service, including in the Panama Canal Zone. The appellant has not offered any other theory of entitlement to service connection for cause of the Veteran's death. Indeed, the evidence does not show, nor does the appellant allege, that the Veteran's colon or lung cancers were manifested during or within one year of service or are otherwise related to his military service. Therefore, the Board finds the preponderance of the evidence is against the grant of service connection for cause of the Veteran's death. Accordingly, the Board finds that the benefit-of-the-doubt rule does not apply, and the appellant's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for cause of the Veteran's death is denied. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs