Citation Nr: 1808126 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-21 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to dependency and indemnity compensation (DIC), based on service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. He died on February [REDACTED], 2013. The Appellant is his surviving spouse by way of common law marriage. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction over the case was subsequently transferred to the RO in Houston, Texas. In October 2016, the Appellant and her daughter testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran died in February 2013 as a result of cardiopulmonary arrest caused by metastatic esophageal cancer. 2. The most probative evidence indicates the Veteran did not serve in the Republic of Vietnam, and as such, his exposure to Agent Orange cannot be conceded. 3. At the time of the Veteran's death, service connection was not in effect for any disability. 4. The Veteran's cardiopulmonary arrest and metastatic esophageal cancer were not etiologically related to his active service. CONCLUSION OF LAW A disability incurred in or aggravated by active service did not cause or substantially or materially contribute to the Veteran's death. 38 U.S.C. § 1310 (2012); 38 C.F.R. §§ 3.5, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that when VA receives a detailed claim for death and indemnity compensation (DIC) under 38 U.S.C. § 1310, it must provide a detailed notice to the claimant. Specifically, the Court held that, under section 38 U.S.C. § 5103(a), the notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. The Appellant was provided all required VCAA notice in a letter accompanying her VA Form 21-534EZ, which she filed in August 2013. This notice informed her of the respective responsibilities of the claimant and VA, actions taken on her behalf, and the information or evidence necessary to establish the cause of death claim. The record also reflects that all pertinent available service treatment records (STRs), official military personnel files (OMPF), and all available post-service medical evidence identified by the Appellant have been obtained. Accordingly, the Board will address the merits of the claim. Legal Criteria DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. Service connection for the cause of a veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. A service-connected disability will be considered as the principal, or primary, cause of death when such disability, 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Board has reviewed all of the evidence of record with a focus on the evidence relevant to this appeal. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate her claim and what the evidence of record shows, or fails to show, with respect to her claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran died in February 2013. During his lifetime, he was not service-connected for any disabilities. However, the Appellant has asserted the Veteran's death resulted from exposure to herbicides in service. In particular, the Appellant has testified the Veteran reported serving in the Republic of Vietnam during his period of active duty. As such, the Appellant believes his cancer resulted from exposure to Agent Orange. A review of the Veteran's post-service medical records indicates he suffered from paranoid schizophrenia. Therefore, his reports may have been of questionable reliability. Consequently, the Board has scrupulously reviewed the Veteran's personnel files to determine whether his reports could be corroborated. His OMPF indicates the Veteran did basic combat training at Fort Polk in Louisiana from March to May 1968, followed by advanced individual training at Fort Ord in California from May to July 1968. Thereafter, the Veteran's OMPF file indicates he was continuously assigned to C Company, 1st Battalion, 54th Infantry in Germany from July 1968 until his discharge in March 1970. These records contain no evidence indicating the Veteran served in the Republic of Vietnam at any time during his period of active duty. Likewise, the Veteran's STRs contain no evidence indicating he served in Vietnam. As such, the Board finds the most probative evidence in this case establishes the Veteran was not exposed to herbicides during his period of active duty. Next, the Board notes the Veteran's death certificate shows his death was due to metastatic esophageal cancer. Medical records from the Medical Center of Southwest Texas indicate the Veteran fractured his femur in January 2013. During his admission his treating clinicians noted an abnormal drop in his hemoglobin levels. After additional testing the Veteran was diagnosed with advanced primary esophageal cancer, which at that time had already metastasized to his lung, brain, and liver. During the pendency of this claim no medical clinicians have found the Veteran's esophageal cancer was in any way related to his military service. Assuming the Veteran did have service in the Republic of Vietnam, the Board notes that esophageal cancer is not among the diseases specified in 38 U.S.C. § 1116(a). As such, the Secretary has not determined, on the basis of sound medical and scientific evidence that a positive association exists between the exposure of humans to an herbicide agent and the occurrence of esophageal cancer in humans. Furthermore, the Secretary has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. This list includes esophageal cancer. See Notice, 75 Fed. Reg. 32540 (June 8, 2010); see also Notice, 75 Fed. Reg. 81332 (Dec. 27, 2010); Notice, 77 Fed. Reg. 47924 (Aug. 10, 2012); and Notice, 79 Fed. Reg. 20310 (Apr. 11, 2014). During her October 2016 Board hearing, the Appellant intimated that she would attempt to have the Veteran's death certificate amended to include lung cancer. However, such an amendment would not result in a different outcome in this case, because, as noted above, the cancer that was located in the Veteran's lung had spread from his esophagus, and the record does not establish the Veteran was exposed to herbicides in service. Finally, the Board also notes the Veteran's STRs contain no evidence of any esophageal or cardiopulmonary problems in service. Accordingly, a direct service connection cannot be established. Upon careful and compassionate review of the evidence of record, the Board finds that the Appellant is not entitled to service connection for the cause of the Veteran's death. In sum, the Board finds there is no evidence to establish the Veteran's death was principally or contributorily caused by a disability that originated during his period of active duty or was otherwise connected to his active service. There is simply no medical evidence showing a causal connection between the Veteran's death and his active service. Further, the most probative evidence of record indicates the Veteran did not serve in the Republic of Vietnam, and was not otherwise exposed to herbicides in service. With respect to whether the Appellant's own statements can establish that the Veteran's death was caused by any event or disability incurred in service, the Board notes that VA must consider all favorable lay evidence of record. 38 C.F.R. § 5107(b); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, in addition to the medical evidence, the Board has carefully considered the Appellant's own lay statements. However, the Board notes that during her October 2016 video conference hearing, the Appellant offered no explanation as to how the Veteran's death resulted from his active service, other than her contention that his death was consequentially related to his exposure to herbicides. The Board has considered whether there is any other appropriate basis to grant this claim but has found none. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notwithstanding the above decision, the Board does extend its sincerest condolences to the Appellant for her loss, as well as its highest appreciation to the late Veteran for his honorable service. ORDER Entitlement to dependency and indemnity compensation based on service connection for the Veteran's cause of death is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs