Citation Nr: 1823326 Decision Date: 04/18/18 Archive Date: 04/25/18 DOCKET NO. 11-11 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Faverio, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from March 1943 to December 1945, and from August 1948 to November 1965. He died in October 2001. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to service connection for cause of the Veteran's death. As set forth above, the claim is now in the jurisdiction of the RO in Waco, Texas. In July 2014 and December 2014, the Board remanded the matter for additional evidentiary development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran died in October 2001. The cause of his death was congestive heart failure. 2. The Veteran's congestive heart failure did not manifest during service or to a compensable degree within one year of his separation, and the record contains no indication that his congestive heart failure was causally related to his active service or any incident therein. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process The appellant contends that the Veteran's fatal congestive heart failure was incurred in service as a result of his exposure to herbicides and pesticides at Fort Riley, Kansas. The record reflects substantial efforts by the RO to obtain evidence in support of the appellant's assertions. In February 2018 written arguments, the appellant's representative argued that VA failed its duty to assist the appellant because it failed to contact the appropriate agency that maintains the records necessary to thoroughly research the appellant's claim. As set forth in detail below, however, the Joint Services Records Research Center (JSRRC) has indicated that despite searches in Army historical records, the National Archives and Records Administration (NARA), the National Agricultural Library's collection, and VA's Exposure to Agent Orange by Location, they were unable to verify or document that the Veteran had been exposed to Agent Orange or other tactical herbicides while stationed at Fort Riley. In addition, the record shows that the RO thereafter contacted the Armed Forces Pest Management Board (AFPMB) and that organization similarly indicated that after a search of their collection, they were unable to verify or document the appellant's claim. Moreover, the AFPMB indicated that there were no other avenues of development or facilities to contact in order to obtain any additional information relating to the appellant's claim that there was testing, use, or storage of any toxic agent/contaminants, including pesticides, arsenic, solvents, fuels and herbicides while Veteran was assigned to Ft. Riley Kansas. Based on the record and the unambiguous responses from the organizations referenced above, it appears that all possible avenues of development have been explored and that further attempts to obtain records documenting the appellant's claim would be futile. Neither the appellant nor her representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Background The Veteran's service treatment records are negative for notations of a heart disability, to include congestive heart failure. At his September 1965 military retirement medical examination, the Veteran's heart was examined and determined to be normal. A chest X-ray showed no significant abnormalities. His blood pressure was 138/86. On a report of medical history completed in connection with the examination, the Veteran denied having or ever having had shortness of breath, pain or pressure in his chest, high or low blood pressure, or palpitation or a pounding heart. The Veteran's service personnel records indicate that he served in Korea from February 1957 to March 1958. He did not serve in the Republic of Vietnam. In October 2001, the Veteran died at the age of 77. His certificate of death lists the cause of his death as congestive heart failure. Prior to his death, service connection had not been established for any disability. In September 2010, the appellant submitted an application for DIC benefits, seeking service connection for the cause of the Veteran's death. Later that month, the RO sent the appellant a letter asking her to submit or identify relevant evidence in support of her claim. The appellant responded that she had no additional evidence to submit. In October 2010, in response to an inquiry from the RO, the service department responded that there was no evidence in the Veteran's file to substantiate any service in the Republic of Vietnam. See also Request for Information, March 25, 2015, confirming that finding. In a November 2010 rating decision, the RO denied service connection for the cause of the Veteran's death, explaining that service connection had not been established for any disability during his lifetime, that the Veteran's service treatment records contained no evidence of a heart condition, and that the Veteran did not serve in Vietnam so presumptive service connection could not be established. The appellant appealed the RO's determination. In October 2014 written arguments, the appellant's representative indicated that although the appellant did not allege that the Veteran served in the Republic of Vietnam, it was her contention that the Veteran had been exposed to herbicides and pesticides at Fort Riley, Kansas. Thus, "under presumptive VA regulations regarding Agent Orange exposure developed ischemic heart disease that later attributed to congestive heart failure as the result of herbicide and pesticide exposure at Fort Riley, Kansas." The RO thereafter undertook additional development efforts to determine whether herbicide agents such as Agent Orange were tested, sprayed, or stored at Fort Riley, Kansas, as well as additional information identifying any testing, use, or storage of toxic agents or contaminants such as pesticides, arsenic, or herbicides at Fort Riley, Kansas. In April 2015, the Joint Services Records Research Center (JSRRC) indicated that they had coordinated their research with the National Archives and Records Administration and determined that U.S. Army historical records did not document the spraying, testing, transporting, storage, or usage of Agent Orange at Fort Riley, Kansas. Thus, they had been unable to verify or document that the Veteran had been exposed to Agent Orange or other tactical herbicides while stationed at Fort Riley. The JSRRC indicated that they could not determine or address whether any other contaminants or toxic materials had been used at Fort Riley, although a potential source of information was the Armed Forces Pest Management Board. The RO thereafter contacted the Armed Forces Pest Management Board. In May 2015, that organization indicated that they did not maintain personnel or installation records of use or exposure to pesticides. They indicated, however, that they had searched their collection for documents pertaining to Agent Orange and other tactical herbicides, as well as the National Agricultural Library's collection and VA's Exposure to Agent Orange by Location database. These sources did not document the transportation, use, testing, disposal or storage of Agent Orange or other tactical herbicides at Fort Riley. They indicated that potential duty-related pesticide exposure would have been to commercial products available at the time through the DOD supply system. They provided a catalog of available pesticide products but indicated that they were unable to document whether any of those available products were used at Fort Riley. Additionally, determining exposure to non-pesticide materials such as arsenic, solvents and fuels is beyond the scope of their records. In July 2016, the RO contacted the Armed Forces Pest Management Board to investigate whether there were any avenues of development not yet explored. That organization responded that there were no other avenues of development or facilities to contact in order to obtain any additional information relating to the appellant's claim that there was testing, use, or storage of any toxic agent/contaminants, including pesticides, arsenic, solvents, fuels and herbicides while Veteran was assigned to Ft. Riley Kansas. II. Applicable Law Dependency and indemnity compensation (DIC) is awarded to the Veteran's surviving spouse for death resulting from a service-connected disability. 38 U.S.C. § 1310. To establish service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause of death. Id.; 38 C.F.R. § 3.312. A service-connected disability will be considered the principal (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). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such cardiovascular-renal disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Pursuant to 38 C.F.R. § 3.309(e), if a Veteran was exposed to an herbicide agent during active service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The enumerated diseases include ischemic heart disease. To this end, a veteran who, during active military service, served in the Republic of Vietnam between January 6, 1962, and May 7, 1975 shall be presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. Effective February 24, 2011, VA amended its regulations to extend a presumption of exposure to certain herbicide agents, including Agent Orange, to certain veterans who served in Korea between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the DMZ in an area in which herbicide agents are known to have been applied. 38 C.F.R. § 3.307(a)(6)(iv). According to the Veteran's personnel records, he did not serve in the Republic of Vietnam during the Vietnam era. The appellant does not contend otherwise. Although the Veteran served in Korea, his tour of duty there was from February 1957 to March 1958. Absent Vietnam service or service near the Korean DMZ during the qualifying time period, the presumptive provisions are not applicable. Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. IV. Analysis After carefully reviewing the available evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death. The Veteran's death certificate states that he died in October 2001 from congestive heart failure. There were no other listed causes of death and the appellant has not alleged otherwise. As explained above, the record contains no indication, nor has the appellant contended, that the Veteran developed congestive heart failure during active duty or within one year following separation. As set forth above, as his September 1965 military retirement medical examination, the Veteran's heart was examined and determined to be normal and the Veteran denied having or ever having had heart trouble. The post-service record on appeal contains no indication of cardiovascular-renal disease within the first post-service year. Again, the appellant does not contend otherwise. Rather, the appellant contends that the Veteran's fatal congestive heart failure was incurred in service as a result of his exposure to herbicides and pesticides at Fort Riley, Kansas. As explained above, however, despite extensive research, the RO was unable to locate any evidence establishing that the Veteran was exposed to any environmental hazard while stationed at Fort Riley. Moreover, the record contains no indication that the Veteran's fatal congestive heart failure was causally related to his active service or any incident therein, to include claimed exposure to environmental hazards. The Board has considered the Appellant's lay contentions. She is competent to report symptoms and observations because this requires only personal knowledge as it comes through an individual's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant, however, is not competent to provide evidence of regarding the cause of the Veteran's congestive heart failure because it would involve inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. Although the Board sympathizes with the appellant over the death of her husband and recognizes the Veteran's twenty years of honorable service, for the reasons set forth above, the preponderance of the evidence is against a finding of service connection for the cause of the Veteran's death. Thus, the doctrine of reasonable doubt is not applicable. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs