Citation Nr: 1804418 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-41 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to November 1969. He died in November 2005 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. VA's Milwaukee Pension Center currently holds jurisdiction over the appellant's file. The Board recognizes several records requests by the appellant's representative. However, in May 2016, the representative indicated the request need not be fulfilled should the Board decide in favor of the appellant. Given the favorable decision below, the Board is moving forward with the decision without addressing the records requests. FINDINGS OF FACT 1. The Veteran died in November 2005. 2. The cause of the Veteran's death was sepsis, due to or a consequence of enteric fistula with recurrent liposarcoma, due to a consequence of recurrent liposarcoma in the abdomen, due to or a consequence of liposarcoma retroperitoneum. 3. The evidence of record is at least in equipoise as to whether the Veteran was exposed to an herbicidal agent during active military service. CONCLUSION OF LAW The Veteran's cause of death was due to his active military service. 38 U.S.C. §§ 1116, 1310, 5103A, 5107 (2012); 38 C.F.R. §§ 3.5, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.5 (2017). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. 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). Service connection is warranted 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. 38 C.F.R. § 3.307(a)(6)(ii). The herbicide agents are those chemicals in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). A veteran who had active military, naval, or air service in the Republic of Vietnam during this time period is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Specific to the appellant's claim, the list of diseases, which are covered by this presumption, includes liposarcoma. 38 C.F.R. § 3.309(e). The Veteran's treatment records leading up to his death as well as his death certificate show that he died of sepsis due to recurrent liposarcoma of the abdomen. The pertinent question in this case is whether the Veteran, during his lifetime, was exposed to herbicides during his Vietnam Era service. The evidence does not show and the appellant does not contend that the Veteran served in the Republic of Vietnam during his active service. Thus, the presumption of herbicide exposure does not apply here. Rather, the contention is that he was actually exposed to herbicides during his service. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (holding that, even though a veteran did not serve in Vietnam, he remains "free to pursue his claim that he was actually exposed to herbicides while" on active service); also see Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Veteran's service personnel records show he served in Okinawa in 1968 and 1969, during the Vietnam Era. His DD Form 214 confirms his military occupational specialty as Medical Corpsman. The appellant contends the Veteran was exposed to herbicides during his tour in Okinawa while handling the wounded soldiers coming to the hospital in Okinawa from Vietnam. The Veteran made several statements during his lifetime in support of this theory. In February 2003, the Veteran reported loading and unloading unwashed and unbathed wounded soldiers and their equipment from the airplanes in order to take them into the hospital in Okinawa. He reported that these soldiers had severe wounds consisting of single, double and triple amputations, and severe lacerations. At the time of a January 2004 VA examination, he described his duties as driving a truck back and forth to bring supplies to the hospital and dispose of waste, after which he was assigned to drive a bus outfitted to carry injured soldiers evacuated to Okinawa from Vietnam. In March 2005, the Veteran reported handling soldiers and characterized them as "patients wearing their herbicide drenched clothing." In December 2005, a fellow soldier submitted a statement recalling, "Most of the time, these soldiers were still in their fatigues uniform and they were drenched with something other than sweat or water. It gave off an odor." A statement from the Veteran's oncologist after reviewing the claims file also suggested that many of the wounded soldiers were brought directly to the triage area from the battlefield. In November 2016, a private physician reviewed the pertinent evidence and submitted a statement in favor of a finding that the Veteran was exposed to herbicides during his service. This physician summarized and relied upon the evidence noted above. This physician went on to discuss the various ways VA presumptively finds veterans to have been exposed to herbicides related to their Vietnam Era service, to include with the handling of C-123 aircraft under 38 C.F.R. § 3.307(a)(6)(v). Although this regulation does not apply to this case, the physician referred to it and noted a possibility that contaminated aircrafts such as these were used to transport the wounded service members handled by the Veteran during his tour. The physician also noted two articles, copies of which were provided, which suggest that clothing contaminated with herbicides lead to second hand exposure for those handling that clothing up to and until the clothing is properly decontaminated. The physician went on to discuss the Veteran's particular family medical history, which included no indication of the rare cancer experienced by the Veteran during his lifetime. The physician explained that sarcomas can sometimes be hereditary and sometimes be associated with autoimmune diseases, neither of which the Veteran had. The physician went on to note that sarcomas are also shown in people with environmental exposure, such as the herbicides used in Vietnam. Because he did not fall into the other classes of high risk individuals, but did fall into a class of people with the expectation of possible exposure in service to herbicides, the physician found that his rare cancer can be logically and scientifically explained by exposure to herbicides during service. The physician concluded, "It is no coincidence, nor simple chance or random act that [the Veteran] developed a leiomyosarcoma or liposarcoma. It is within a reasonable medical probability that [he] was in a high risk group (exposed to herbicides and other chemicals via secondary transfer from the injured soldiers he was assisting)." Based upon this analysis of the Veteran's specific circumstances, to include the interplay between his type of cancer, his specific duties during service and his individual family health history, the physician concluded that the Veteran was at least as likely as not exposed to herbicides due to "secondary transfer in his job requirements associated with his service, and that it is most likely that this secondary exposure put him at risk of developing the otherwise extremely rare and unusual malignancy of liposarcoma and leiomyosarcoma." The physician went on to state that the probability of this being a random development of this cancer unrelated to his service "would be infinitesimal and practically mathematically impossible." In July 2017, a VA toxicologist also submitted a report related to the claim that the Veteran was exposed to herbicides while handling the clothing of injured soldiers being transported from Vietnam to Okinawa. Within this report, the toxicologist suggested that injured service members were not immediately sent to Okinawa, but noted that there was a possibility of transport "24-48 hours after initial surgery and resuscitation, for those critically injured." Again, the Veteran in this case reported unloading unwashed, unbathed soldiers with multiple amputations and severe lacerations; thus, these are presumably within the critically injured class referenced in the toxicologist's report. As to whether there was a potential transfer of herbicides through the clothing, the toxicologist referenced a study of exposure to herbicides using dermal exposure pads attached to clothing on various locations of the body. The toxicologist reported the results of the study, which found "8% of the residues were detected on individuals that entered a treated area 1 hour after application, and this dropped to 1% of the total 24 hours after application." Thus, within this report, the toxicologist confirmed that the service members handled by the Veteran were possibly transported within the 24-hour period due to critical injury and within that 24-hour period, according to the study referenced, residuals of the herbicide exposure could have indeed been on the clothing. The toxicologist went on to discuss the likelihood of the herbicides entering the body and producing harmful health effects and ultimately provided a negative conclusion. However, the factual determination needed to decide this appeal is whether the Veteran was exposed to herbicides in service, not the level to which they entered his body. This question was answered within the body of the toxicologist report, which read with consideration of the Veteran's specific type of service and in-service duties, supports a finding that he was exposed to some level to herbicides during his active service. Based upon the foregoing, to include the very specific facts of this Veteran's service, and his family history as summarized both by the private physician and VA toxicologist, and resolving all doubt in favor of the Veteran and appellant, the Board finds that the Veteran was exposed to herbicides during his active service. In sum, the evidence of record demonstrates that the Veteran was exposed to an herbicidal agent during military service and that he was diagnosed during life and ultimately died due to a liposarcoma. Accordingly, with application of the doctrine of reasonable doubt, service connection is warranted for the cause of the Veteran's death. 38 C.F.R. §§ 3.307, 3.309, 3.312; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board wishes to emphasize that the conclusions reached herein were based upon the specific facts of this Veteran's service and his post-service medical history and family medical history. This decision is not for general application to other veterans who served in Okinawa in the Vietnam Era. Finally, the Board acknowledges the appellant's representative's November 2016 statement within which arguments are made related to an accrued benefits issue. The August 2009 rating decision on appeal indeed denied the issue of service connection for intraperitoneal liposarcoma for accrued benefits purposes. The October 2009 statement accepted as a notice of disagreement for this appeal, however, references only the issue of service connection for cause of death. The accrued benefits issue was not included in that statement or any subsequent procedural documents with regard to this appeal. As such, the issue is not within the Board's jurisdiction and will not be discussed further. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs