Citation Nr: 1810318 Decision Date: 02/14/18 Archive Date: 02/27/18 DOCKET NO. 09-34 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits for the cause of the Veteran's death. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran's widow and his daughter ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The Veteran had active military service from November 1956 to July 1980. He died on May [REDACTED], 2005. The appellant is his widow, so surviving spouse. She appealed to the Board of Veterans' Appeals (Board/BVA) from December 2005 and April 2007 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), which denied her claim of entitlement to service connection for the cause of his death. In July 2014, in support of this claim, the Veteran's widow and daughter testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The Board has previously remanded this claim twice. In the initial October 2014 remand, the Agency of Original Jurisdiction (AOJ) was directed to retrieve medical records and obtain a medical opinion regarding the Veteran's cause of death, including especially in terms of whether it had any correlation with his service. The additional remand in August 2015 instructed the AOJ to fulfill required steps to determine whether the Veteran was exposed to the herbicide Agent Orange while stationed in Thailand. While a portion of that development was completed, the AOJ failed to obtain a Joint Services Records Research Center (JSRRC) memorandum indicating whether the Veteran was exposed to herbicides during his time in Thailand. Because the Board nonetheless is fully granting this claim, however, that error ultimately is inconsequential, i.e., harmless, and does not preclude the Board from going ahead and deciding this appeal. 38 C.F.R. § 20.1102 (2017). FINDINGS OF FACT 1. The Veteran's cause of death primarily was from lung cancer - which, in turn, despite his history of chronic smoking, was also at least as likely as not due to his exposure to Agent Orange while stationed at the Royal Thai Air Force Base in Ubon, Thailand. 2. His pericardial window surgery just ten days before his death additionally shows that his service-connected coronary artery disease (CAD) and hypertension were conditions significantly or materially contributing to his death. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant-widow's favor, the Veteran's death was due to disease or injury incurred in or aggravated by his military service, including his exposure to Agent Orange. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, though, the Board need not discuss whether VA satisfied these preliminary obligations since the claim is being fully granted. This is because even were the Board to assume, for the sake of argument, that VA has not satisfied these preliminary obligations, this would be inconsequential and, therefore, at most amount to nonprejudicial, i.e., harmless error. Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); see also 38 C.F.R. § 20.1102. II. Cause of Death Legal Criteria The law provides DIC for a spouse of a Veteran who dies from a service-connected disability. See 38 U.S.C.A. § 1310. A service-connected disability is one that was incurred in or aggravated by active military service in the line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing this entitlement to service connection for a particular disability resulting in death requires: (1) competent and credible evidence confirming the Veteran had the claimed disability; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible of a nexus or link between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, the law provides a presumption of service connection for certain diseases, such as respiratory cancers, associated with exposure to herbicide agents that become manifest within a specified time period, even if there is no record or evidence of such disease during the period of service. Veterans who, during active military, naval, or air service, served in the Republic of Vietnam, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). There are no regulatory or statutory presumptions regarding herbicide exposure in Thailand. However, VA extends special consideration to allegations of herbicide exposure on a factual basis to veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era, specifically the Royal Thai Air Force Bases (RTAFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. The duties that are considered to have placed veterans on or near the perimeter include security policeman, security patrol dog handlers, members of the security police squadron, or those who are otherwise shown to have served near the air base perimeter as evidenced by their MOS, daily work duties, performance evaluations, and other credible evidence. M21-1, Part IV, Subpart ii, 1.H.5.a, b. 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. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause of death, or be medically related to the cause of death. 38 C.F.R. § 3.312(b). In determining whether a 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. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100-percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Medical evidence generally is required to establish a causal connection between service or a disability of service origin and the Veteran's death, assuming the conditions at issue are complex, not just simple, so not the type that lay evidence is competent to establish their origins. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Factual Background The Veteran had over twenty years of active service. His Department of Defense Form 214 (DD Form 214) shows he received both the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. His military occupational specialty (MOS) included electrical power production technician and fire protection specialist. Service personnel records (SPRs) show the Veteran was stationed at Ubon Air Base in Thailand from March 1964 to May 1966. His official position during his time in Thailand was an electrical power production specialist and technician. His duties at that time included performing maintenance on all power production equipment. It was noted that he had "performed both routine scheduled diesel engine inspections and major maintenance tasks such as trouble shooting the electrical control system of the [military base] components." It was also noted that he "supervised the maintenance and operation of all the base emergency power generators." SPRs also show the Veteran had 97 days of temporary duty ("TDY") in 1970. But further detail regarding that temporary duty assignment is not discussed or otherwise elaborated on in his SPRs. SPRs additionally show the Veteran served on Johnston Island from July 1970 to April 1971. During that time, his duties included monitoring and coordinating all electrical inspections, operations, and modifications on power generator plants. The service treatment records (STRs) show the Veteran's hypertension began in 1975 while he was in service. In April 1980 STRs, a physician indicated the Veteran had a history of "significant" toxin exposure - including "insecticides and herbicides." Correspondence from the Veteran's cardiologist in May 2002 stated that the Veteran's long-standing hypertension, hyperlipidemia, and atherosclerotic heart disease required multiple angioplasties. In correspondence dated in April 2004, the Veteran's widow stated that her husband was exposed to "several chemicals" while he was stationed on Johnston Island and in Thailand. She also stated that he had "some chemical accidently dumped on him" while in service. In private treatment notes from February 2005, a physician noted that the Veteran had a history of CAD with angioplasties and at that time he had a "40% blockage" despite ongoing treatment. It was also revealed that he had a lung mass that was "some type of primary tumor of the lung, with metastatic disease to the lumbar, thoracic, and cervical spine." In the certificate of death from May [REDACTED], 2005, the immediate cause of death is listed as "metastatic non-small lung cancer," which had been detected three months prior. Under "other significant conditions" the coroner noted the Veteran had undergone an operation just ten days prior to his death to create a "pericardial window." At the time of his death, service connection had been established for hypertension, CAD, anxiety neurosis, and several other conditions. In correspondence dated in September 2005, the Veteran's widow stated that her husband wrote to her often while in service, specifically, while stationed in Southeast Asia. She stated that he reported going on several temporary missions to Vietnam during that time. She also said that, after returning from Johnston Island, he had recurring headaches and other medical issues. In the September 2009 Substantive Appeal to the Board (on VA Form 9), the Veteran's widow claimed that he was exposed to Agent Orange during his time in service on the Johnston Atoll. During her July 2014 hearing, the appellant-widow testified under oath that, while the Veteran was stationed in Southeast Asia, a "chemical" was spilled on him. She also stated that he reported going to Vietnam on missions, but on verbal orders and not written orders. She further testified that he underwent heart surgery just a week before his death and that she was told by a treating physician at the time that his death was cardiac related, in addition to his metastatic cancer. In medical opinion provided in December 2014, on remand, the commenting physician opined that it was less likely than not the Veteran's service-connected CAD and hypertension caused or contributed substantially or materially to his death, noting, among other things, that he had "excellent pump function" in tests completed prior to his death. And as concerning the Veteran's primary cause of death, that being his metastatic lung cancer, the examiner cited the many years of smoking as the biggest factor. Precedent opinions of VA's General Counsel have discussed the cause-and-effect correlation between chronic smoking and the eventual development of certain disorders, including especially respiratory disorders. See VAOPGCPREC 2-93 (Jan. 13, 1993) and VAOPGCPREC 19-97 (May 13, 1997). And indeed, as here, for claims filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from injury or disease attributable to chronic smoking. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. Analysis Despite the most recent VA examiner's unfavorable medical opinion, the record contains sufficient other evidence supporting a finding that the Veteran's death, even if not necessarily caused by his service-connected disabilities, had these disabilities as substantially or materially contributing factors. The Board finds there are two reasons to provide the appellant the benefit of the doubt in this case. First, the Veteran's service in Thailand likely exposed him to Agent Orange, if not presumptively then as likely as not on a facts-found basis, which in turn, as a matter of law, is presumed to have caused his terminal lung cancer (at least partly). Second, cardiac surgery performed on him just ten days before his death and physician's statements regarding his overall cardiac condition suggest his cardiac problems were "other significant conditions" leading to his death. Turning first to whether the Veteran was exposed to herbicides during his time in service in Thailand, SPRs show he was stationed at Ubon Air Force base as an electrical equipment specialist from March 1964 to May 1966. His duties included "routine" inspections and also "major maintenance" on power production equipment at the Air Force Base. After the previous remand, the AOJ was instructed to do development regarding the question of whether he was exposed to herbicides during his time in Thailand. A memorandum dated in November 2015 stated that "if a veteran's MOS or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides including herbicides." Based on the Veteran's MOS, STRs, and the appellant-widow's sworn testimony, the Board resolves this reasonable doubt in her favor to find the Veteran was exposed to Agent Orange while in service. She has consistently maintained that he reported being exposed to chemicals, including Agent Orange, during his period of service in Southeast Asia. STRs from his last year in service, 1980, show he had a history of "significant" toxin exposure including "insecticides and herbicides." Add to that the fact that his MOS likely placed him near the perimeter of the Air Force Base in Thailand. His duties included repairs that were conducted on electrical facilities near the perimeter of the Air Force base. This evidence, especially in combination, tends to suggest he was exposed to Agent Orange while stationed in Thailand. See M21-1, Part IV, Subpart ii, 1.H.5.a, b. Regarding Vietnam service, while the SPRs do not show service in Vietnam, the Veteran reported that he did have TDY assignments to the country, and his SPRs do reflect periods of temporary duty, even if they do not list those locations. This suggests he did actually have temporary duty assignments in Vietnam while serving in Southeast Asia. While this question is unresolved, it is made moot by the determination that he was exposed to Agent Orange elsewhere - namely, while instead stationed in Thailand. Moreover, as treatment records and the official death certificate show the Veteran died from respiratory cancer, a presumptive disease according to 3.309(e), the Board finds that service connection resultantly is warranted for the cause of his death. See 38 C.F.R. §§ 3.307, 3.309(e), 3.312. The second reason that the Veteran's cause of death was related to his service-connected disabilities is that his cardiac condition was referenced on his death certificate as a significant condition that had contributed substantially or materially to his death. At the time of his death, he was service connected for hypertension and CAD. On his death certificate under "other significant conditions," the coroner noted that the Veteran had a "pericardial window" surgery approximately ten days before his death. While the specific condition relating to that surgery is not listed, the appellant-widow has testified that the surgery concerned the Veteran's ongoing cardiac problems associated with his hypertension and CAD. Treatment records show he had a long history of angioplasties and heart treatment. In the months immediately preceding his death, treating physicians noted that he had as much as "40% blockage" of arteries, suggesting on-going cardiac difficulties, including perhaps as additionally related to his ultimately terminal metastatic lung cancer. Additionally, the appellant has testified that the Veteran's treating physician informed her that complications arising from his cardiac condition contributed to his death. The appellant-widow is not a medical expert, but she is nonetheless competent and credible to testify about medical diagnoses provided to her from medical professionals. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The December 2014 medical opinion concluding it was less likely than not that the Veteran's service-connected CAD caused or contributed substantially to his death does not address the deteriorating condition of his heart, necessitating surgery just ten days prior to his death. So the mention that he had "excellent pump function" in tests completed prior to his death is refuted by other medical evidence in the file that was not discredited. Without an adequate factual background, predicate or rationale provided, including reconciling this discrepancy, the VA examiner's unfavorable medical opinion ultimately has little-to-no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Reonal v. Brown, 5 Vet. App. 458 (1993). Overall, then, for these reasons and bases, the Board affords the appellant the benefit of the doubt and finds that service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). ORDER This claim of entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs