Citation Nr: 19106908 Decision Date: 01/30/19 Archive Date: 01/29/19 DOCKET NO. 15-22 134 DATE: January 30, 2019 ORDER Service connection for lung cancer, for accrued benefits purposes, is granted. Service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran died in June 2012 as a result of malignant neoplasm of bronchus and lungs. 2. The most probative evidence of record demonstrates the Veteran served within the Korean demilitarized zone (DMZ) in 1968-69 during his active duty service with the 2nd Engineer Battalion, 2nd Infantry Division. 3. The Veteran’s lung cancer is related to active service. 4. The cause of the Veteran’s death was lung cancer, for which service connection is now in effect. CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer, for accrued benefits purposes, have been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for the cause of the Veteran’s death have been satisfied. 38 U.S.C. §§ 1101, 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to December 1970. He died in June 2012. The appellant is the Veteran’s surviving spouse. This case is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the appellant testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Service connection for lung cancer, for accrued benefits purposes. The appellant asserts that the Veteran was exposed to herbicide agents while stationed in the DMZ, resulting in the Veteran’s lung cancer. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curium, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303 (2018). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including cancer, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. See 38 C.F.R. § 3.309(e). The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. In addition, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ, in an area in which herbicide agents are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. See 38 C.F.R. §§ 3.814(c)(2), 3.307(a)(6)(iv). To benefit from the presumption of service connection for diseases associated with herbicide agent exposure, a veteran must have one of the diseases enumerated in section 3.309(e), including respiratory cancer. Accrued benefits are periodic monetary benefits, other than insurance and servicemen’s indemnity, to which an individual was entitled at death under existing ratings or decisions and under laws administered by VA, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. While an accrued benefits claim is separate from a veteran’s claim filed prior to death, the accrued benefits claim is derivative of the veteran’s claim; thus, an appellant takes the veteran’s claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). For a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Generally, claims for accrued benefits must be adjudicated based on evidence that was physically present or constructively present in a veteran’s claims folder when he died. 38 U.S.C. § 5121(a); see also Hyatt v. Shinseki, 566 F.3d 1364 (2009); Ralston v. West, 13 Vet. App. 108, 113 (1999). The Veteran’s claim for service connection for lung cancer was initially denied in February 2012. Thereafter, additional evidence was submitted and the RO again denied the claim in a rating decision dated in late June 2012, before the Veteran’s death later that month. He died of lung cancer in June 2012. Notice of the June 2012 rating decision was sent to the Veteran by letter dated in early July 2012. Thus, as notice of the rating decision was not sent to the Veteran until after he died, the claim remained pending as of the date of death. The Veteran’s surviving spouse subsequently submitted an application for dependency and indemnity compensation in November 2012. Thus, the issue before the Board is whether the Veteran’s lung cancer was incurred or aggravated in-service. Copies of military personnel records, received in January 2012, reflect the Veteran served in Korea in 1968-69 and that he served as a power boat operator with the 2nd Engineer Battalion, 2nd Infantry Division in May 1968. Private medical records, also received in January 2012, indicate that the Veteran was receiving treatment for lung cancer. A veteran who during active military service between April 1, 1968, and August 31, 1971, served in a unit that operated in or near the Korean DMZ in an area in which herbicide agents are known to have been applied during that period, as determined by the Department of Defense (DOD), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iv); 76 Fed. Reg. 4,245 - 4,247 (January 25, 2011). This amendment is effective for all claims received by VA on or after February 24, 2011, and to claims pending before VA on that date, which includes the current appeal. Units recognized by the Department of Defense as having served in areas along the Korean DMZ include the 2nd Engineer Battalion, 2nd Infantry Division. As such, the Board finds exposure to herbicide agents is conceded. 38 U.S.C. § 1116(f). The Veteran was shown to have lung cancer prior to his death, and the Veteran’s certificate of death shows that his cause of death was malignant neoplasm of the bronchus and lungs. Accordingly, the criteria for service connection for lung cancer, for accrued benefits purposes, are met, and the claim is granted. 2. Service connection for the cause of the Veteran’s death. After a veteran’s death, VA compensates certain beneficiaries, including surviving spouses, when the cause of death is a service-connected disability or the cause of death, while not previously service connected, is related to service. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially or materially to the veteran’s death. 38 C.F.R. § 3.312. When a veteran has not been service connected for any disability, the claimant must first establish service connection for a disability shown to have caused or contributed to the veteran’s death. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007) (observing that “where service connection has not been previously established, the DIC claimant must first establish service connection for the cause of the veteran’s death”). For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially or materially to the veteran’s death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. The Veteran’s death certificate lists the immediate cause of death as malignant neoplasm of bronchus and lungs. At the time of the Veteran’s death he was service connected for residuals, fracture, left wrist, status postoperative with post-traumatic arthritis. In accordance with the above determination regarding accrued benefits, service connection for the cause of the Veteran’s death is now warranted. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel