Citation Nr: 19142047 Decision Date: 05/31/19 Archive Date: 05/31/19 DOCKET NO. 15-46 121 DATE: May 31, 2019 ORDER Entitlement to service connection for the cause of the Veteran's death, is granted. Entitlement to service connection for interstitial lung disease (also claimed as bronchitis), for accrued benefits purposes, to include as due to exposures of herbicide agents, asbestos, and contaminated water at Camp Lejeune, is denied. FINDINGS OF FACT 1. The Veteran died in May 2013 due to pneumonia caused by interstitial lung disease. 2. At the time of the Veteran’s death in May 2013, the Veteran was service-connected for bilateral patellofemoral syndrome, hearing loss, and tinnitus. 3. Resolving all reasonable doubt in favor of the Veteran, the evidence received after the Veteran’s death reveals that the Veteran’s death caused by interstitial lung disease is etiologically related to his exposure to herbicide agents during active military service. 4. The appellant’s claim for service connection for interstitial lung disease is for purposes of accrued benefits; and the evidence of record at the time of the Veteran’s death is against a finding for service connection for interstitial lung disease (also claimed as bronchitis), to include as due to exposures of herbicide agents, asbestos, and contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. 2. The criteria for entitlement to service connection for interstitial lung disease (also claimed as bronchitis), for accrued benefits purposes, to include as due to exposures of herbicide agents, asbestos, and contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 5121, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.50, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to June 1989. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In October 2018, the appellant testified before the undersigned Veterans Law Judge at a live videoconference Board Hearing. A transcript of the hearing is of record. 1. Entitlement to service connection for the cause of the Veteran's death. The Veteran died on May [Redacted], 2013, and the appellant is his surviving spouse. The record reflects the Veteran and the appellant were married on October [Redacted], 1995, and further shows the Veteran and appellant had continuous cohabitation and the appellant did not remarry after the Veteran’s death. See VA 21-534 Application for Dependency and Indemnity Compensation, February 2014. Therefore, the appellant meets the requirements for a surviving spouse, and is eligible to make this claim for VA purposes. The death certificate lists the Veteran’s cause of death as pneumonia caused by interstitial lung disease (“ILD”). Regarding a Veteran’s death, certain enumerated survivors are eligible for compensation if the death is found to be service connected. The evidence must show that a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of the Veteran’s death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death. Rather, it must be shown that there was a causal connection. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence showing (1) current disability; (2) in-service incurrence in or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If the Veteran meets the requirements for a presumption of herbicide exposure under 38 C.F.R. § 3.307, several diseases are presumed to be related to herbicide exposure. 38 C.F.R. § 3.309(e). VA regulations provide that if a Veteran was exposed to herbicides during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Additionally, VA has acknowledged a relationship between exposure to contaminants in the water supply at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987, and the subsequent development of certain listed diseases are presumptively service connected for veterans, Reservists, and former National Guard members, who have been there for a period no less than 30 days (cumulative), and who have one of the listed diseases. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). At the time of the Veteran’s death, the Veteran was service-connected for bilateral patellofemoral syndrome, hearing loss, and tinnitus. Significantly, these service-connected disabilities are not listed as a primary or contributory cause of death on the Veteran’s death certificate. Furthermore, the appellant does not contend nor does the record show that the Veteran’s service-connected disabilities caused, aggravated or contributed substantially or materially to the Veteran’s death. There is no medical evidence of record showing that the Veteran’s service-connected disabilities have increased in severity prior to his death, caused or contributed to the Veteran’s pneumonia or ILD; nor a showing that the Veteran was totally and permanently disabled due to his service-connected disabilities alone. Therefore, the Board finds there is no relationship between the Veteran’s service-connected disabilities and the cause of his death. However, the appellant contends that the Veteran’s contributory cause of death, ILD, should be directly service-connected, as there is a causal link between the following: (1) Veteran’s death and his exposure to herbicide agents while serving in Vietnam; (2) Veteran’s death and his exposure to contaminated water at Camp Lejeune; and/or (3) Veteran’s death and his exposure to asbestos. I. Service Connection on a Presumptive Basis As an initial matter, the Board notes that the Veteran’s service records reflect that the Veteran served and was treated at Camp Lejeune during the applicable period noted above; thus, the Board concedes that the Veteran was exposed to contaminated water during that time. However, the Board notes that neither pneumonia nor ILD is a listed disease for presumptive service connection under 38 C.F.R. § 3.309(f). Furthermore, the Board notes that the Veteran and the appellant has continuously and consistently contended that the Veteran served in Vietnam during a period between 1969 and 1975, where he was exposed to the herbicide agent, Agent Orange; however, the appellant noted that the Veteran’s Vietnam service is not disclosed in his military records due to the top-secret and covert nature of his service. See Statement in Support of Claim, September 2012. A review of the Veteran’s military records reveals the Veteran has had foreign service throughout his military career, but does not specifically state where the foreign service was. Additionally, upon further review of the Veteran’s military personnel file, there is a declassified report regarding covert operations in Southeast Asia, to include Vietnam; however, it does not specifically note that the Veteran was a part of this mission. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board will concede that the Veteran had Vietnam service; and thus, was exposed to Agent Orange. However so, the Board notes that neither pneumonia nor ILD is a listed disease subject to presumptive service connected based on herbicide exposure under 38 C.F.R. § 3.309(e). Therefore, based on the above, the Board finds that service connection on a presumptive basis is not warranted in this case. II. Service Connection on a Direct Basis Although service connection on a presumptive basis is not applicable, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, the evidence of record does support a conclusion that the Veteran’s death caused by ILD was directly related to his herbicide exposure in service. As mentioned above, it is presumed that the Veteran was exposed to an herbicide agent while on active duty service in Vietnam. The appellant contends that the Veteran’s death was directly caused by exposure to Agent Orange. Service treatment records (STRs) reveal the Veteran complained of and received treatment for the flu, and was subsequently diagnosed with bronchitis. Post-service private treatment records reveal the Veteran has received treatment for and been diagnosed with pneumonia and ILD. In September 2011, the Veteran was afforded a VA examination to assess his current respiratory issues, where the examiner diagnosed the Veteran with chronic inflammatory pulmonary disorder associated with bronchitis. However, the examiner opined that this condition was less likely than not related to the Veteran’s active service. The examiner rationalized that there is no documentation of pulmonary disease in service and no documentation of chronic pulmonary disease until the onset of his present condition in March 2011; and further noted that this condition is not recognized as being associated with agent orange, thus, concluding that there is no relationship to the Veteran’s service. In support of this claim, the appellant submitted a private medical opinion in May 2013 from the Veteran’s treating physician, who noted that the Veteran recently passed away from complications related to severe pneumonia and chronic lung disease. The physician opined that the Veteran was exposed to agent orange while in service in Vietnam and noted that agent orange is associated with lung disease. See Third-Party Correspondence, May 2013. To further support the appellant’s claim, she submitted another private medical opinion in October 2018 from the Veteran’s primary care physician. The physician provided that “it is my medical opinion that exposure to agent orange had a significant impact in [the Veteran’s] lung disease; [thus], there is likely a greater than a 50% chance that agent orange was directly related to his developing lung disease.” See Medical Treatment Record – Non-Government Facility, October 2018. Based on the above, the Board finds the weight of the medical evidence is in relative equipoise with respect to whether the Veteran’s cause of death of ILD was caused by his exposure to Agent Orange. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board concludes that service connection for the Veteran’s cause of death is warranted; and the claim is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990); 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, 3.310. The Board acknowledges that the appellant also contended that the Veteran’s cause of death by ILD was caused by exposures to asbestos and contaminated water at Camp Lejeune; which have both been conceded by VA. See Statement of the Case, October 2015. However, the medical evidence of record does not support that these exposures directly caused the Veteran’s death. Therefore, based on this, as well as, the fact that the Board was able to give the appellant a full grant of service connection for the cause of the Veteran’s death through the Veteran’s exposure to herbicide agents alone; the Board found that no further discussion on the other contended exposures was warranted. 2. Entitlement to service connection for interstitial lung disease (also claimed as bronchitis), for accrued benefits purposes, to include as due to exposures of herbicide agents, asbestos, and contaminated water at Camp Lejeune. The appellant contends that service connection is warranted for the Veteran’s ILD, as separate from the above grant of the DIC/cause of death claim. Accrued benefits are periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits; (ii) the Veteran had a claim pending at the time of death; (iii) the Veteran would have prevailed on that claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran’s death. 38 U.S.C. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Following a timely filing of a proper claim, such accrued benefits shall, upon the death of such individual, be paid according to a statutorily prescribed order of distribution. Essentially, accrued benefits are paid as follows: (i) the Veteran’s spouse; (ii) the Veteran’s children (in equal shares); (iii) the Veteran’s dependent parents (in equal shares). 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). In this case, the Veteran’s claim for service connection of ILD was pending until his death in May 2013; and although a Veteran’s claim terminates with the Veteran’s death, a qualified survivor may carry on, to a limited extent, the deceased veteran’s claim by submitting a timely claim for accrued benefits. See 38 U.S.C. § 5121; see also Landicho v. Brown, 7 Vet. App. 42, 47 (1994). The record reflects that the appellant’s claim for entitlement to accrued benefits was received by the VA in February 2014. Thus, the appellant’s claim was filed in a timely manner. However, the Board notes that while an accrued benefits claim is separate from the 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 the law. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Therefore, the Board may only consider evidence in the file at the date of the Veteran’s death. See 38 U.S.C. § 5121(a); see also Ralston v. West, 13 Vet. App. 108, 113 (1999); 38 C.F.R. § 3.1000(a). “Evidence in the file at date of death” means evidence in VA’s possession on or before the date of the beneficiary’s death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353 (1993). Turning to the evidence of record, and as noted above, the Veteran is presumed to have been exposed to Agent Orange in Vietnam, contaminated water at Camp Lejeune, and asbestos. However, the Veteran does not meet the requirements for presumptive service connection of ILD as due to exposures to Agent Orange or contaminated waters at Camp Lejeune, as the Veteran’s ILD is not a listed disease under 38 C.F.R. § 3.309(e) and (f), respectively. The Board must now determine whether service connection is warranted for ILD for accrued benefits purposes on a direct basis. The Board notes that a current disability and in-service injuries are clearly established by the record, as the Veteran died of ILD and has been presumed to be exposed to asbestos, Agent Orange, and contaminated waters at Camp Lejeune. However, although the first two elements of service connection are present, the evidence of record does not establish a causal link between the Veteran’s in-service exposures and his ILD at the time of the Veteran’s death. The Veteran’s STRs reveal treatment and diagnosis of the flu and bronchitis; however, there is no evidence of ILD until April 2010, more than 20 years after service, when the Veteran was treated for and diagnosed with mild progression of the interstitial lung opacities consistent with pneumonia. Subsequently, the Veteran was assessed with ILD, which was noted to have resolved in June 2010; but, the record reflects the Veteran resumed treatment for his ILD in August 2010 to his death in May 2013. Nevertheless, the September 2011 VA examiner provided a negative nexus opinion; and the record does not contain any additional competent medical evidence/opinions weighing in favor of the claim prior to the Veteran’s death. The Board has considered the statements and testimony of the appellant providing a causal link to the Veteran’s ILD and his various in-service exposures; however, the appellant is not competent to opine as to the medical etiology or render medical opinions. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). As the Board reiterates that it is not able to consider any evidence, medical or otherwise, added the claims file after the Veteran’s death, to include the positive private medical opinions submitted by the appellant; the Board concludes, that based on the above, the record does not establish the nexus element of service connection. Therefore, the claim for service connection for ILD for accrued benefits purposes is not warranted; and the claim is denied. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find the   evidence is of such approximate balance to warrant its application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.