Citation Nr: 20002344 Decision Date: 01/14/20 Archive Date: 01/10/20 DOCKET NO. 17-06 046 DATE: January 14, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. Entitlement to service connection for esophageal cancer, for substitution purposes, is granted. Entitlement to Department of Veterans Affairs (VA) burial benefits based upon a service-connected death is granted. Entitlement to dependency and indemnity compensation (DIC), pursuant to 38 U.S.C. § 1318, is denied. FINDINGS OF FACT 1. The Veteran died in December 2014. The official cause of his death listed on the certificate of death was colon cancer. 2. The Veteran’s colon cancer is shown to be at least as likely as not due to his presumed exposure to herbicide agents in Vietnam. 3. The Veteran’s esophageal cancer is shown to be at least as likely as not due to his presumed exposure to herbicide agents in Vietnam. 4. The Veteran died as the result of a disability entitled to service connection. 5. At the time of his death, the Veteran was not in receipt of, nor entitled to receive, compensation for a service-connected disability rated totally disabling for a period of 10 years immediately preceding his death. He was not continuously rated totally disabled for a period of not less than five years from the date of his discharge from active duty, and he was not a prisoner of war. CONCLUSIONS OF LAW 1. The criteria to establish service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1310, 1311(2012); 38 C.F.R. §§ 3.303, 3.307, 3.312 (2018). 2. The criteria to establish service connection for esophageal cancer, for substitution purposes, have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307 (2018). 3. The criteria for payment of burial benefits based upon a service-connected death are met. 38 U.S.C. §§ 2302, 2303 (2012); 38 C.F.R. § 3.1704 (2018). 4. The criteria to establish entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. §§ 1318, 5107 (2012); 38 C.F.R. § 3.22 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1965 to September 1967. He served in the Republic of Vietnam, and among other awards and decorations was in receipt of the Combat Infantryman Badge. He died in December 2014. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from a VA Regional Office (RO) rating decision in June 2015 that denied entitlement to service connection for the cause of the Veteran’s death and DIC pursuant to 38 U.S.C. § 1318, as well as entitlement to accrued and burial benefits. See also Notice letter to appellant, June 2015. With respect to the issue of entitlement to service connection for esophageal cancer, the RO adjudicated the claim for purposes of accrued benefits only. Statement of the case, January 2017. An accrued benefits claimant, however, has two options: to request substitution or pursue a claim for accrued benefits. See Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010). The distinction between the two types of adjudication is significant in that, unlike an accrued benefit claim, the record in a substitution claim is not closed on the date of death of the original claimant but remains open for submission and development of any pertinent additional evidence. 38 U.S.C. § 5121A. Here, the RO failed to make any substitution determination or inform the appellant of her right to pursue the claim as either a substitute claimant or as a claimant for accrued benefits. In Reliford v. McDonald, 27 Vet. App. 297, 304 (2015), the United States Court of Appeals for Veterans Claims (Court) explained that it is an appellant’s right to choose whether she wishes to waive substitution when she files a claim for accrued benefits (i.e. VA Form 21-534). As set forth below, the Board's review of the record indicates that a favorable determination is warranted on the claim of service connection for esophageal cancer based on medical opinion evidence received after the death of the Veteran. The evidence of record at the time of his death did not contain evidence linking his esophageal cancer to service. Thus, adjudication of the claim on a substitution basis is clearly more favorable to the appellant and the Board has therefore recharacterized the issue accordingly. In light of the favorable decision below, no prejudice to the appellant has resulted from the Board’s recharacterization and consideration of the matter of substitution. 1. Entitlement to service connection for the cause of the Veteran’s death is granted. To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). Determinations as to whether service connection may be granted for a disability that caused or contributed to death is based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. “A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be 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). In this instance, the Veteran is entitled to the presumption of herbicide agent exposure during his service in Vietnam. The Veteran’s official certificate of death states that his death was due to malignant colon neoplasm, or colon cancer. The Board also finds competent and credible medical evidence that states the Veteran’s colon cancer was caused, at least in part, by the Veteran’s presumed exposure to herbicide agents in Vietnam because the herbicide agent commonly known as “Agent Orange” has been defined as a human carcinogen, the Veteran had no history of exposure to other industrial carcinogens, and no genetic predisposition to colon cancer had been found based on genetic testing. Private medical opinion, March 2016; Genetic counseling report, December 2013. Thus, as the Veteran is entitled to the presumption of exposure to herbicide agents during his service in Vietnam, colon cancer was the undisputed cause of his death, and his colon cancer, among other cancers present, has been linked by a competent and credible medical opinion to the Veteran’s exposure to such herbicide agents during his active service, service connection for the cause of his death is warranted. 38 C.F.R. § 3.312. The claim is granted. 2. Entitlement to service connection for esophageal cancer, for purposes of substitution, is granted. The Veteran was diagnosed with malignant squamous cell carcinoma of the esophagus by biopsy conducted in August 2013. Pathology report, August 2013. As above, the Veteran is presumed to have been exposed to herbicide agents during his service in Vietnam, and the same March 2016 medical opinion evidence also applies to this claim as the opining physician stated that “Agent Orange contributed to the cancers and subsequent death of [the Veteran]….” Since the physician used the plural form of cancers, the Board infers reference to the Veteran’s diagnosed colon, esophageal, and kidney malignancies. A claim was filed by the Veteran during his lifetime seeking service connection for esophageal cancer. Application for Disability Compensation, October 2013. Also, as discussed above, the Board finds it in the best interest of the appellant to adjudicate this claim as a matter of substitution rather than accrued benefits, and on the basis of the foregoing, the appeal is granted. 38 C.F.R. §§ 3.303, 3.307. 3. Entitlement to VA burial benefits based upon a service-connected death is granted. VA will pay the maximum burial allowance specified in 38 U.S.C. § 2307 for the burial and funeral expenses of a Veteran who died as a result of a service-connected disability or disabilities. 38 C.F.R. § 3.1704. The criteria to establish service connection for the cause of this Veteran’s death have been met, as described by the grant of such benefits herein. As service connection for the cause of the Veteran’s death has now been established, service-connected burial benefits are also payable. Id. The appeal is granted. 4. Entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 is denied. Pursuant to 38 U.S.C. § 1318, DIC benefits are payable to the surviving spouse of a deceased Veteran, in the same manner as if the death were service connected, if the Veteran died not as the result of his own willful misconduct and the Veteran was, at the time of his death, either in receipt of or entitled to receive compensation for service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such Veteran’s discharge or other release from active duty; or (3) the Veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. This is a lesser benefit than entitlement to service connection for the cause of death established above. Nonetheless, as the appeal on this matter was perfected for adjudication by the Board, the Board discusses the reasons for denying this claim here. The Veteran was not a prisoner of war, nor was he rated totally disabled for at least five years from the date of his discharge from active duty in 1967. Thus, the remaining method to establish entitlement to this benefit is to show that he was entitled to a continuous total disability rating for a period of 10 or more years immediately preceding his death, or in other words since December 2004. The Board has granted entitlement to service connection for esophageal cancer for substitution purposes above, and although this disability has not yet been rated by the Agency of Original Jurisdiction (AOJ), the record reflects that the claim on which this grant is based was initially received by VA in October 2013. Application for benefits, October 2013. The Veteran’s esophageal cancer was first diagnosed by biopsy occurring in August 2013. Pathology report, August 2013. Thus, even if the now service-connected esophageal cancer were to be rated as 100 percent disabling, this total rating would not be effective for a period of at least 10 years preceding the Veteran’s death because the effective date of service connection for esophageal cancer could not pre-date the October 2013 application seeking the same. 38 C.F.R. § 3.400 (stating that the effective date for the award of an evaluation for disability compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later). The Board has considered the appellant’s contentions but must apply the laws as they are written and does not have discretion to extend benefits to those that have not met the minimum eligibility requirements. In a case such as this, in which the facts are not in dispute and thus the law and not the evidence is dispositive, the Board must deny the claim based on the lack of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The appeal seeking DIC benefits pursuant to 38 U.S.C. § 1318 is denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, 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.