Citation Nr: 20002946 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 16-50 186 DATE: January 14, 2020 ORDER Entitlement to service connection of stave IV lung cancer (the Veteran's cause of death) for purposes of entitlement to dependency and indemnity compensation (DIC) benefits is granted. Entitlement to service connection of stage IV lung cancer for purposes of entitlement to accrued benefits is granted. Entitlement to service connection of an acquired psychiatric condition, as secondary to stage IV lung cancer, for purposes of entitlement to accrued benefits is denied. FINDINGS OF FACT 1. Affording the Appellant the complete benefit of the doubt, the Veteran more likely than not set foot in country in the Republic of Vietnam. 2. Lung cancer, the Veteran’s cause of death, is a presumptive disability secondary to herbicide exposure. 3. The Veteran did not have a medically diagnosed acquired psychiatric disorder prior to his death. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death, stage IV lung cancer, for purposes of entitlement to DIC benefits, have been met. 38 U.S.C. §§ 1110, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.3093.312. 2. The criteria for a grant of entitlement to service connection of stage IV lung cancer for purposes of entitlement to accrued benefits, is granted 38 U.S.C. §§ 1110, 1116, 5107, 5121; 38 C.F.R. §§ 3.102, 3.304, 3.304, 3.307, 3.309, 3.816, 3.1000. 3. The criteria for a grant of service connection of an acquired psychiatric disorder, for purposes of entitlement to accrued benefits, is denied. 38 U.S.C. §§ 1110, 5107, 5121; 38 C.F.R. §§ 3.102, 3.304, 3.304, 3.307, 3.309, 3.816, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to June 1969. The Veteran died in September 2012. The appellant is the Veteran’s surviving spouse who has successfully substituted on his claims of service connection pending at the time of his death. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision and notification letter issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the appellant testified before the undersigned Veterans Law Judge at a hearing. A transcript of that hearing is of record. Dependency and Indemnity Compensation Pursuant to 38 U.S.C. § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. See 38 U.S.C. § 1310; Dyment v. West, 13 Vet. App. 141 (1999), aff’d sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran’s death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). The disability is the principal cause of death if it was “the immediate or underlying cause of death or was etiologically related thereto.” 38 C.F.R. § 3.312 (b). It is a contributory cause if it “contributed substantially or materially” to the cause of death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312 (c)(1). If a veteran was exposed to an herbicide agent during active military, naval, or air service in Vietnam, then certain diseases, such as lung cancer, shall be service connected even though there is no record of such disease during service. For the purposes of this section, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. 1. Entitlement to service connection of stave IV lung cancer (the Veteran's cause of death) for purposes of entitlement to dependency and indemnity compensation (DIC) benefits The appellant seeks service connection of the Veteran’s cause of death for purposes of entitlement to DIC benefit. The Board finds that the claim should be granted. The Veteran’s cause of death is listed on his death certificate as non-small cell lung cancer. The appellant, and the Veteran prior to his death, contend that service connection should be granted as secondary to herbicide exposure during active service. Specifically, the appellant contends that the Veteran, though stationed officially at Clark Air Base in the Philippines, on occasion would conduct missions, accompanying equipment to the Republic of Vietnam. Generally speaking, and automatic presumption of herbicide exposure is granted for any party who served in-country in the Republic of Vietnam, or within its territorial waters, extending to 12 nautical miles from the short of the Republic of Vietnam. In the present matter, a review of the Veteran’s military personnel records shows that from March 1968 to October 1969, he was stationed at Clark Air Base in the Philippines, as part of the 1st Mobile Communications Group. There is no official military evidence that the Veteran ever set foot in the Republic of Vietnam, and the Board must consider other evidence submitted in support of the claim. During his service with the 1st Mobile Communications Group, the Veteran’s position was described as “Administrative Clerk with PR. Performs the duty of In & Out Processing Clerk. Processes all incoming and outgoing PCS and TDY officers and airmen. Insures that all personnel are interviewed by the Commander upon arrival. Prepares AF Fm 246 and Unit Selection Folders on all incoming personnel. Maintains incoming personnel file.” The appellant has provided testimony in writing and before the undersigned that the Veteran spoke of visiting Vietnam during active service. Also of record is evidence documenting the work of the 1st Mobile Communications Group, which provided communication and air traffic control facilities throughout Southeast Asia. The appellant has also submitted multiple notarized and sworn statements from other servicemen attesting to the nature of the work conducted within the 1st Mobile Communications Group. Generally speaking, all describe permanent assignment in the Philippines, with multiple voluntary or involuntary temporary assignments accompanying equipment throughout the entire continental region, to include Thailand, Vietnam, Japan, and other locations. Particularly, in this matter, the appellant has provided two sworn statements from parties attesting to having seen the Veteran in the Republic of Vietnam while on a temporary assignment. The first statement is from a Team Commander with the 1st Mobile Communications Group, who stated that he encountered the Veteran in Saigon accompanying equipment to a site in Vietnam. The second is from a fellow service member who was stationed in the Republic of Vietnam (confirmed) as part of the 1st Mobile Communications Group, and who personally witnessed the Veteran in-country to courier equipment to his specific installment. Also of record are additional statements from other service members, assigned to the same group in the Philippines, attesting to regular, undocumented courier duties to other countries, to include Thailand and Vietnam. Also included are articles and statements regarding the work of the 1st Mobile Communications Group and the nature of that work, regularly involving undocumented travel to other locations in Southeast Asia, to include the Republic of Vietnam. In light of the above, the Board find that herbicide exposure should be conceded. In this regard, the Board makes no opinion or stance on the work of the members of the 1st Mobile Communications Group as a whole or individually, but makes this conclusion concerning this specific Veteran based on the evidence submitted pertaining to this specific matter. Indeed, decisions of the Board are nonprecedential and nature and only apply to the specific facts of a specific case. See 38 C.F.R. § 20.1303. Most persuasive in this matter is the sworn statement of a Group Commander within the Veteran’s unit, attesting to having physically seen him in Saigon, with a second Veteran also attesting to such first-hand knowledge of the Veteran’s presence in country. The evidence to contradict these statements consists exclusively of a negative record of such presence in the Republic of Vietnam, however, other evidence of record indicates that such a temporary visit without documentation would not be out of the ordinary. Therefore, affording the appellant the complete benefit of the doubt, the Board finds that the evidence is at least in equipoise as to whether or not the Veteran set foot in the Republic of Vietnam. When the evidence is in equipoise, the claimant prevails. As such, the Board will concede herbicide exposure in this specific instance (and only in this specific instance). In light of a presumption of herbicide exposure being established, service connection of lung cancer is granted as a presumptive disability secondary to such exposure. Service connection is therefore granted for the Veteran’s cause of death, and basic entitlement to DIC benefits is established. Accrued Benefits The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. 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, shall, upon the death of a beneficiary, be paid to the living person first listed below: (A) the veteran’s spouse; (B) the veteran’s children (in equal shares); (C) the veteran’s dependent parents (in equal shares). 38 U.S.C. § 5121 (a), 5121(a)(2); 38 C.F.R. § 3.1000 (a). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121 (a)(6). In short, an entitled party may take any benefits owed to a deceased beneficiary at the time of their death, should it be shows that benefits existed. In the instant matter, the appellant is the Veteran’s surviving spouse, and is therefore entitled to claim any benefits which had accrued at the time of the Veteran’s death. Therefore, the Board must turn to the question of whether either service connection claim pending at the time of the Veteran’s death should be granted and the benefits owed to him by virtue of such a grant disbursed to the appellant. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Generally speaking, the Board may only consider evidence of record at the time of the Veteran’s death when considering an accrued benefits claim. However, the appellant in this matter has successfully substituted as appellant on the Veteran’s claims pending at the time of his death, meaning that the Board may consider all evidence of record, to include any additional evidence submitted by the appellant following the Veteran’s death. 38 C.F.R. § 3.1000, 3.1010. 2. Entitlement to service connection of stage IV lung cancer for purposes of entitlement to accrued benefits At the time of his death, the Veteran has a pending claim of service connection for stage IV lung cancer. As is discussed in more detail above, the Board has concluded that stage IV lung cancer, which was the Veteran’s primary cause of death, should be granted service connection for purposes of entitlement to DIC benefits. As the appellant has successfully substituted as the appellant on the Veteran’s claim, she is entitled to the same consideration of the evidence as she was afforded in her DIC claim. In light of this, the Board will incorporate the same analysis as was addressed above, and grant service connection of stage IV lung cancer, for purposes of accrued benefits. Any benefits owed to the Veteran from the time of his application to the time of his death, by virtue of this grant, should be granted to the appellant. 3. Entitlement to service connection of an acquired psychiatric condition, as secondary to Stage IV lung cancer, for purposes of entitlement to accrued benefits At the time of his death, the Veteran had a pending claim of service connection for an acquired psychiatric condition, claimed as secondary to his now service-connected stage IV lung cancer. The Board finds that the claim must be denied. As an initial matter, the Board recognizes that an acquired psychiatric disorder is not granted as a presumptive disability secondary to herbicide exposure, and therefore automatic presumptive service connection is not for consideration. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. Turning to the question of direct or secondary service connection, the Board draws attention to the primary criterion of service connection, namely a presently diagnosed disability. In this regard, the Board finds that the Veteran did not have a presently diagnosed psychiatric disorder at the time of his claim, nor through the time of his death. A review of his available medical records does not show a diagnosis of an acquired psychiatric disorder within the medical meaning of any such disorder under the Diagnostic and Statistical Manual of Mental Disorders (DSM–5). He did not show any active or passive treatment of a psychiatric condition. Further, short of his application requesting service connection of “any mental health issue due to cancer,” there is no description of any symptoms or other diagnoses of record. Following the Veteran’s death, the appellant has not provided any evidence of such a diagnosed disability. The Board is certainly not unsympathetic to the Veteran’s (and the appellant’s by proxy) claim. Certainly, a terminal diagnosis of cancer could cause anguish or other distress, and the Veteran, as a lay person, was certainly competent to identify observable psychiatric symptoms. However, the diagnosis and etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). When considering psychiatric disorders, Congress has incorporated the American Psychiatric Association’s DSM-5 into the rating criteria for any mental disorder. 38 C.F.R. §§ 4.125, 4.130. In short, such a diagnosis must be made by a medical professional in convention with the DSM-5. In the present case, the Veterans and the appellant are lay persons without appropriate medical training and expertise, and thus, is not competent to make diagnosis of an acquired psychiatric disability. See id. Because the Veteran did not have a diagnosis of an acquired psychiatric disability at the time of his death, it fails the primary criterion for service connection on either a direct or secondary basis, and the claim must be denied. Because the claim is denied, there are no accrued benefits to grant based off the claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel