Citation Nr: 20007629 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 18-28 710 DATE: January 30, 2020 ORDER Entitlement to service connection for cause of the Veteran's death is granted. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is dismissed. FINDINGS OF FACT 1. The Veteran died in August 2017 and his death certificate lists cause of death as heart failure, with diabetes mellitus and hypertension, as contributory causes. 2. The evidence of record confirms that the USS Steinaker and USS Benjamin Stoddert were anchored off the shore of Vietnam, and thus, he is presumed to have been exposed to herbicide agents during service. 3. Though the Veteran was not service-connected for diabetes mellitus at the time of his death, his diabetes mellitus is related to his active service and led or contributed to the cause of his death. 4. Service connection for the cause of the Veteran’s death is a greater benefit than DIC benefits under 38 U.S.C. § 1318. CONCLUSIONS OF LAW 1. The criteria for service connection for cause of the Veteran’s death have been met. 38 U.S.C. §§ 1310; 38 C.F.R. § 3.312. 2. The criteria for establishing entitlement to DIC under 38 U.S.C. § 1318 is moot. 38 U.S.C. §§ 1318, 5107, 5103A, 5107; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Navy from February 1956 to February 1975. Unfortunately, the Veteran passed away in August 2017 and the appellant is his surviving spouse. The appellant submitted a claim for DIC and death pension in August 2017. Cause of Death VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. To be considered a principal cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to a veteran’s death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(b), (c). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Specific to the appellant’s claim, the list of diseases, which are covered by this presumption, includes ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm), coronary bypass surgery, and stable, unstable and Prinzmetal’s angina), and diabetes mellitus. 38 C.F.R. § 3.309(e). Both the statutory phrase “served in the Republic of Vietnam” and the implementing regulation were found ambiguous as applied to service in the waters adjoining the landmass of Vietnam. Haas v. Peake, 525 F.3d 1168, 1184-85 (Fed. Cir. 2008). VA interpreted both the statute and regulation to require service on the actual landmass or on the inland waterways of the Republic of Vietnam, which the Federal Circuit found reasonable. Id. At 1189-93. On January 29, 2019, the Federal Circuit issued an en banc decision in Procopio v. Wilkie, reversing its prior determination that VA’s interpretation of the statute and regulation was reasonable. Instead, the Court held that the statutory phrase “the Republic of Vietnam” included the 12 nautical mile territorial sea of that nation. Procopio, slip op. at 10. By extension, the presumption of herbicide agent exposure extends to those veterans with service in the territorial seas of the Republic of Vietnam. 1. Entitlement to service connection for cause of the Veteran’s death. The appellant claims service connection for the Veteran’s cause of death because the disabilities that led to his death were caused by Agent Orange exposure during service. At the time of the Veteran’s death, the Veteran did not have a service-connected disability. The Veteran died in August 2017, and his death certificate indicates that the direct cause of death was heart failure, with diabetes mellitus and hypertension being noted as leading or contributing to his immediate cause of death. At the time of the Veteran’s death, he was not service-connected for any disabilities. The medical records indicate the Veteran had diagnoses of hypertensive cardiovascular disease and diabetes mellitus (initially diagnosed in 2000), which his physician considered a major risk factor for ischemic heart disease. A November 2016 treatment note indicated the Veteran was seen for congestive heart failure. As stated above, the cause of death was listed as heart failure. Military personnel records confirm the Veteran served aboard the USS Steinaker and USS Benjamin Stoddert during his period of active duty. The Agent Orange ship list shows the USS Steinaker anchored off Phan Thiet July 26 through August 3, 1968 with crewmembers going ashore to visit Junk Base and USS Benjamin Stoddert sent boats ashore from Da Nang Harbor on September 17, 1969 and December 22, 1970. Based on the specific facts of this Veteran’s service, there is sufficient evidence to determine that the Veteran served within the 12 nautical mile territorial sea of Vietnam. As such, he is presumed to have been exposed to Agent Orange. As stated above, the record indicates the Veteran suffered from cardiovascular disease and diabetes mellitus. The Veteran’s diabetes mellitus falls under the presumptive diseases associated with Agent Orange exposure. The evidence shows the Veteran was exposed to an herbicide agent during active service and was diagnosed with diabetes mellitus that led or contributed to his cause of death. Accordingly, the Board finds that the Veteran had a disease presumed to be associated with Agent Orange exposure under 38 C.F.R. § 3.309(e). The Veteran’s diabetes mellitus ultimately led to his death. As such, entitlement to presumptive service connection for diabetes mellitus is established, and service connection for the cause of death is warranted. DIC The appellant submitted a claim based on 38 U.S.C. § 1318, as an alternative theory of entitlement in seeking DIC benefits. In light of the award of service connection for the cause of the Veteran’s death, the Board concludes that the appellant’s DIC claim pursuant to 38 U.S.C. § 1318 is rendered moot. (Continued on the next page)   Under 38 U.S.C. § 2307, there are service-connected death burial benefits that are available under 38 U.S.C. § 1310, but not under 38 U.S.C. § 1318. See Mintz v. Brown, 6 Vet. App. 277, 282-83 (1994); see also Moffitt v. Brown, 10 Vet. App. 214, 224 (1997). Entitlement to VA benefits under 38 U.S.C. § 1310 is the greater benefit, and it has been granted in full. Therefore, no additional benefit (monetary or otherwise) can be gained under 38 U.S.C. § 1318, nor does any controversy remain. See Hornick v. Shinseki, 24 Vet. App. 50, 53-57 (2010); Timberlake v. Gober, 14 Vet. App. 122 (2000). Moreover, the United States Court of Appeals for Veterans Claims has indicated that only if an appellant’s claim of service connection for the cause of a veteran’s death is denied under 38 U.S.C. § 1310 is VA required to also consider an appellant’s claim under the provisions of 38 U.S.C. § 1318. See Timberlake, 14 Vet. App. at 134-35. Accordingly, in light of the award of service connection for the cause of the Veteran’s death, the claim for entitlement to DIC under 38 U.S.C. § 1318 is moot, and this claim must be dismissed. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Price, 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.