Citation Nr: 20008098 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 12-03 049 DATE: January 30, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran’s death certificate shows that he died in January 2004 and that the immediate cause of death was pseudomonas aeruginosa septicemia. Multiple myeloma was listed as a contributory cause of death. The certifying physician on the death certificate was one of the Veteran’s treatment providers for his hospital admission immediately prior to his death. 2. At the time of the Veteran’s death, service connection was not established for any disabilities. 3. The Veteran served offshore of the Republic of Vietnam during a time in which herbicide exposure is presumptive. 4. The Veteran’s multiple myeloma had manifested to a compensable degree and was a contributory cause of his death. CONCLUSION OF LAW The requirements for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1116A, 1310; 38 C.F.R. §§ 3.5(a), 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1963 to October 1966. He died in January 2004, and the appellant is seeking benefits as his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA). A hearing was held before the undersigned Veterans Law Judge in June 2014. A transcript of the hearing is of record. In a December 2014 decision, the Board reopened the appellant’s claim and remanded the merits for further development. Thereafter, the case became subject to a stay of adjudication from the Secretary of VA until the effective date of the Blue Water Navy Vietnam Veterans Act of 2019 (the BWN Act), January 1, 2020, which has been lifted. Pub. L. 116-23, 133 Stat. 966 (June 25, 2019) (now codified in pertinent part at 38 U.S.C. § 1116A). The requested development has been completed, and the case has since been returned to the Board for appellate review. Law and Analysis Dependency and indemnity compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause and must be shown to have contributed substantially or materially to death; combined to cause death; or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. It would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In determining whether the disorder that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran who served in the Republic of Vietnam between January 9, 1962, and 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 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(d). “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The new section 38 U.S.C. § 1116A added by the BWN Act extends the above presumption of exposure to herbicide agents to those veterans who served offshore of the Republic of Vietnam during the same time period. For purposes of this section, an offshore location is one that is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting at certain enumerated points. In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), including multiple myeloma manifested to a compensable degree at any time after service. 38 U.S.C. §§ 1116(a)(1), 1116A(a); 38 C.F.R. § 3.307(a)(6)(ii). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is warranted for the cause of the Veteran’s death. The appellant has contended that the Veteran had multiple myeloma from various exposures to Agent Orange during his military service that caused his death. She has indicated that the Veteran’s treatment providers were unable to successfully treat the bacterial infection listed as his immediate cause of death because he was immunocompromised as a result of chemotherapy treatment for the multiple myeloma. See, e.g., February 2004 initial death benefits claim; June 2014 Bd. Hrg. Tr. At the time of the Veteran’s death, service connection was not established for any disabilities. Regarding the claimed in-service herbicide exposure, the record shows that the Veteran was assigned to the USS Koiner (DER-331) when it was in the official waters of the Republic of Vietnam on multiple occasions in 1965 and 1966. See May 2004 and July 2004 3101 printouts; March 1964 and September 1966 transfers and receipts entries in service personnel records (report and transfer dates for assignment to that vessel). A May 2018 Joint Services Records Research Center response shows that a review of 1965 deck logs for that vessel reveals that it conducted operations off the coast of Vietnam, anchoring at times in Da Nang Harbor, Nha Trang Harbor, and Qui Nhon Harbor, among other locations, when the Veteran was verified to be aboard. Based on the foregoing, the Board finds that the Veteran served offshore of the Republic of Vietnam during a time in which herbicide exposure is presumptive, and the presumed herbicide exposure constitutes an in-service event. The Board also finds that the Veteran’s multiple myeloma manifested to a compensable degree and was a contributory cause of his death. His death certificate shows that he died in January 2004 and that the immediate cause of death was pseudomonas aeruginosa septicemia. Multiple myeloma was listed as contributory causes of death. The certifying physician on the death certificate (Dr. W.G.) was one of the Veteran’s treatment providers for his hospital admission immediately prior to his death. The record shows that the Veteran’s multiple myeloma initially presented in a smoldering fashion, later progressing to require doses of chemotherapy medicine (Alkeran) for active disease in late 2003. See July 2001, September 2003, October 2003, and December 2003 private treatment records and January 2004 private hospital admission history and physical report; 38 C.F.R. § 4.117, Diagnostic Codes 7700-7716 (schedule of ratings for hemic and lymphatic systems effective at the time of the above treatment with some analogous total (100 percent) evaluations for active disease or during treatment phase and continuing for at least 6 months after discontinuance of certain treatment) and current Diagnostic Code 7712 and Notes (1) and (2) (new diagnostic code specifically for multiple myeloma providing for minimum 5-year 100 percent evaluation for symptomatic disease). In mid-January 2004, the Veteran was admitted to Providence Portland Medical Center for left thigh pain and swelling beginning the prior day. The impression o on the admission report includes a diagnosis of multiple myeloma with anemia, thrombocytopenia, and probable bleed into the left thigh, suggesting that the left thigh problems were related to the multiple myeloma. The autopsy report from several days later shows that the Veteran’s spleen and bone marrow had findings reflective of underlying multiple myeloma and that the left thigh tissue, blood, and spleen cultures were positive for pseudomonas aeruginosa infection. Moreover, the clinicopathologic correlation section of the autopsy report indicates that the cause of death was determined to be pseudomonas sepsis complicating extensive multiple myeloma under treatment. In reviewing Dr. W.G.’s finding on the death certificate in the context of the contemporaneous medical evidence of record, the Board finds that his determination that the Veteran’s multiple myeloma was a contributory cause of his death was based on consideration of the Veteran’s medical history as his patient, as well as current medical understanding. Therefore, the evidence is entitled to probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where rationale provided by examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion”); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in context of evidence of record). There is no medical opinion to the contrary. Based on the foregoing, the Board concludes that service connection is warranted for the cause of the Veteran’s death. In reaching this decision, the Board emphasizes that the outcome is specific to the facts of this case. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Postek, 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.