Citation Nr: 20021492 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-08 902 DATE: March 26, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. The Veteran died in January 2012. The Appellant is his surviving spouse. 2. The Veteran’s death certificate lists his primary cause of death as bone marrow failure and multiple myeloma. Other contributory conditions included end-stage kidney disease and bleeding related to a urinary tract infection. 3. At the time of his death, the Veteran had not been granted service connection for any condition or disease. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107(b) (2014); 38 C.F.R. § § 3.102, 3.303, 3.312 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Air Force from January 1970 to January 1974. Regrettably, he passed away in January 2014. The appellant is his surviving spouse. Pursuant to an April 2019 Board decision, this matter was remanded for additional development, to include referral to the St. Paul regional office. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). Upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection cause of death When a Veteran passes away from a service-connected disability, the veteran’s surviving spouse may be entitled to Dependency and Indemnity Compensation (DIC) benefits for the cause of death. 38 C.F.R. § 1310 (2014); 38 C.F.R. §§ 3.5 (a), 3.312 (2018). In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially or materially to the veteran’s death. 38 C.F.R. § 3.312 (2018). Entitlement to DIC benefits for the cause of a veteran’s death may be established by showing that a disability for which service connection was in effect during the veteran’s lifetime was the principal or a contributory cause of death. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Otherwise, the claimant must first establish service connection for a disability shown to have caused or contributed to the veteran’s death. Id. (observing that “where service connection has not been previously established, the DIC claimant must first establish service connection for the cause of the veteran’s death”). For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially or materially to the veteran’s death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. 1. Entitlement to service connection for the cause of the Veteran's death The Appellant asserts entitlement to service connection for the Veteran’s cause of death. Regrettably, the Veteran passed away in January 2014. At the time of the Veteran’s death, service connection had not been granted for any condition or disability. According to the death certificate, his primary cause of death was bone marrow failure and multiple myeloma. Other contributory conditions included end-stage kidney disease and bleeding related to a urinary tract infection. While the Board concedes that multiple myeloma has been commonly associated with exposure to herbicides and herbicidal agents, the evidence of record fails to show that the Veteran was “in fact” exposed to the noted contaminants. 38 U.S.C. § 1116(a)(2)(G); 38 C.F.R. § 3.309 (e). In multiple lay statements, the appellant has asserted that the Veteran was exposed to Agent Orange (AO) in his performance of aircraft maintenance while stationed in Cape Newenham Air Force Station in Alaska. More specifically, she contends that the Veteran’s duties required maintenance of C-123 aircrafts. She further contends that other exposure occurred while working in proximity to trucks from which AO was sprayed during Operation Ranch Hand. As a preliminary matter, the Board observes that presumptive service connection has been extended to veterans who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. See 38 C.F.R. § 3.307 (v). For purposes of this paragraph, “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. § 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 C.F.R. § 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. Id. Review of the Veteran’s DD-214 indicates that his official military occupation was listed as a base equipment repairman and automobile mechanic. His duties included performing scheduled and unscheduled maintenance on base maintenance equipment, analyzing malfunctions, removal, repair and installation of vehicle components, and performing necessary inspections. There is no evidence that the Veteran performed maintenance on C-123 aircrafts. Military personnel records show that the Veteran’s duty assignments included the 3703rd Basic Military Training Squadron at Lackland Airforce Base in Texas, the 3355th Student Squadron at Chanute Air Force Base in Illinois, the 794th Aircraft Control and Warning (AC&W) Squadron at Cape Newenham Air Force Station in Alaska, the 3380th Maintenance and Supply (M&S) Group at Keesler Airforce Base in Mississippi, and the 3902nd Transportation Squadron at Offutt Airforce Base in Nebraska. None of the units identified have been recognized by the Department of Defense as involved in Operation Ranch Hand. Nevertheless, in April 2019, the Board remanded this matter for additional development to include VA guidance on procedures for cases involving possible exposure to Agent Orange from C-123 aircrafts. See VA’s Adjudication Manual, M21-1, IV.ii.1.H.3.a (Change Date March 18, 2019). Consistent with the Board’s directives, the Appellant’s claim was forwarded to the St. Paul regional office to conduct an additional investigation to determine whether the Veteran was assigned to a unit where the C-123 aircrafts were conducting operations. No such assignment has been shown. On multiple occasions, in May and September 2019, VA forwarded correspondence to the Appellant requesting additional evidence in support of her contention that the Veteran was exposed to Agent Orange through regular and repeated duties flying or maintaining contaminated former Operation Ranch Hand C-123 aircrafts. While the Board concedes that the appellant submitted an additional lay statement, dated June 2019, which restated her previous assertions and provided an article on presumptive herbicide exposure with an attached photograph, none of this evidence establishes that the Veteran was assigned to a unit where the C-123 aircrafts were operated. Therefore, the Board finds that service connection for the cause of the Veteran's death is not warranted. While the Board is sympathetic to the Appellant’s subjective belief that the Veteran’s death is causally related to active service, to include as due to exposure to Agent Orange therein, the evidence of record does not support her assertions. In fact, the evidence fails to show that the Veteran was ever assigned to a unit where his official duties required performing regular maintenance on contaminated former Operation Ranch Hand C-123 aircrafts. As the preponderance of the evidence is against the claim, the provisions of reasonable doubt are not for application. 38 U.S.C. § 5107 (b), 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. at 53. Therefore, the Appellant’s claim of entitlement to service connection for the cause of the Veteran’s death must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.