Citation Nr: 20034080 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 20-08 268 DATE: May 15, 2020 ORDER As good cause has been shown for the Veteran’s submission of an untimely Notice of Disagreement (NOD) to the April 2016 rating decision denying service connection for esophageal cancer, the appeal as to the timeliness of the NOD is granted. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for cause of death is remanded. FINDINGS OF FACT 1. The Veteran’s treatment for esophageal cancer during the one-year appeal period of the April 2016 rating decision, which denied service connection for esophageal cancer, establishes good cause for his untimely July 2017 NOD submission. 2. The Veteran was not rated as totally disabled due to service-connected disabilities for 10 continuous years immediately preceding his death and was not rated as totally disabled continuously since his release from active duty and for at least 5 years immediately preceding his death; the Veteran was not a prisoner of war. CONCLUSIONS OF LAW 1. Good cause having been shown, the July 2017 NOD with respect to the April 2016 rating decision is accepted as timely. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.109(b); 38 C.F.R. § 20.302(a) (2019). 2. The criteria for entitlement to DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from July 1970 to June 1974. Unfortunately, the Veteran passed away in September 2017. The appellant is his surviving spouse who has been properly substituted as claimant. The Board notes that the July 2017 notice of disagreement to the April 2016 rating decision lists the issue of entitlement to service connection for hearing loss. However, the April 2016 rating decision did not address the issue of service connection for hearing loss. Instead, a July 2014 rating decision denied service connection for hearing loss. As such, the issue of service connection for bilateral hearing loss has not been properly appealed and is not before the Board. 1. Good cause has been shown for the untimely NOD filed in response to the April 2016 rating decision Having reviewed the evidence of record, the Board finds that good cause has been shown for the untimely July 2017 NOD filed in response to an April 2016 rating decision. Under 38 C.F.R. § 3.109, time limits for filing to challenge an adverse VA decision may be extended in some cases on a showing of “good cause.” Specifically, 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. In the case at hand, the April 2016 rating decision denied service connection for esophageal cancer, and the Veteran submitted a notice of disagreement in July 2017, which is beyond the one-year appeal period. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In his July 2017 NOD, the Veteran noted that he did not receive the April 2016 rating decision and was only notified in July 2017 when he checked eBenefits. However, as the Board finds good cause as to the untimely NOD, the Board will not address the merits of those assertions. In the July 2017 NOD and an August 2017 affidavit from the Veteran’s attorney at the time, it was noted that he was receiving chemotherapy and radiation for esophageal cancer and, as such, was too incapacitated to respond timely. The Board notes that treatment records do reflect that the Veteran underwent chemotherapy for esophageal cancer after April 2016 and prior to the July 2017 NOD. In light of the Veteran’s chemotherapy and recovery, the Board finds that good cause has been shown for the filing of the untimely NOD, and the NOD is therefore accepted. Accordingly, the issue of service connection for esophageal cancer remains pending. However, the Agency of Original Jurisdiction (AOJ) has not adjudicated and issued a Statement of the Case regarding the issue of service connection for esophageal cancer determined in the April 2016 rating decision. Therefore, the Board does not have jurisdiction over the merits of the appeal. Instead, the matter remains pending before the AOJ. 2. Entitlement to Death and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 Pursuant to 38 U.S.C. § 1318 (a), benefits are payable to the surviving spouse of a deceased veteran in the same manner as if the death were service connected. A “deceased veteran” for the purposes of this provision is a veteran who died not as a result of his own willful misconduct and was either in receipt of, or entitled to receive, compensation at the time of death for service-connected disability rated as totally disabling, if the service-connected disability was rated as totally disabling for 10 or more years immediately preceding death, or if continuously rated as totally disabling for at least 5 years after separation from active service. 38 U.S.C. § § 1318(b); 38 C.F.R. § 3.22. A “deceased veteran” also includes a former prisoner of war who died after September 30, 1999, with a service-connected disability rated totally disabling for not less than one year immediately preceding death. Id. The total rating may be schedular or based on unemployability. 38 C.F.R. § 3.22(c). Prior to his death, the Veteran was service connected for unspecified trauma, rated 30 percent from August 20, 2012, and tinnitus, rated 10 percent from August 20, 2012. As such, the Veteran was not in receipt of, or entitled to receive, a total rating for any period prior to his death. Nor does the record reflect that the Veteran was a prisoner of war, and the appellant has not suggested as such. As such, the appeal does not meet any of the criteria to establish DIC under 38 U.S.C. § 1318. The Board acknowledges the attorney’s assertions that the Veteran was entitled to benefits because he was presumed to have been exposed to Agent Orange exposure, and the appellant is entitled to DIC because the Veteran died from metastatic cancer as caused by Agent Orange exposure. However, the Board explains that the Veteran was not service connected for metastatic esophageal cancer prior to his death. As such, the Veteran was not in receipt of, or entitled to, benefits for metastatic esophageal cancer prior to his death. Accordingly, entitlement to DIC under 38 U.S.C. § 1318 is not warranted. REASONS FOR REMAND Entitlement to service connection for cause of death is remanded. The Veteran’s death certificate lists metastatic esophageal cancer as the cause of death. The Veteran was not service connected for esophageal cancer prior to his death. However, the Board must consider whether service connection is warranted for any disabilities listed on the death certificate as cause of death or contributory cause of death. Therefore, although the Veteran was not service connected for esophageal cancer at the time of his death, the Board must now consider if service connection is warranted for that disability. In order to address the matter of service connection for esophageal cancer, remand is necessary. At the outset, the Board notes the appellant’s assertions that the Veteran was exposed to Agent Orange during service. Additionally, the appellant’s attorney asserts that the Veteran is presumptively entitled to service connection for esophageal cancer given his Agent Orange exposure. VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307 (a)(6)(iii). While the Veteran’s service in Vietnam during the applicable time period is reflected in the record, presumptive service connection cannot be established. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Stated another way, presumptive service connection as due to Agent Orange exposure may only be presumed for those conditions determined by the Secretary to have a positive association to Agent Orange exposure. 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation, and that regulation does not include esophageal cancer. See also National Academy of Sciences Veterans and Agent Orange Update 2012 (issued in December 2013 and finding that presumption of service connection based on exposure to herbicides is not warranted for cancers of the digestive organs including esophageal cancer, stomach cancer, colorectal cancer, hepatobiliary cancers and pancreatic cancer). Accordingly, a relationship between the Veteran’s esophageal cancer and herbicide exposure cannot be presumed. Nevertheless, notwithstanding the presumption, a claimant can establish service connection for disability due to Agent Orange exposure with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994). Thus, service connection could be established on a direct basis. See 38 C.F.R. § 3.303(a). Unlike presumptive service connection, entitlement to direct service connection requires evidence of an in-service incurrence as well as medical evidence linking the disability to service. In the case at hand, the appellant links the Veteran’s esophageal cancer to Agent Orange exposure. Yet, verification of the Veteran’s in-service Agent Orange exposure has not been established. As such, an in-service incurrence is not yet established. Nor was the Veteran afforded a VA examination regarding his esophageal cancer prior to this death. However, the record suggests an in-service incurrence, his claimed Agent Orange exposure, and an association to service. As such, VA’s duty to assist is triggered, and a medical opinion is warranted. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As to the Veteran’s asserted Agent Orange exposure, the appellant asserts in a July 2018 statement that the Veteran informed her that he was stationed offshore in Vietnam but swam to shore, could see sand from the shore in the water and also interacted with other boats bringing and taking supplies from the shore. Additionally, in the February 2019 notice of disagreement, the appellant’s attorney asserts that in light of Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), categorizing “blue water” Vietnam Veterans as part of the presumptive list of exposure to Agent Orange, this Veteran is now presumed to have been exposed to Agent Orange since he was a “blue water” Veteran. The attorney further asserts that therefore, evidence is “not now needed of Veteran’s Agent Orange exposure.” The attorney concluded that the Veteran was entitled to benefits because he was presumed to have been exposed to AO. However, the Board notes that the decision in Procopio v. Wilkie, 913 F.3d at 1371 provides that veterans who “served in the 12 nautical mile territorial sea of the Republic of Vietnam” are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. In the case at hand, the Veteran does not meet the additional criteria of 38 U.S.C. § 1116 as esophageal cancer is not a listed condition in 38 C.F.R. § 3.309(e). However, the Board finds that per Procopio, remand is still warranted to determine if the Veteran’s service was within the 12 nautical mile territorial sea of the Republic of Vietnam. If so, an in-service incurrence of Agent Orange may be established, and the remaining issue of a medical nexus may be addressed. The matters are REMANDED for the following action: 1. Submit all relevant information to the Joint Services Records Research Center (JSRRC) necessary to render a formal finding as to whether the Veteran’s ship(s) served in the 12 nautical mile territory of the Republic of Vietnam during the Veteran’s time in Vietnam. 2. If Agent Orange exposure is established, then have an appropriate medical examiner review the claims file and address the Veteran’s esophageal cancer. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the appellant is competent to attest to the Veteran’s observable symptoms as well as what the Veteran told her about his symptoms. Any opinion provided must be accompanied by a rationale. Direct Service Connection: The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s esophageal cancer was caused by or is otherwise related to his active service, to include any verified in-service exposure to Agent Orange. The examiner is advised not to base any opinion on the rationale that esophageal cancer is not a presumptive condition. Gayle Strommen Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.