Citation Nr: 20040122 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 17-21 782 DATE: June 11, 2020 ORDER Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran’s death is granted. DIC benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in May 1993. 2. The cause of the Veteran’s death was refractory ventricular and ischemic cardiomyopathy. 3. The Veteran served on the USS Saratoga in May 1972 while it was located within the 12 nautical mile territorial sea of the Republic of Vietnam, so exposure to herbicide agent is presumed 4. The Veteran was never a prisoner of war (POW) and was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of at least five years immediately after discharge from service, or for 10 or more years prior to death. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the appellant’s favor, the criteria for service connection for cause of death have been met. 38 U.S.C. §§ 1110, 1116, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. 2. The criteria for DIC benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to December 1973. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision from the Pension Management Center, which denied service connection for the cause of the Veteran’s death and DIC benefits under 38 U.S.C. § 1318. The Board finds that the duties to notify and assist the appellant regarding the issue of service connection for cause of death have been rendered moot by the grant of service connection for the cause of the Veteran’s death, which is a full grant of the benefits sought on appeal. As for entitlement to DIC benefits under § 1318, the Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Appellant nor the evidence has raised any specific contentions regarding the duties to notify or assist. 1. Service Connection for Cause of Death The appellant contends that service connection for the cause of the Veteran’s death is warranted due to herbicide agent exposure during service. Specifically, the appellant’s representative argues that the Veteran’s cause of death, ischemic heart disease, was caused by exposure to Agent Orange while serving on the USS Saratoga, which came within 12 nautical miles of the territorial sea of Vietnam. The appellant testified that she met the Veteran in 1975, and they married in March 1977. The appellant testified that the Veteran did not have any heart problems when she met him. The appellant asserts that the Veteran first developed symptoms of a heart condition in August 1992, while attending their son’s ball game. The Appellant underwent workup by a cardiologist and was told that he experienced a heart attack during his son’s game and had 90 percent blockage of the heart. The Veteran eventually underwent heart surgery in May 1993, but died nine days later from complications of the heart surgery. The appellant testified that the Veteran was 43 years old when he died from ischemic heart disease. See February 2020 Board hearing transcript. Dependency and indemnity compensation (DIC) is 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. Service connection may be granted for the cause of a veteran’s death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran’s death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). 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. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it 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; Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309(e). “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). In order to establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. In Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), the United States Court of Appeals for the Federal Circuit held 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. Ischemic heart disease is a disease presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). The Veteran died in May 1993. The death certificate lists the cause of death as refractory ventricular and ischemic cardiomyopathy. See May 1993 Death Certificate. The Board finds the evidence of record is at least in equipoise as to the question of whether the Veteran was exposed to herbicide agents during service. Service personnel records show that the Veteran was attached to Fighter Squadron 31, which served aboard USS Saratoga, which was in the official waters of the Republic of Vietnam from May 1972 to January 1973. The deck logs show that the USS Saratoga conducted special operations on Yankee Station in the Gulf of Tonkin between May 1972 and August 1972, and was located within the 12 nautical mile territorial sea of the Republic of Vietnam on multiple occasions in May 1972. The DD Form 214 shows that the Veteran was a recipient of the Vietnam Service Medal and Vietnam Campaign Medal. See service personnel records, Deck Logbooks. As such, considering all the evidence of record, and resolving reasonable doubt in the appellant’s favor, the Board finds that the Veteran’s service on the USS Saratoga in May 1972, placed the Veteran within the 12 nautical mile territorial sea of the Republic of Vietnam and resulted in exposure to herbicide agents. 38 U.S.C. § 1154(a). Because ischemic cardiomyopathy (i.e., ischemic heart disease) is presumptively associated with herbicide agent exposure, service connection for the cause of the Veteran’s death, refractory ventricular and ischemic cardiomyopathy, as a result of herbicide exposure is warranted on a presumptive basis. 38 U.S.C. § 1116; 38 C.F.R. § 3.309, 3.312. Resolving reasonable doubt in the appellant’s favor, the Board finds that service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. DIC Benefits under 38 U.S.C. § 1318 VA pays DIC benefits to the surviving spouse of a deceased veteran who was in receipt of, or entitled to receive compensation, at the time of his death for a service-connected disability that was rated totally disabling if (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) if the disability was rated by the VA as totally disabling continuously since a veteran’s release from active duty and for at least five years immediately preceding death; or (3) if the veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b). For purposes of 38 U.S.C. § 1318, “entitled to receive” means that at the time of death, the veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the veteran’s dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (3) the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA rating decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments because the veteran’s whereabouts were unknown, but the veteran otherwise was entitled to continued payment based on a total service-connected disability rating; or (6) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22. The Board finds that the requirements of 38 U.S.C. § 1318 for an award of DIC benefits are not met. The service records do not reflect that the Veteran was a POW, so benefits cannot be granted on this basis. Furthermore, the Veteran separated from service in December 1973, and he died in May 1993. Preceding death, the Veteran had a disability rating of 0 percent from December 22, 1973 based on the service-connected right ear hearing loss. Based on the Veteran’s combined disability rating of 0 percent from December 22, 1973 for the single service-connected disability, the Veteran’s separation from service in December 1973, and the date of death in May 1993, it is not legally possible to establish a 100 percent rating for five years immediately following service separation or for a 10-year period immediately preceding death to meet the eligibility requirement for DIC under 38 U.S.C. § 1318. For these reasons, DIC under 38 U.S.C. § 1318 is precluded. Per application of Rodriguez v. Peake, 511 F.3d 1147 (Fed Cir. 2008), the Board need not review whether there is any disorder of record for which service connection could have been established and then assigned a total rating for the appropriate period of time so as to warrant the award of DIC benefits under 38 U.S.C. § 1318, also known as “hypothetical entitlement.” See also Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009); 38 C.F.R. § 3.22. As the evidence shows the Veteran (i) was not continuously rated totally disabled for 10 years preceding his death, (ii) was not continuously rated totally disabled for five years since release from active duty, or (iii) was not a former prisoner of war, the criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met; therefore, the appellant’s claim for compensation under 38 U.S.C. § 1318 is without legal merit. As the law is dispositive of this claim, it must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.