Citation Nr: 20040140 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 17-25 994 DATE: June 11, 2020 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in September 2013; his death certificate lists the immediate cause of death as head and neck cancer. 2. The Veteran did not serve in the Republic of Vietnam; he was not otherwise exposed to herbicides agents during service. 3. At the time of his death, the Veteran was not service-connected for any disability. 4. The cause of the Veteran’s death is not shown to be causally or etiologically related to any disease, injury, or incident in service and head and neck cancer did not manifest within one year of his service separation. 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. §§ 1101, 1110, 1112, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from February 1973 to December 1973. He died at home in September 2013; the appellant is his surviving spouse. The appellant testified at a Travel Board hearing before the undersigned in August 2019. This matter was remanded by the Board in October 2019 for additional development. Service Connection To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran’s death is based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including malignant tumors, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As a general matter, establishing service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran died in September 2013. His death certificate lists his immediate cause of death as head and neck cancer. At the time of the Veteran’s death, he was not service-connected for any disability and no claims for entitlement to service connection were pending. The appellant contends that the Veteran’s head and neck cancer, the cause of his death, was caused by his service. Specifically, she maintains that the Veteran was exposed to herbicide agents while stationed at Fort Gordon, Georgia in 1973. See March 2014 Statement in Support of Claim, August 2019 hearing transcript. Alternatively, she maintains that the Veteran’s sarcoidosis, which he was treated for in service, essentially contributed to his death. See August 2019 hearing transcript. Service treatment records (STRs) show that the Veteran was evaluated for an abnormal chest X-ray and diagnosed with sarcoidosis in August 1973. Following service, VA treatment records show that the Veteran was diagnosed with head and neck cancer in January 2007. He died at home in September 2013; despite requests made, the appellant has not provided his terminal hospice treatment records or a release to obtain these records. After reviewing the claims file in February 2020, a VA examiner stated that the Veteran’s principal and contributory cause of death was oropharyngeal (head and neck) cancer. He opined that the Veteran’s head and neck cancer was less likely than not incurred in or caused by the Veteran’s service, to include the diagnosis of sarcoidosis in 1973. In support of this opinion, the examiner cited to medical literature discussing the epidemiology of head and neck cancer. The evidence does not suggest that service connection is warranted for the Veteran’s cause of death. Specifically, the Veteran’s service treatment records are silent for complaints or findings related to head and neck cancer. There is also no evidence of head and neck cancer manifested to a compensable level within one year of the Veteran’s December 1973 separation from service, or that it is otherwise related to his military service. Consequently, service connection for the death-causing disability on a direct basis (or on a presumptive basis under 38 U.S.C. § 1112) is not warranted. See also 38 C.F.R. § 3.303(b). As noted above, the appellant also maintains that the Veteran’s death from cancer was the result of exposure to herbicide agents while stationed at Fort Gordon during his service. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). The Veteran’s head and neck cancer involved the larynx, which is among the diseases presumed to be associated with exposure to certain herbicide agents (as a part of respiratory cancer). Id. Therefore, the critical question to be resolved in this case is whether the Veteran was exposed to herbicide agents in service. The Veteran’s service personnel records do not show that he had service in the Republic of Vietnam or its offshore waters, the Republic of Korea, or Thailand. The appellant does not claim that the Veteran served in any of these locations either. Instead, she contends he was exposed to herbicide agents while on guard duty at Fort Gordon in 1973. See August 2019 hearing transcript. The Veteran’s sister asserted that the Veteran had to guard a barricaded area that contained Agent Orange. Id.; August 2019 lay statement. The record shows the Veteran served at Ft. Gordon beginning July 4, 1973. He attended signal school and his military occupational specialty was field radio mechanic. During his service in the Army he had a record of misconduct and was counseled on several occasions. He was recommended for elimination from service and was ultimately discharged at Ft. Gordon on December 7, 1973. A review of the Department of Defense’s listing of herbicide use and test sites in the United States shows that herbicides were tested at Fort Gordon, Georgia. Government records show that Fort Gordon was a testing site for herbicides between July 15, 1967, and July 17, 1967, and on an unspecified date in 1968. See https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/usa.asp The Veteran’s service at Fort Gordon, however, did not coincide with the active testing done at that location, as the Veteran was not stationed there until 1973 – more than four years later. Therefore, because evidence shows that the Veteran was not present during herbicide testing at Fort Gordon, his exposure to herbicide agents is not demonstrated. While the Board acknowledges the lay statements about the Veteran’s terminal disease and its etiology, including linking it to in-service experiences believed to include exposure to herbicide agents, the Board cannot accept these statements as probative evidence. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, a determination of whether the Veteran was exposed to any specific herbicide agents and whether any such tangential exposure would suffice to cause the Veteran’s cause of death requires specialized training/knowledge and is not capable of resolution by lay observation. Notably, although the Veteran’s sister provided a statement that the Veteran served as a guard for barricaded areas containing Agent Orange in service, there is no indication in the record that she has any firsthand knowledge of this fact. As explained above, the official records from the Department of Defense do not show that herbicide agents were tested at Fort Gordon beyond certain dates in 1967 and 1968. Most recently, in May 2020 written argument, the appellant’s private attorney asserted that service connection for the cause of the Veteran’s death was warranted because “the Veteran did not possess the medical condition(s) that caused and/or contributed to his death prior to entry into the military.” While that may be true, for service connection to be established, it must also be shown that the claimed disability actually developed as a result of an event in service. As explained above, the record does not establish that the Veteran’s head and neck cancer was etiologically related to his in-service diagnosis of sarcoidosis nor it is shown that he was exposed to herbicide agents in service. The appellant’s private attorney does not offer any alternative theories of entitlement in his May 2020 written argument. (Continued on the next page)   In summary, there is no evidence that the disease that caused the Veteran’s death should be service-connected. Accordingly, and based on a review of the foregoing evidence as well as the applicable laws and regulations, the Board sympathetically finds that the preponderance of the evidence is against the appellant’s claim of service connection for the cause of the Veteran’s death. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the appellant’s claim for service connection, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. R. Fletcher, 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.