Citation Nr: 20041889 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 16-33 539 DATE: June 19, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to death pension is dismissed. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to an herbicide agent in service. 2. The Veteran’s cause of death due to cardial respiratory arrest, due to or a consequence of gastric carcinoma, is etiologically related to herbicide exposure in service. 3. The award of service connection for the cause of the Veteran’s death provides a greater benefit than nonservice-connected death pension. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. 2. As the greater benefit is awarded, the claim for entitlement to death pension is dismissed as moot. 38 U.S.C. § 7105; 38 C.F.R. § 3.152. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran died in January 1997. The appellant is his surviving spouse. She testified before the undersigned Veterans Law Judge at a November 2019 Board videoconference hearing. The hearing transcript is of record. 1. Entitlement to service connection for the cause of the Veteran's death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability 38 U.S.C. §§ 1310. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a). A principal cause of death is one which, 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 one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312 (c). The appellant contends in November 2019 hearing testimony that the Veteran's death was due to Agent Orange exposure in service. Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin’s lymphoma, soft tissue sarcoma, Hodgkin’s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson’s disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309 (e). VA’s Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). The Veteran’s DD Form 214 and service personnel records show that he had active service in the Republic of Vietnam during the Vietnam Era and is, therefore, presumed to have been exposed to an herbicide agent in service. A Certificate of Death shows that the Veteran died in January 1997 at the Mount Sinai Hospital. A Confidential Medical Report from Mount Sinai Hospital, submitted by the appellant in December 2019, shows that the Veteran’s immediate cause of death was due to cardial respiratory arrest, due to or as a consequence of gastric carcinoma. As the cause of death due to cardial respiratory arrest due to gastric carcinoma are not included in the indicated diseases associated with exposure to an herbicide agent, presumptive service connection is not warranted. See 38 C.F.R. § 3.309 (e). Even though presumptive service connection is not warranted, the appellant is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). The Board finds that the Veteran’s gastric carcinoma is related to exposure to an herbicide agent in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The evidence in favor of the claim includes a December 2019 private medical opinion from Dr. C.K., a Professor of Radiation Oncology at the University of California Los Angeles. Dr. C.K. reviewed the record, to include service medical records, personnel records, and private treatment records, and noted the Veteran’s exposures to chemicals contained in Agent Orange and Agent Blue, to include dioxin and arsenic. He also noted possible asbestos exposure based on the Veteran’s military occupational specialty. While asbestos exposure has not been confirmed, as the Board is granting the appeal based on herbicide exposure, further development on the question of asbestos exposure is not warranted. Dr. C.K. opined that the Veteran’s exposures to dioxins and arsenic from herbicide agents at least as likely as not caused his gastric cancer, and consequently, his cause of death from metastatic gastric cancer. Dr. C.K. based his opinion on research on carcinogens contained in the herbicide agents, the Veteran’s age, which was younger than average for developing gastric cancer, and the absence of other risk factors for the Veteran’s development of gastric cancer. The Board finds that the opinion is probative and well-reasoned. For these reasons, the Board finds that the Veterans gastric carcinoma was related to herbicide exposure in service, and gastric carcinoma contributed substantially or materially to cause the Veteran’s death, or aid or lend assistance to the production of death. See 38 C.F.R. §§ 3.303 (d), 3.312(c). Accordingly, service connection for the Veteran’s cause of death is warranted. 2. Entitlement to death pension Because the Board has granted entitlement to service connection for the cause of the Veteran’s death, the remaining claim of entitlement to death pension benefits has been rendered moot as DIC based on service connection for cause of death is a greater award. 38 C.F.R. § 3.151 (a) (a claim may be considered for compensation or pension, but the greater benefit will be awarded unless the claimant requests otherwise). As such, the claim is dismissed. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christine C. Kung 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.