Citation Nr: 21001759 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-58 314 DATE: January 11, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) benefits, including service connection for the cause of the Veteran’s death, is granted. FINDINGS OF FACT 1. The Veteran died in April 2015. 2. His death certificate shows that his immediate cause of death was bladder cancer. 3. He served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 (i.e., during the Vietnam era); thus, it is presumed he was exposed to herbicides (including, notably, the dioxin in Agent Orange) while there. 4. His terminal bladder cancer is a disease that recently was added to the list of diseases presumptively associated with exposure to Agent Orange in Vietnam, and there is no medical or other probative evidence tending to refute this presumptive association; in fact, to the contrary, there also is a supporting medical opinion. CONCLUSION OF LAW The criteria are met for entitlement to DIC benefits, including for service connection for the cause of the Veteran’s death. 38 U.S.C. §§ 1101, 1110, 1310 (2012); 38 C.F.R. §§ 3.303, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from April 1966 to January 1969, including in the Republic of Vietnam. The Veteran died in April 2015. The appellant is his surviving spouse, so widow. This appeal to the Board of Veterans’ Appeals (Board) is from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, in support of this claim, the appellant-widow testified at a virtual hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Entitlement to DIC benefits, to include service connection for cause of death The widow-appellant contends that she is entitled to DIC benefits, especially to service connection for the cause of the Veteran’s death, because a service-connected disability caused or contributed substantially or materially to his death. DIC is payable when a Veteran dies from a service-connected disability or a disability that is entitled to service connection. See 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5 (a), 3.312. The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a).   A principal cause of death is one which, singularly 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 that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. Id. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or an injury; and (3) evidence of a nexus between the disease or injury in service and death. See also more generally 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). As particularly relevant here, the law also provides that diseases presumptively associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been presumptively incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). A veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975 (Vietnam era), unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for an herbicide-related disease under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicide agents is not presumed in such instances. However, once exposure to herbicide agents has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. 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 herbicide agents 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 herbicide agents 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, “early-onset” 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). Notably, however, the National Defense Authorization Act for Fiscal Year 2021 has added three disorders to this list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include parkinsonism, bladder cancer, and hypothyroidism to this list of conditions where statistically significant association exists between exposure to herbicide agents and subsequent development. That addition notwithstanding, to the extent the presumptive provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e) do not apply, a Veteran or other claimant still may establish entitlement to service connection by having evidence demonstrating that the disease being claimed was in fact “incurred” during service, i.e., by tracing causation to a condition or an event during service or on a presumptive basis for a cancer (malignant tumor) manifesting to a compensable degree within one year after service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). See also Stefl v. Nicholson, 21 Vet. App. 120 (2007); and McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which in actuality involved exposure to radiation, are nonetheless equally applicable to claims based, instead, on exposure to Agent Orange). Turning now to this case at hand, the Veteran served in the Republic of Vietnam and, in fact, resultantly earned two decorations for his service there – namely, the Vietnam Service Medal and the Vietnam Campaign Medal. See Form DD 214, March 1969. As such, it is presumed he was exposed to herbicide agents, including the dioxin in Agent Orange, while there. The medical records as well as his death certificate confirm the cause of his death was bladder cancer. Thus, as bladder cancer is now on the list of diseases presumed to be caused by exposure to herbicide agents, the Board finds that his bladder cancer, and consequently his unfortunate death, was caused by his service (i.e., this service-connected disease). Because his terminal bladder cancer, as a result of this decision, has been determined to be a service-connected disability, and it is found to be the principal cause of his death, the appellant-widow is entitled to derivative DIC benefits based on service connection for the cause of his death. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.