Citation Nr: 21003944
Decision Date: 01/25/21	Archive Date: 01/25/21

DOCKET NO. 17-66 636
DATE: January 25, 2021

ORDER

Entitlement to service connection for cause of death is granted.

Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is moot.

FINDINGS OF FACT

1. The Veteran’s cause of death by cancer was caused by his in-service herbicide exposure.

2. Based on the grant of the cause of death claim, the issue of DIC under 38 U.S.C. § 1318 is moot.

CONCLUSIONS OF LAW

1. The criteria for service connection for cause of death have been met. 38 U.S.C. §§ 1310, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.312.

2. The claim for DIC under 38 U.S.C. § 1318 is moot.  38 U.S.C. § 1318; 38 C.F.R. § 3.22.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from June 1965 to January 1973 and from November 1983 to August 1987.  He died in May 2016.  The Appellant is his surviving spouse.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  

In June 2020, the Appellant testified before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with claims file.

1. Entitlement to service connection for cause of death.

Benefits are payable to the surviving spouses of veterans whose deaths are due to service-connected disability. 38 U.S.C. § 1310.  Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran’s death are 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 service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).  

The Veteran served in the Republic of Vietnam, as conceded by the RO, and on this basis exposure to herbicide agents is presumed.  The record clearly shows that the Veteran died of an oral cancer. Although not a presumptive disease under38 C.F.R. §§ 3.307, 3.309, there is a medical opinion from the Veteran’s treatment physician that links the Veteran’s cause of death from cancer to the presumed herbicide agent exposure. There is no contrary opinion. Long standing case law provides that this is a permissible basis for granting. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The medical opinion from the treating physician is supported by adequate rationale. On this basis, the Board grants service connection for the Veteran’s cause of death.

2. DIC under 38 U.S.C. § 1318.

Based on the grant of service connection for the cause of death, the issue of entitlement to DIC under 38 U.S.C. § 1318 is moot, because the benefit sought has been granted. DIC under 38 U.S.C. § 1318 provides the same benefit granted above. The claim under 38 U.S.C. § 1318 is dismissed.

 

 

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. Wilson, 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.