Citation Nr: 21004770 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-44 775 DATE: January 28, 2021 ORDER Entitlement to service connection for cause of death is denied. FINDING OF FACT 1. The Veteran died in January 2013. The causes of death was due to pulmonary embolism, deep vein thrombosis, venous stasis due to poor mobility, liver cirrhosis, diabetes mellitus, and renal failure. 2. At the time of his death, the Veteran was not service connected for any disability. 3. The Veteran was not a former prisoner of war (POW) and he was not in receipt of or entitled to receive compensation at the 100 percent rate due to service-connected disability for a period of at least five years immediately after his discharge from active service or for 10 or more years prior to his death. CONCLUSION OF LAW A disability incurred in or aggravated by active service did not contribute substantially or materially to the Veteran’s death. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION Unfortunately, the Veteran died in January 2013. Given such, prior to discussing the appeal at hand, the Board would be remiss if it did not recognize his outstanding service. The Veteran served in the United States Army from August 1965 to August 1968. He was clearly a credit to the United States Army and to his family, and his service to his country is greatly appreciated. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2013 and March 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the cause of the Veteran’s death. The appellant filed a notice of disagreement (NOD) in July 2014. A statement of the case (SOC) was issued in July 2015, and the appellant submitted her appeal to the Board in August 2017. The Veteran submitted an untimely VA Form 9 in August 2017. The Board has considered that a substantive appeal is not a jurisdictional requirement, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly, where appropriate. Percy v. Shinseki, 23 Vet. App. 37 (2009). In this case, the RO subsequently certified the issues to the Board and the Veteran was granted a Board hearing on the merits of the issues and was led to believe that these issues were on appeal to the Board. Accordingly, the Board will exercise its discretion to waive the untimeliness of the appellant’s substantive appeal and will address the merits of the claims. 1. Cause of Death Law and Analysis The appellant contends that the Veteran’s cause of death was a result of his military service. Specifically, the appellant contends that the Veteran was exposed to herbicide agents while deployed in Korea which resulted in his death. See June 2020 Hearing Transcript. 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; 38 C.F.R. § 3.5 (a) (1). A veteran’s death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, 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 inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a Veteran’s death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Here, the Veteran’s January 2015 death certificate reflects that he died on January [REDACTED], 2013, due to “Unknown, most likely Pulmonary Embolism,” “Deep Vein Thrombosis,” “Venous Stasis due to Poor Mobility,” and “Liver Cirrhosis.” Other significant conditions related to his death included “Cirrhosis; Diabetes Mellitus; Renal Failure;” and Deep Vein Thrombosis. See January 2013 Certificate of Death. At the time of death, the Veteran was not service connected for any condition. The Veteran’s service treatment records reflect no complaint, finding, or diagnosis with respect to pulmonary embolism, deep vein thrombosis, venous stasis due to poor mobility, liver cirrhosis, diabetes mellitus, or renal failure. A July 1968 separation examination revealed no related abnormalities. Review of the Veteran’s post service private and VA treatment records do not show that the Veteran’s causes of death are related to his military service. There is no competent credible medical evidence that any of the Veteran’s causes of death could be related to active service or evidence of herbicide exposure. The Board acknowledges that the appellant contends that the Veteran was exposed to herbicide agents due to his service during the Vietnam Era. Service connection may be established based on a relationship to herbicide exposure only if evidence demonstrates that a veteran served in the Republic of Vietnam, during the Vietnam era or was exposed to herbicides through some other military experience. Service in the Republic of Vietnam includes service actual “in country” service within the land borders of Republic of Vietnam, in the waters offshore, and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 101 (29) (A); 38 C.F.R. §§ 3.307 (a) (6) (iii), 3.313(a); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009); (holding that a veteran must have actually set foot within the land borders of Vietnam or been present in the inland waters of Vietnam to be entitled to presumptive service connection). A veteran who served on active duty in or near the Korean DMZ in an area which herbicides were known to have been applied between April 1, 1968 to August 31, 1971 shall be presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307(e). The Board notes the appellant’s assertions that the Veteran, during his deployment to Korea, was exposed to herbicide agents while working as a bridge specialist with the 526th Engineer Company (526 Company). The evidence does establish that the Veteran’s military occupational specialty (MOS) was a bridge specialist and during his deployment to Korea he was assigned to the 526th Company. See June 2020 Hearing Transcript, pg. 6; Military Personnel Records. However, the Board does not find any evidence that the Veteran’s deployment with the 526th Company resulted in herbicide exposure or that he was within the presumptive period to assume exposure to herbicides. The Board acknowledges the evidence submitted by the appellant that establishes that the Veteran, as a bridge specialist, may have been involved in building and hauling equipment and supplies. See October 2017 Email Correspondences, June 2020 Hering Transcript. Also, the appellant asserts any chemicals that were sprayed on the soil would have resulted in the Veteran’s exposure as he was working on the land and in the river. See id. Unfortunately, the Board does not find that there is any evidence to support a finding of herbicide agents being used in the area during the Veteran’s military service. Review of the Veteran’s claim file including, service treatment records, military personnel records, and service department records, while reflecting that the Veteran served on active duty in the Korean DMZ, there is no evidence that he was located in the Korean DMZ during the presumptive period of April 1, 1968 to August 31, 1971 to allow for presumptive service connection. The evidence shows that the Veteran was stationed in the Korean DMZ prior to April 1968. See Military Personnel Record. There is no evidence that the Veteran was within Vietnam during his military service. Therefore, the Board cannot find that he was exposed to herbicide agents during his tour of duty in Korea as he did not serve during the period of time for presumptive service connection. There is also no evidence that he was exposed to herbicide agents during his time in the military. As such, presumptive service connection is not warranted in this case. The evidence fails to establish that the veteran had a service-connected disability that was either the principal or a contributory cause of death, or that a disability incurred in or aggravated by active service did contribute substantially or materially to the veteran’s death, the appellant’s claim for entitlement to service connection for the cause of the veteran’s death is not warranted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.