Citation Nr: 21065406
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 18-28 284A
DATE: October 26, 2021

ORDER

Entitlement to service connection for renal cell carcinoma, for the purpose of accrued benefits, is granted.

Entitlement to service connection for the cause of the Veteran's death is granted.

FINDINGS OF FACT

1. The evidence is at least evenly balanced as to whether the Veteran served in the Republic of Vietnam during the Vietnam War era.

2. The Veteran's renal cell carcinoma was related to his exposure to herbicide agents (including Agent Orange) during service.

3. The Veteran's death certificate lists the immediate cause of death as aspiration pneumonia, due to or as a consequence of brain hemorrhage, due to or as a consequence of metastatic renal cell carcinoma.

CONCLUSIONS OF LAW

1. With reasonable doubt resolved in favor of the appellant, the criteria for service connection for renal cell carcinoma, for the purpose of accrued benefits, are met. 38 U.S.C. §§ 1110, 1116, 5101(a), 5107, 5121; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.1000.

2. With reasonable doubt resolved in favor of the appellant, the criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1116, 1310, 5107(b); 38 C.F.R. §§ 3.5, 3.102, 3.303(a), 3.307, 3.312.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1970 to April 1974. He died and the appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) from a June 2017 rating decision, in which the agency of original jurisdiction (AOJ) denied service connection for renal cell carcinoma for the purpose of accrued benefits and denied service connection for the cause of the Veteran's death.

The appellant requested a Board hearing before a Veterans Law Judge (VLJ) on her June 2018 substantive appeal (VA Form 9). A Board hearing was scheduled for a date in October 2021, but the appellant requested a postponement of the hearing. However, in light of the fact that the Board is awarding service connection for renal cell carcinoma for the purpose of accrued benefits and entitlement to service connection for the cause of the Veteran's death (thus reflecting a full grant of the benefits sought), a hearing is not necessary and the Board may proceed to adjudicate the issues on appeal.

As for characterization of the issues on appeal, the Board notes that the appellant initially only appealed the AOJ's denial of service connection for the cause of the Veteran's death. A statement of the case (SOC) addressing this matter was issued in April 2018 and this issue was certified to the Board in February 2019 (see a February 2019 "Certification of Appeal" form (VA Form 8)). However, on her June 2018 substantive appeal (VA Form 9), the appellant also listed the issue of entitlement to service connection for renal cell carcinoma for the purpose of accrued benefits and separately submitted a timely notice of disagreement (NOD) (VA Form 21-0958) with respect to this issue in June 2018. The AOJ issued an SOC addressing the accrued benefits matter in August 2019, but the appellant did not subsequently submit a substantive appeal. Regardless, it is clear from the appellant's actions and contentions (including the information provided on her June 2018 substantive appeal and June 2018 NOD), the fact that she has appealed the issue of entitlement to service connection for the cause of the Veteran's death, and the fact that the Veteran's renal cell carcinoma was a principal cause of death, that the appellant also intended to appeal the issue of entitlement to service connection for renal cell carcinoma for the purpose of accrued benefits to the Board. Moreover, as explained below, the appellant's appeal as to the renal cell carcinoma issue is being satisfied in full. Thus, although the appellant submitted a VA Form 9 which listed the accrued benefits issue prior to the AOJ's issuance of the August 2019 SOC, the Board will address the issue of entitlement to service connection for renal cell carcinoma, for the purpose of accrued benefits. See Archbold v. Brown, 9 Vet. App. 124, 132-33 (1996) (holding that the issuance of an SOC was not an absolute requirement for the acceptance of a substantive appeal in that case; although the veteran had not received an SOC after the filing of his notice of disagreement he, nevertheless, filed correspondence that the court found to meet the requirements for a substantive appeal). 

I. Accrued Benefits

An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000.

The statute governing accrued benefits was amended in January 2003 to eliminate the prior two-year restriction on the payment of accrued benefits. The revision to the statute applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). Accordingly, the two-year limit on benefits is not applicable in this case.

An application for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121 (c); 38 C.F.R. § 3.1000 (c). In order to support a claim for accrued benefits, the Veteran or other payee must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C. §§ 5101 (a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998).

Accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran's date of death. See 38 C.F.R. § 3.1000 (a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the Veteran's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000 (d)(4).

In this case, the appellant filed a claim for accrued benefits in January 2017. Thus, she filed a timely claim for accrued benefits as it was filed within a year of the Veteran's death. The evidence that will be considered by the Board is limited to that which was in VA's possession up to the date of the Veteran's death in January 2017.

Entitlement to service connection for renal cell carcinoma, for the purpose of accrued benefits

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 C.F.R. §§ 3.307, 3.309. Service "in the Republic of Vietnam" includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A (a).

In this case, the Veteran contended, among other things, that he had renal cell carcinoma which was caused by his exposure to herbicide agents in Vietnam. Specifically, he contended, in pertinent part, that he was exposed to herbicide agents when he was temporarily in Vietnam while en route to Thailand on temporary duty during the Vietnam War.

For the following reasons, the Board finds that the evidence is at least evenly balanced as to whether the Veteran is presumed to have been exposed to herbicide agents (including Agent Orange) during service, that he had a current diagnosis of renal cell carcinoma at the time of his death, and that this disability was related to his exposure to herbicide agents in service.

Medical records, including a September 2016 VA hematology/oncology clinic note, indicate that the Veteran was diagnosed as having renal cell carcinoma at the time of his death. Thus, current disability was demonstrated.

The Veteran contended, in pertinent part, that he was exposed to herbicide agents (including Agent Orange) when he temporarily set foot in Vietnam during the Vietnam War. Specifically, he reported that in approximately May 1972 he was sent on temporary duty from Holloman Air Force Base (Holloman) in New Mexico to Takhli Air Force Base (Takhli) in Thailand, and that he stopped at Tan Son Nhut Air Base in Vietnam while en route to Thailand (see e.g., an April 2016 statement from the Veteran).

The Board points out that there is no specific reference to temporary duty in Thailand or Vietnam noted in the Veteran's available service personnel records. However, his personnel records do confirm that he was stationed at Holloman and his DD Form 2014 indicates that he had 3 years of foreign service and received the Vietnam Service Medal. Also, the Veteran submitted a March 2016 statement from a fellow service member (P.M.W.), who reported that he served with the Veteran at Holloman and that he and the Veteran were both deployed to Takhli in May 1972.

The Veteran was competent to report setting foot in Vietnam during the Vietnam War era. Also, there is no affirmative evidence to explicitly contradict his reports of having temporarily set foot in Vietnam while en route to Thailand, a fellow service member has confirmed that the Veteran was deployed to Thailand during the Vietnam War, and the Veteran's reports appear to be consistent with the places, types, and circumstances of his service. See 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Moreover, the Board must consider the Veteran's statements along with the other evidence of record in determining whether he set foot in Vietnam. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). In Parseeya-Picchione, the United States Court of Appeals for Veterans Claims (Court) noted evidence that "it would be the exception [rather] than the rule where a flight [from a base not in Southeast Asia to a base in Thailand] would bypass [Ton Son Nhut Air Base in Vietnam]." Id. At 176. The Court referenced an email from an archivist at the Air Force Historical Research Agency, in which it was reported that "[a]s a general rule, military cargo aircraft, especially those engaged in 'airlines' would stop over at Ton Son Nhut Air Base, Republic of Vietnam en[ ]route to bases in Thailand. Very few of this sort of flight were made 'direct' to bases in Thailand from bases outside Southeast Asia."

Overall, the Board finds that the Veteran's reports of setting foot in Vietnam during the Vietnam War Era are credible and the evidence is at least evenly balanced as to whether he set foot in Vietnam. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, exposure to herbicide agents (including Agent Orange) in service is conceded on a presumptive basis. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

As for whether the Veteran's renal cell carcinoma was related to his herbicide agent exposure in service, D. Lewis, M.D. reported in a March 2016 letter that she was a board certified hematologist-oncologist, that she had been the Veteran's primary care provider since his November 2015 diagnosis of renal cell carcinoma, and that the Veteran had reported he was exposed to Agent Orange during service. Dr. Lewis explained that the Veteran had no family history that would have caused his cancer and no known risk factors that may have precipitated his cancer other than his exposure to Agent Orange during service. It is well documented that Agent Orange is a known group 1 human carcinogen. In Dr. Lewis' personal experience and in medical literature from U.S. agencies, there is suggestive evidence that exposure to Agent Orange during the Vietnam War is associated with an increase of cancers. Therefore, she opined that it was likely ("as likely as not") that the Veteran's renal cell carcinoma was caused by his exposure to Agent Orange.

The March 2016 opinion is based upon treatment of the Veteran, a review of medical literature, and consideration of the Veteran's reported history, and it is accompanied by a specific rationale which is consistent with the evidence of record and the circumstances of his service. Hence, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

For the foregoing reasons, the Board finds that the Veteran is presumed to have been exposed to herbicide agents (including Agent Orange) during service and there is a probative medical opinion that his renal cell carcinoma was caused by the herbicide agent exposure. There is no medical opinion that is contrary to this conclusion. Therefore, service connection for renal cell carcinoma, for the purpose of accrued benefits, is warranted.

II. Service Connection for the Cause of the Veteran's Death

Pursuant to 38 U.S.C. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997).

The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312 (b).

In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection (as set forth above) apply. 38 U.S.C. § 1310 (a). In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999).

The Board finds, for the following reasons, that service connection for the cause of the Veteran's death is warranted.

(CONTINUED ON NEXT PAGE)

In this case, the Veteran died in January 2017. His death certificate lists the immediate cause of death as aspiration pneumonia, due to or as a consequence of brain hemorrhage, due to or as a consequence of metastatic renal cell carcinoma. There are no other conditions listed as contributing to the Veteran's death. As explained above, the Board finds that the Veteran's fatal renal cell carcinoma was caused by herbicide agent exposure in service. Therefore, service connection for the cause of the Veteran's death is warranted.

 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Elwood, 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.