Citation Nr: 21070363 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-24 951 DATE: November 23, 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 dismissed. FINDINGS OF FACT 1. During his lifetime, the Veteran was diagnosed with coronary artery disease (CAD) and diabetes mellitus, Type II. 2. The evidence is at least evenly balanced as to whether the Veteran was exposed to an herbicide agent during his period of service at the Nakhon Phanom Royal Thai Air Force Base (RTAFB). 3. The evidence is at least evenly balanced as to whether the Veteran's service-connected CAD and diabetes mellitus, Type II, contributed substantially or materially to his death. 4. Service connection for the cause of the Veteran's death is a greater benefit than DIC benefits under 38 U.S.C. § 1318. CONCLUSIONS OF LAW 1. 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, 1310, 5107(b); 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.312. 2. The claim for DIC benefits under 38 U.S.C. § 1318 is moot. 38 U.S.C. §§ 1318, 2307; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to September 1972. He died in March 2003. The appellant is the surviving spouse. This case came to the Board of Veterans Appeals (Board) from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for cause of death and entitlement to DIC under 38 U.S.C. § 1318. The appellant timely appealed both issues. In November 2021, the appellant testified at a Virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has not yet been associated with the record. As the instant decision results in a complete grant of the benefit sought, it is not necessary at this time. Entitlement to service connection for cause of death - Laws and regulations 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(a); 38 C.F.R. § 3.5(a)(1). In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). Service-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, even if the primary cause is unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases primarily causing death. 38 C.F.R. § 3.312(c)(3). 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 apply. 38 U.S.C. § 1310(a). A Veteran who was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases, including CAD and Type II diabetes mellitus, shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). In addition, to exposure within the Republic of Vietnam, exposure to Agent Orange and other herbicide agents has been noted to have occurred in various places outside of the Republic of Vietnam, including Thailand. "VA Compensation Service has acknowledged that there is 'some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.'" Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016) (quoting COMP. & PENSION SERV. BULL. (U.S. Dep't of Veterans Affairs, Washington, D.C.), May 2010, at 3). VA has determined that exposure to herbicide agents will be conceded for veterans whose duties placed them at or near the perimeters of certain Thailand military bases, including Nakhon Phanom Royal Thai Air Force Base (RTAFB), during the Vietnam era (February 28, 1961 to May 7, 1975), allowing for presumptive service connection of the diseases associated with herbicide exposure. VA based this determination of evidence contained on a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Specifically, if a veteran served as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure is to be conceded on a direct/fact-founds basis. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (a) Establishing service connected disabilities The Veteran was not in receipt of service connection for any disability during his lifetime, however, issues involved in a survivor's claim for death benefits will be decided without regard to any prior underlying service connection claim lodged by a Veteran or pending at the time of the Veteran's death. 38 C.F.R. § 20.1106; see Sheets v. Nicholson, 20 Vet. App. 463, 466 (2006) ("VA treats a claim for DIC as an entirely new and original claim and adjudicates it without regard to any prior disposition of issues during a veteran's lifetime"); see also Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007) ("[A] DIC claim is an original claim for benefits that is independent of any underlying service-connection claim lodged by a veteran or pending at the time of the veteran's death). Service records reflect that the Veteran served in the Air Force as an aircraft mechanic. His assignment history lists his duty station as Nakhon Phanom RTAFB from August 1970 until his September 1972 separation. The appellant has also provided details about the circumstances of his service. In her April 2017 substantive appeal and July 2015 notice of disagreement, she stated that she knew the Veteran served in Thailand on the flight line and that he reported being exposed to herbicide agents while doing so. The Veteran was competent to report about the circumstances of his service, and the appellant is competent to report the recollections about service given by the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007). The specific circumstances of his service must be considered, as demonstrated by service records and other evidence. 38 U.S.C. § 1154(a); 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); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (VA must give due consideration to pertinent lay evidence). Moreover, as noted, VA's Compensation Service has acknowledged that there is evidence of herbicide agent use on the Thailand base perimeters. Parseeya-Picchione, 28 Vet. App. at 177. The Court in Parseeya-Picchione, 28 Vet. App. at 176, also held that 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. There is no indication that the Veteran lacks credibility and his accounts about Thailand service are consistent with his service records. The appellant's lay assertions that the Veteran was exposed to herbicide agents while working on the flight line near the perimeter of Nakhon Phanom RTAFB is afforded significant probative weight. See id. The evidence is at least evenly balanced that the Veteran was exposed to an herbicide agent from his service in Thailand. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that he was exposed to herbicide agents. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to all points within a claim as well as its ultimate disposition). The medical evidence shows that he had diagnoses of CAD and diabetes mellitus, Type II. Thus, the Veteran has met the criteria for service connection on a presumptive basis under 38 U.S.C. § 1116 and 38 C.F.R. §§ 3.307 and 3.309 for CAD and diabetes mellitus, Type II. (b) Cause of death from service connected disabilities The next issue is whether CAD and diabetes mellitus, Type II that is related to service contributed substantially or materially to death or aided or lent assistance to death. For the reasons detailed below, the Board finds that service related CAD and diabetes mellitus, Type II contributed substantially or materially to the Veteran's death, and entitlement to service connection for cause of death is warranted. The Board will first review the evidence surrounding the Veteran's death and then provide an analysis considering the pertinent laws and regulations stated above. April 2000 private medical records reported that the Veteran had insulin dependent diabetes and history of CAD, as well as a remote history of myocardial infarction. It noted a history of dyspnea and congestive heart failure. May 2000 private medical records showed that the Veteran was hospitalized for about a week and half for CAD status post catheterization, severe mitral valve regurgitation and diabetes. The Veteran presented to the hospital with edema and increasing dyspnea on exertion. Clinical evaluation revealed atrial fibrillation and heart failure. He received cardiovascular intensive care unit (ICU) care where he was diuresed aggressively. He then underwent coronary artery bypass grafting and mitral valve repair. August 2002 private medical records reported that the Veteran presented with profound bradycardia and severe hypotension. He received ICU treatment for stabilization. The physician listed primary diagnosis of tachyarrhythmia due to atrial flutter and atrioventricular nodal reentry tachycardia. Secondary diagnoses included right heart failure, diabetes and CAD. He was given a medication regimen and instructed to follow up with primary care shortly. November 2002 private medical records showed that the Veteran was treated for heart failure. The physician reported it was likely secondary to pulmonary hypertension secondary to moderate chronic obstructive pulmonary disease (COPD). February 2003 private medical records reflected that the Veteran was being treated for congestive heart failure. He had a history of CAD with recent replacement of the aortic and mitral valves. He currently had congestive heart failure and gastrointestinal bleeding with unknown source. March 2003 private medical records summarized the Veteran's care preceding his death. He was hospitalized for multiple medical problems, including severe pulmonary hypertension with compensatory right sided heart failure and volume overload. He had mitral valve replacement with chronic anticoagulation as well as diabetes. He did not respond to cardiac therapy and developed gastrointestinal bleed from an unspecified location. After lengthy discussions, he requested that medical care cease. March 2003 death certificate stated that the Veteran died with an immediate cause of sepsis due to right heart failure and pulmonary hypertension. In her July 2015 notice of disagreement (NOD), the appellant reported that the Veteran suffered from diabetes mellitus, Type II and CAD. These medical conditions were well documented in his medical records. In an October 2015 letter, Dr. D stated that he treated the Veteran from 1991 through 2003. His medical problems included CAD and insulin dependent diabetes. He noted that the Veteran's service including working on the flight line while stationed in Thailand. In her April 2017 substantive appeal, the appellant stated that during her marriage to the Veteran she spent a great amount of time assisting him with management of his multiple disabilities that progressively worsened. She asserted that herbicide agent related diseases were contributory causes to his death. Turning to the analysis, the Board resolves reasonable doubt to find that the service related CAD and diabetes mellitus Type II, both of which affect vital organs, were contributory causes of the Veteran's death. 38 C.F.R. §§ 3.102, 3.312(c)(3). As a preliminary matter, 38 C.F.R. § 3.312(c) provides that contributory cause of death is inherently one not related to the principal cause. The Veteran's death certificate lists sepsis as the immediate cause of death with right heart failure and pulmonary hypertension as underlying causes. The listed causes appear separate from the service related disabilities. Thus, service related CAD and diabetes may be construed as unrelated to the principal causes of death to satisfy this contributory cause provision. The weight of the evidence indicates that the Veteran's CAD and diabetes were significant medical problems. The appellant is competent and credible in her assertions that the Veteran had longstanding health problems from diabetes and CAD preceding his death. Jandreau, 492 F.3d at 1376, n. 4. The medical evidence indicates the initial assessment of heart failure in 2000 occurred in connection with CAD, rather than pulmonary hypertension. Indeed, the medical records from 2000 indicate that the CAD diagnosis was related to a heart attack and required ICU care and surgical intervention. He was then regularly followed for heart disease. The initial medical reports also state that the Veteran's diabetes required insulin, which implies an active, widespread endocrine disease process. Since CAD and diabetes are active processes that affect vital organs, the regulations indicate that the Board must consider whether they rendered the Veteran less capable of resisting the effects of the pulmonary hypertension induced heart failure and sepsis that caused his death. 38 C.F.R. § 3.312(c)(3). The above medical background suggest that it is at least as likely as not that they did. Again, the initial ICU hospitalization and surgery in 2000 was for CAD, and the Veteran then required regular medical monitoring and a medication regimen for CAD. During treatment shortly before his death, medical records indicate that CAD and diabetes were medical complications that had to be accommodated when determining appropriate treatment. It is reasonable to infer that service related CAD and diabetes rendered the Veteran less capable of resisting the effects of the pulmonary hypertension induced heart failure and sepsis that led him to request palliative care and caused his death. Thus, the Board resolves reasonable doubt in the appellant's favor to find that service related CAD and diabetes mellitus, Type II rendered the Veteran materially less capable of resisting the effects of pulmonary hypertension induced heart failure and sepsis that caused his death. Id. The Board could remand the claim for a medical opinion, but a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order), aff'd sub nom. Gardner-Dickson v. McDonough, No. 2021-1462, 2021 U.S. App. LEXIS 33000 (Nov. 5, 2021) (Per Curiam Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). For the foregoing reasons, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's service related CAD and diabetes mellitus, Type II contributed substantially or materially to his death, by causing debilitating effects and general impairment of health rendering him materially less capable of resisting the effects of pulmonary hypertension induced heart failure and sepsis. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to DIC benefits under 38 U.S.C. § 1318 The appellant submitted a claim based on 38 U.S.C. § 1318, as an alternative theory of entitlement in seeking DIC benefits. In light of the award of service connection for the cause of the Veteran's death, the Board concludes that the appellant's DIC claim pursuant to 38 U.S.C. § 1318 is rendered moot. Under 38 U.S.C. § 2307, there are service-connected death burial benefits that are available under 38 U.S.C. § 1310, but not under 38 U.S.C. § 1318. See Mintz v. Brown, 6 Vet. App. 277, 282-83 (1994); see also Moffitt v. Brown, 10 Vet. App. 214, 224 (1997). Entitlement to VA benefits under 38 U.S.C. § 1310 is the greater benefit, and it has been granted in full. Therefore, no additional benefit (monetary or otherwise) can be gained under 38 U.S.C. § 1318, nor does any controversy remain. See Hornick v. Shinseki, 24 Vet. App. 50, 53-57 (2010); Timberlake v. Gober, 14 Vet. App. 122 (2000). Moreover, the Court has indicated that only if an appellant's claim of service connection for the cause of a veteran's death is denied under 38 U.S.C. § 1310 is VA required to also consider an appellant's claim under the provisions of 38 U.S.C. § 1318. See Timberlake, 14 Vet. App. at 134-35. Accordingly, in light of the award of service connection for the cause of the Veteran's death, the claim for entitlement to DIC under 38 U.S.C. § 1318 is moot, and this claim must therefore be dismissed. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.