Citation Nr: 21071017 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-13 774 DATE: November 29, 2021 ORDER Entitlement to service connection for cause of the Veteran's death is denied. FINDING OF FACT The preponderance of the evidence does not show that a disability causally related to service, either caused or contributed substantially or materially to the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1137, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to January 1971. The Veteran died in May 2013, and the appellant is their surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In August 2016, the appellant testified at a hearing before a Veterans Law Judge (VLJ). A transcript of this hearing has been associated with the record. This VLJ has since become unavailable to participate in the appeal. The Board sent a letter to the Veteran providing them with an opportunity to present testimony at a new hearing before a different VLJ. The appellant responded that they did not wish to appear at another Board hearing and asked the Board to consider the case on the evidence of record. This issue was previously before the Board in October 2018 and January 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for cause of death The appellant alleges that the Veteran's cause of death is due to a heart disorder related to herbicide exposure while on active-duty service. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal 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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A surviving spouse may also demonstrate the disability that caused the Veteran's death should have been service connected. 38 C.F.R. § 3.312. To establish service connection, an appellant must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); 38 C.F.R. § 3.303 (a). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii). The U.S. Court of Appeals for the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase "service in the Republic of Vietnam" includes the 12-nautical-mile territorial waters of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, overturning its prior decision in Haas v. Peake, 525 F.3d 1168 (2008); 38 U.S.C. § 116A(d). Additionally, VA amended its regulation governing individuals presumed to have been exposed to certain herbicide agents by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Effective June 19, 2015, the new regulation states that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. "Regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code (AFSC) indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 C.F.R. § 3.307 (a)(6)(v). A review of the Federal Register reveals that some C-123s were used to actually spray herbicide in Vietnam. 80 Fed. Reg. 35,246 (June 19, 2015). For this reason, the presumption of herbicide exposure under 38 C.F.R. § 3.307 (a)(6)(v) is limited to contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. The affected reserve units and dates of service for affected crew members were those assigned to Pittsburgh International Airport, Pennsylvania (1972-1982), Westover Air Force Base and Hanscom Field Air Force Base, Massachusetts (1972-1982), and Lockbourne/Rickenbacker Air Force Base, Ohio (1969-1986). The affected active duty units and dates of service for affected crew members were as follows: Hurlburt Auxiliary Field, Eglin Air Force Base, Florida (1970-1973), Langley Air Force Base, Virginia (1962-1963, 1970-1973), Luke Air Force Base, Arizona (1970-1973), Tainan Air Field, Taiwan (1969-1970), Howard Air Force Base, Panama (1970-1973), Osan Air Base, South Korea (1970-1973), and Clark Air Force Base, Philippines (1969-1970). The affected AFSCs are: flight engineer/aircraft loadmaster (1130-1149); aircrew life support specialist (1220-1229); and aircraft maintenance specialist/flight technician (4314-4359). See http://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnits.pdf. Thus, to warrant presumptive exposure based on contact with a C-123, a Veteran must have not only had duties at one of the above listed places, but also have had a duty that entailed that they regularly and repeatedly operated, maintained or served onboard C-123 aircraft. For Veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and 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). At the time of the Veteran's death, the Veteran was service-connected for headaches, a scalp scar, and an abdomen scar. The Veteran had also previously applied for and was denied service connection for a bilateral foot condition, a respiratory disorder, diabetes mellitus II, residuals of a traumatic brain injury, and right-hand numbness and tingling. The May 2013 death certificate indicates that the immediate cause of death was coronary artery disease, with underlying causes including diabetes mellitus, hypertension, and peripheral vascular disease. First, the Board finds that there was a current disability at the time of the Veteran's death. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). November 2004 private treatment records (PTRs) note a history of paroxysmal atrial fibrillation. December 2005 PTRs indicate a recent transient ischemic attack. August 2008 PTRs note well-controlled atrial fibrillation. September 2008 records indicate significant cardiac disease, and chronic atrial fibrillation. A diagnosis of coronary artery disease (CAD) is also noted, including in September 2008 and November 2010 PTRs. And September 2011 PTRs note that the Veteran's condition was status post left heart catheterization showing moderate diffuse CADs. Accordingly, the first element of service connection is met. Second, the Board finds that there is no evidence of an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's service treatment records (STRs) are silent for any complaints of or treatment for any heart conditions. Report of medical examinations upon entrance in January 1967 and mid-service in August 1968 indicate the Veteran's condition to be normal. At the December 1970 separation examination, the report of medical examination found the Veteran's condition to be normal, except the vascular system, noting left varicocele. In a December 2010 statement, the Veteran reported that they suspected that they were exposed to Agent Orange while on board the USS Independence. In a June 2013 statement, the appellant reiterated this statement. On the January 2014 notice of disagreement, the appellant stated that the Veteran had reportedly filled planes with herbicides. Beginning in March 2016, the appellant submitted numerous statements all reporting that the Veteran had told them that they taxied planes on and off the aircraft carrier which were loaded with herbicides going to Vietnam. At the August 2016 Board hearing, the appellant reported that they met the Veteran in 1971 who had heart issues at that time, which continued to worsen in the following decades. They explained that the Veteran had said that they were treated for atrial fibrillation in service, but did not seek subsequent treatment until the 1980s. In a September 2016 statement, the appellant asserted that the Veteran was exposed to Agent Orange from washing down the planes on the flight deck. These claims were repeated in an October 2018 statement where the appellant alleged that the Veteran was told that they would need to watch for heart trouble for the rest of their life upon separation. A review of the Veteran's military personnel records does not indicate that the Veteran was in Vietnam, and on the January 2014 notice of disagreement the appellant confirms that the Veteran did not set foot in Vietnam. The personnel records also corroborate the reports that the Veteran was onboard the USS Independence during service. While on remand, detailed logbooks for the USS Independence were added to the Veteran's claims file, and were reviewed to determine whether the ship entered the 12-nautical-mile territorial waters of the Republic of Vietnam. A June 2021 Memorandum was issued concluding that exposure to herbicides cannot be conceded as the evidence of record does not show that the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters. Regarding the assertions that the Veteran came into contact with planes that had been exposed to Agent Orange, the reports do not support these assertions. The Board notes the Veteran's military occupational specialty (MOS) as an Aircraft Mechanic, an MOS that may reflect military personnel who had regular and repeated exposure to contaminated C-123s. However, as previously noted, the presumption of herbicide exposure is limited to contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. The Veteran's military personnel records do not reflect that they worked on (or was ever a passenger on) C-123s. The record also does not reflect that the Veteran's unit was one of the affected active-duty units identified as servicing C-123s. See 38 C.F.R. § 3.307(a)(6)(v); 80 Fed. Reg. 35,246 (June 19, 2015). Importantly, as noted above, the regulation limits this presumption to those in the Air Force or Air Force Reserve. The Veteran served in the Navy. Moreover, this lay testimony that the Veteran either filled aircraft with herbicides, or washed off herbicide agent residue on the aircraft is outweighed by the absence of documentation of such exposure. The record does not otherwise show exposure to C-123s or exposure to herbicides while performing their duties. The Board finds that the Veteran was certainly competent to report that they worked on aircraft while on board the USS Independence as these statements were capable of lay observation. 38 U.S.C. § 1154(a) (2012); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). However, the Board does not find these statements that they were exposed to Agent Orange to be supported by the record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the presumption of herbicide exposure during service does not apply. The appellant submitted a May 2013 private medical opinion written by the Veteran's treating physician. They stated that they heard that the Veteran had worked on an aircraft carrier taxiing planes on and off the ship during the Vietnam era, and that they were concerned that the exposure to harmful chemicals and pesticides used in the area may have contributed to the multiple health problems, including bilateral lower neuropathy, impaired glucose tolerance, cervical degenerative disc disease, and bilateral ischemic optic neuritis. The RO obtained a VA medical opinion in June 2019 where the examiner opined that it is less likely than not that the cause of death was related to active-duty service. The examiner noted that STRs are silent for an atrial fibrillation condition, diagnosis or treatment. The examiner indicated that the first evidence of atrial fibrillation was found in the November 2004 PTRs noted above. They also directed attention to August 2008 PTRs noting a history of atrial fibrillation, and that the Veteran had a history of smoking a pack of cigarettes a day since the age of 18, along with a history significant of hypertension, severe arterial occlusive disease, peripheral vascular disease, hyperglycemia, tobacco abuse, and borderline diabetes. The examiner explained that literature review shows that atrial fibrillation is the most common arrhythmia lasting more than 30 seconds, and that its prevalence in the population increases with age. The examiner also noted that the risk factors for hypertension include advancing age, obesity and weight gain, family history, race, reduced nephron number, high sodium diet, excessive alcohol consumption, and physical inactivity. And the risk factors for peripheral artery disease include age, hyperlipidemia, smoking, hypertension, and diabetes. The RO obtained a new medical opinion in June 2021. The examiner stated that they reviewed the appellant's testimony that the Veteran had informed them of having a diagnosis of atrial fibrillation shortly after separation from service, and that they sought treatment for it in the 1980s. The examiner noted that the Veteran's STRs are silent for any heart condition, diagnosis, or treatment, including but not limited to an atrial fibrillation condition. Additionally, VA examinations in March 1972, March 1974, and November 1982 are silent for any heart condition. The examiner explained that the first noted evidence in the records of atrial fibrillation is in 2004, approximately 33 years after military service. The examiner also noted the appellant's testimony that when the Veteran sought treatment in the 1980s and was told that they had atrial fibrillation, the Veteran stated that this was the same thing they were told while in service. The examiner explained that this diagnosis in the 1980s would have been more than ten years after military service. Finally, the examiner concluded that after a thorough review of the record that it is less likely than not that the Veteran's atrial fibrillation had onset during service or is otherwise related to service. The Board affords the June 2021 VA medical opinion great probative value as it reflects a thorough review of the record and consideration of the appellant's lay testimony, and is supported by well-reasoned rationale. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301 (2008). The Board affords less probative value to the June 2019 VA medical opinion. Although it reflects a thorough review of the record, and is supported by well-reasoned rationale and relevant medical literature, it does not reflect consideration of the appellant's lay testimony. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). The Board affords low probative value to the May 2013 private medical opinion. Although as the Veteran's treating physician, they would have been knowledgeable about the Veteran's condition, the opinion does not appear to have been written following a review of the Veteran's claims file, and does not even specifically address the atrial fibrillation. Further, it does not provide a clear nexus opinion. See Fagan v. Shinseki, 573 F.3d 1282, 1288-90 (Fed. Cir. 2009) (noting that an inconclusive etiology statement may be properly described as "non-evidence" but that the remainder of the examination report must still be considered by the Board); Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (noting that a physician's opinion that a veteran's time as a prisoner of war "could" have precipitated the condition is too speculative to provide medical nexus evidence). The Board has also considered the Veteran and the appellant's statements in support of their claim. While they are competent to report on the symptoms, the Board finds the Veteran not competent to offer an opinion as to whether the heart disorder is related to any instance of service since the record does not indicate that they possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology heart disorder, and, consequently, their opinion on such matters is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Further, as the Veteran reported other ailments during service, and cardiac problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with their heart during service the Board would expect that they would have reported these problems to medical professionals. The Board notes that that the appellant submitted articles regarding the harms that Agent Orange exposure caused Veterans; however, the matter at hand was not whether Agent Orange was harmful, but rather whether the Veteran was exposed to it. The appellant also submitted statements from their children and a childhood friend detailing the love that the appellant had for the Veteran, and how the Veteran gave so much for this country. While sympathetic to these statements, the Board is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416 (1994). "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-3 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). The Board has also considered whether presumptive service connection can be established where there is evidence of continuity of symptomology of a chronic condition since service. See 38 C.F.R. § 3.309. However, the record of evidence does not show a diagnosis until many years following separation from active-duty service. Therefore, consideration based on presumptive service connection for continuity of symptomatology is not warranted. Although the Board is sympathetic to the appellant's claim and acknowledges the years of honorable service the Veteran provided, taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.