Citation Nr: 21072590 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 20-29 232 DATE: December 3, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is dismissed. 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 death certificate lists the immediate cause of death as apparent myocardial infarction, due to or as a consequence of ischemic heart disease, due to or as a consequence of hypertension. 3. 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, 1116, 1310, 5107(b); 38 C.F.R. §§ 3.5, 3.102, 3.303(a), 3.307, 3.309(e), 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 November 1966 to November 1970. He died and the appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) from an October 2018 decision. The appellant testified before the undersigned Veterans Law Judge (VLJ) at a December 2021 hearing. The Board notes that a transcript of the hearing has not yet been associated with the claims file. However, in light of the fact that the Board is awarding service connection for the cause of the Veteran's death (thus reflecting a full grant of the benefit sought) and the fact that there is no information in the hearing transcript that will affect the decision herein, the transcript is not necessary at this time. 1. Entitlement to service connection for the cause of the Veteran's death Pursuant to 38 U.S.C. § 1310, 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 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). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space 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 the Republic of 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 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). 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). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain diseases, including ischemic heart disease (including coronary artery disease, old myocardial infarction, and coronary bypass surgery), are presumptively service connected. 38 U.S.C. § 1116 (H); 38 C.F.R. § 3.309 (e). The Board finds, for the following reasons, that service connection for the cause of the Veteran's death is warranted. The Veteran died in August 2018. His death certificate lists the immediate cause of death as apparent myocardial infarction, due to or as a consequence of ischemic heart disease, due to or as a consequence of hypertension. There are no other conditions listed as contributing to the Veteran's death. 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 he flew in and out of Vietnam on various occasions while flying C-130 aircraft during the Vietnam War (see e.g,. a July 2005 VA Agent Orange program note). The Board points out that there is no specific reference to duty in Vietnam noted in the Veteran's available service personnel records. However, his service personnel records do confirm that he was stationed in Japan from approximately June 1967 to July 1969, during which he served as an aircraft mechanic and assistant crew chief on HC-130H aircraft. Also, the appellant submitted a June 2019 statement from one of the Veteran's fellow service members (E.S.), who reported that he witnessed the Veteran at the airport in Da Nang, Vietnam in approximately January or February 1969. E.S. elaborated on his statement during the hearing, indicating that he spoke briefly with the Veteran, his high school classmate. The Veteran was competent to report setting foot in Vietnam during the Vietnam War era and E.S. is competent to state he observed the Veteran in Vietnam. Also, there is no affirmative evidence to explicitly contradict his reports of having temporarily set foot in Vietnam, a fellow service member has confirmed that he witnessed the Veteran in Vietnam 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). 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. Moreover, as the Veteran's causes of death include a myocardial infarction and ischemic heart disease, and he is presumed to have been exposed to herbicide agents in Vietnam, service connection for the cause of the Veteran's death is warranted on a presumptive basis. 2. 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 United States Court of Appeals for Veterans Claims 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 be dismissed. 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.