Citation Nr: 21075524 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 19-08 109 DATE: December 20, 2021 ORDER Entitlement to service connection for the Veteran's cause of death for purposes of entitlement to dependency and indemnity compensation (DIC) is granted. Dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died on October [REDACTED], 2017. The primary causes of death listed on a Supplemental Report of Cause of Death by the Arkansas Department of Health were cardiopulmonary failure, parotid gland cancer stage IV, malignant melanoma of the head and neck, and metastasis to the bone and pelvis. 2. The Veteran was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of 10 or more years prior to his death, the interval between his release from active duty and his death was more than five years, and he was not a prisoner of war. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the Veteran's cause of death for purposes of entitlement to DIC have been met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.312. 2. The criteria for entitlement to DIC benefits under the provisions of 38 U.S.C. 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1946 to August 1949 and the United States Air Force from August 1949 to October 1953 and from October 1953 to July 1969. The Veteran died in October 2017. The appellant is the Veteran's surviving spouse. Dependency and Indemnity Compensation Pursuant to 38 U.S.C. § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. See 38 U.S.C. § 1310; Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service-connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). In cases of service connection for the cause of death of a veteran, the first requirement of a current disability is met by the condition that caused the veteran's death. However, the last two requirements for a service connection claim must be supported by the record: (1) an in-service incurrence or aggravation of a disease or injury, and (2) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as AL amyloidosis, chloracne or other acneform diseases consistent with ischemic heart disease, diabetes mellitus, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, chloracne and respiratory cancers, and B-cell leukemias. 38 C.F.R. § 3.309(e). In short, if herbicide exposure is found on either an actual or presumptive basis, then service connection of a listed qualifying disability is all but guaranteed by statute. To determine whether a Veteran was exposed to herbicide agents, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to certain toxic herbicide agents, with the most common being "Agent Orange," unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Therefore, if a Veteran served in-country in Vietnam, they are entitled to a presumption of herbicide exposure, and need not prove actual exposure to herbicides. 1. Entitlement to service connection for the Veteran's cause of death for purposes of entitlement to DIC The appellant asserts that conditions that led to the Veteran's death, specifically parotid gland cancer, are attributable to service. After a review of all the evidence of record, the Board of Veterans' Appeals (Board) finds that service connection for the Veteran's cause of death is warranted. As an initial matter, active service in the Republic of Vietnam has been conceded. As such, exposure to herbicide agents is conceded. However, service connection for the Veteran's cause of death is not warranted on a presumptive basis because parotid gland cancer is not listed as a condition under 38 C.F.R. § 3.309(e) as a disease associated with exposure to certain herbicide agents. Nonetheless, service connection is still warranted if the evidence demonstrates that the Veteran's cause of death or contributing cause of death was proximately due to, the result of, or aggravated by his Agent Orange exposure or other in-service illness, event, or injury. See Combee v. Brown, 43 F.3d 1039, 1041-42 (Fed. Cir. 1994). Here, the Veteran was diagnosed with parotid gland cancer in June 2017 when a biopsy revealed an adenocarcinoma in the mass in his right parotid area. The medical evidence between July and October 2017 reveals this mass metastasized to other areas of the Veteran's body, including the lungs, spine, neck, and head. Next, the appellant submitted a private medical opinion in December 2017 from the Veteran's oncologist stating that the Veteran's parotid gland cancer is at least as likely as not caused by exposure to Agent Orange during service because Agent Orange exposure is known to be toxic to DNA and is associated with a wide range of malignancies. As such, the Board finds that the Veteran's parotid gland cancer is service-connected. Thus, the only question for the Board is whether the Veteran's parotid gland cancer played a role in his death. While parotid gland cancer was not listed on the Veteran's initial death certificate, a Supplemental Report of Cause of Death was issued in October 2021 listing stage IV parotid gland cancer as a primary cause of the Veteran's death. Therefore, the Board finds that service connection for the cause of death is warranted. In making this decision, the Board acknowledges the negative nexus opinion of a June 2018 VA examiner. However, the examiner did not provide a thorough supporting rationale for the opinion and, as such, the Board finds it lacks probative value. Therefore, the Board finds that the Veteran's parotid gland cancer was attributable to his active service and contributed to his death. Accordingly, service connection for the Veteran's cause of death is warranted and the claim is granted. 2. Dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C. § 1318. The appellant has also asserted that she is entitled to DIC benefits under the provisions of 38 U.S.C. § 1318. Under 38 U.S.C. § 1318(b), DIC benefits will be paid to the veteran's surviving spouse if the veteran's death was not the result of willful misconduct and, at the time of death, (i) the Veteran had been receiving or was entitled to receive compensation for a service-connected disability that was rated by VA as 100 percent disabling for at least 10 years immediately preceding death, (ii) he had been rated as 100 percent disabled since release from active duty and for at least five years immediately preceding death, or (iii) he had been rated as 100 percent disabled for a continuous period of not less than one year immediately preceding death if he was a former prisoner of war who died after September 30, 1999. 38 U.S.C. § 1318(b). The phrase entitled to receive means that, at the time of death, the veteran had a service-connected disability rated by VA as totally disabling, but was not actually receiving compensation because: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation to offset an indebtedness of the veteran; (3) the veteran had not received total disability compensation solely because of clear and unmistakable error in a VA decision; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); (6) VA was withholding payments because the veteran's whereabouts was unknown, but he was otherwise entitled to receive continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22(b). The Board concludes that the appellant is not entitled to DIC benefits under the provisions of 38 U.S.C. § 1318. Here, the evidence shows that the Veteran was never a prisoner of war, the interval between his separation from active duty and his death was more than five years, and he was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of 10 or more years prior to his death. Additionally, there is no evidence that the Veteran was entitled to receive compensation for service-connected disabilities rated totally disabling but was not in receipt due to one of the reasons listed in 38 C.F.R. § 3.22(b). By virtue of the foregoing, the Board finds that the law precludes the grant of DIC benefits under 38 U.S.C. § 1318. Therefore, the claim is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel