Citation Nr: 21008862 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 07-05 701 DATE: February 18, 2021 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran is not shown to have served in the Republic of Vietnam, or to otherwise have been exposed to herbicide agents (Agent Orange) in service. 2. The Veteran died in March 2005; the immediate cause of his death was chronic lymphocytic leukemia (CLL) due to, or as a consequence of, metastatic prostate cancer. 3. The Veteran’s CLL and metastatic prostate cancer are not shown to have manifested during service or in the first post-service year and are not shown to have been related to a disease, injury, or event in service. 4. The Veteran’s death was not due to a service-connected disability and/or otherwise attributable to his military service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1961 to March 1964. In December 2015, the Appellant provided testimony before a Decision Review Officer (DRO). A transcript of that hearing is of record. The Board notes that the Appellant initiated an appeal as to the issue of entitlement to the cause of the Veteran’s death by way of a March 2006 notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2007, and the appeal was perfected by the timely submission of a substantive appeal. The appeal as to the cause of the Veteran’s death was never withdrawn, and since that time, the Appellant has advanced several alternative theories to support her claim. The Regional Office (RO) has taken appropriate actions to assist the Appellant in the development of her claim. From this, while numerous supplemental statements of the case (SSOCs) classify the claim as one of whether new and material evidence has been submitted, there has been no final decision regarding the claim. Thus, the evidence (received since the denial in 2006) need not be evaluated as “new and material” in the question of reopening a claim, but now only considered in its degree of probative value. By way of background, the Appellant’s claim for service connection for the cause of the Veteran’s death was denied by the Board in an October 2019 decision. The Appellant appealed the denial to the United States Court of Appeal for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Remand (JMR) vacating and remanding the Board’s October 2019 denial of service connection for the cause of the Veteran’s death. Specifically, the JMR indicated that the October 2019 Board decision failed to provide an adequate reasons or bases for its decision to deny the claim. The parties stated that the Board erred by (1) not adequately considering evidence related to the Veteran’s time at Aberdeen Proving Ground (APG) in finding that the Veteran was not exposed to herbicide agents, and (2) not adequately addressing the Appellant’s statement that VA already determined that the Veteran’s death was service-connected. Service Connection To establish service connection for the cause of the 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 U.S.C. § 1310; 38 C.F.R. § 3.312(a). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in the producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (wartime) and 1131 (peacetime); 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of a current disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include CLL and prostate cancer) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time post service (one year for cardiovascular disease and diabetes mellitus). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent (Agent Orange) unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to an herbicide agent during active military, naval, or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more, the Veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). CLL and prostate cancer are enumerated diseases. In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) reversed the Court’s holding in Haas v. Peak, 525 F.3d 1168 (Fed. Cir. 2008). In reversing the Court’s holding, the Federal Circuit found that “veterans who served in the 12-nautical mile territorial sea of the Republic of Vietnam meet the criterion of 38 U.S.C. § 1116(f) that they “served in the Republic of Vietnam,” regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam.” It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed the entire record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or does not show, as to the claim. 1. Entitlement to service connection for the cause of the Veteran's death The Veteran died in March 2005. The service treatment records (STRs) are negative for the Veteran’s terminal diseases of CLL and prostate cancer. At the time of his death, service connection had been established for a back disorder and plantar fasciitis. VA records reflect that CLL and metastatic prostate cancer, the causes of the Veteran’s death, were noted no earlier than 2002. In July 2002, the Veteran started hormone treatment for prostate cancer. VA medical records list a history of CLL since August 2003 that had been progressively worsening. A statement as submitted by a private social worker in February 2017 includes her corroborating opinion that the Veteran died of CLL. The Appellant’s primary theory of entitlement to the benefit sought is one of presumptive service connection under section 1116 (based on exposure to tactical herbicides). She has provided various theories as to how the Veteran was exposed to herbicides during his military service. See, e.g., May 2015 VA Form 21-4138 statement or her December 2015 DRO Hearing Testimony. In the discussion that follows, the Board will address each of her assertions. The Board initially addresses the question of whether service connection for the cause of the Veteran’s death may be granted based on a nexus to service, considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d) (direct service connection). There is no competent evidence of record that relates the causes of the Veteran’s cause of death to his service. The Appellant has not submitted such evidence, nor has she suggested that any such evidence exists. The Board recognizes that VA has not sought a medical advisory opinion as to whether the Veteran’s CLL or prostate cancer were otherwise related to service or a service-connected disorder. However, absent any competent evidence suggesting that such disabilities may be associated with his service, a medical nexus opinion addressing such question is not necessary. DeLaRosa v. Peake, 515 F.3d 1319 (Fed, Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). Except for the question of his exposure to herbicide agents, which is addressed separately below, there is no competent evidence that the Veteran’s CLL or prostate cancer, first documented approximately 38 years after service (beyond the one-year presumptive period, pertaining to chronic diseases), may otherwise be related to his service. 38 C.F.R. § 3.304(d). The Appellant’s primary contention is that the Veteran was exposed to tactical herbicides (specifically Agent Orange) in the course of his duties and as his terminal diseases of CLL and prostate cancer are presumptive diseases of Agent Orange exposure, service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. §§ 1116, 1310 and 38 C.F.R. § 3.307, 3.309(e), 3.312. As the Appellant is correct in stating that the Veteran’s terminal diseases are presumptive diseases of herbicide exposure, the case turns on whether it can be established that the Veteran was exposed to tactical herbicide agents in service. Initially, the Board finds that the Veteran did not serve in the Republic of Vietnam. Although he served on active duty during the Vietnam War Era, there is no indication of service in the Republic of Vietnam. Military personnel records do not document any service in the Republic of Vietnam or territorial seas (although it is vaguely claimed that he served on secret mission that might have taken him there. Such claims are not corroborated in the military personnel records and are further addressed below (See December 2015 DRO Hearing Testimony)). The Veteran’s DD Form 214 documents active duty service from March 1961 to March 1964 with a military occupational specialty (MOS) of recovery specialist. Military personnel records do not document service in the Republic of Vietnam. On the contrary, the Veteran was assigned to various duty stations in the United States, including stations in Kentucky, Georgia, Missouri, and Maryland; and his only foreign service was in Germany. The Appellant has submitted copies of the Veteran’s service personnel records as evidence in support of her argument that her husband served in Vietnam, Laos, or Korea. Upon review, however, these records do not indicate that such service occurred. The Board recognizes that one record includes a correction with an assignment to the “Far East,” but this entry clearly applied to a servicemember with the last name Powell. The Veteran’s enlisted qualification record does list “FSA L/K” above the Foreign Service but does not indicate service in Laos or Korea in the appropriate box. Instead, the record indicates that the Veteran served in Germany for six months which is consistent with the length of foreign service listed on his DD214. Instead, FSA most likely stands for the “Family Separation Allowance” and not a detail pertaining to the location of his service as such would have been recorded in the box immediately below this entry. The Board has reviewed the records submitted by the Appellant, but these records do not indicate service in Vietnam, Laos, or Korea. Thus, as he did not serve in the Republic of Vietnam, the herbicide presumption is not for application. It is also claimed by the Appellant that the Veteran was exposed to herbicides while stationed at the Aberdeen Proving Ground (APG) in Maryland. As discussed above, the Board initially denied the Appellant’s claim in an October 2019 decision. In the September 2020 JMR, the parties agreed that the Board did not adequately discuss Department of Defense (DOD) evidence related to the Veteran’s time at APG during service. As such, the Board was directed to adequately consider January 2018 DOD evidence in the statement of reasons and bases. Military personnel records verify that the Veteran was stationed at APG from June 16, 1961 to August 4, 1961 for training as a recovery specialist. As noted upon a document from September 2015, the Veterans Benefits Administration, Central Office, reviewed the record to determine if there was sufficient evidence to verify exposure to tactical herbicides during this period, but it was determined that the alleged exposure could not be verified. It was indicated that the DOD list did not show any storage, use, or testing of herbicides at the Veteran’s stations of service to not only include the APG in Maryland, but also Ft. Stewart, Georgia, Fort Knox Kentucky, Laos, or Korea, during the Veteran’s period of service from March 1961 to March 1964. In a November 2015 Memorandum, Joint Services Records Research Center (JSRRC) made a formal finding that they were unable to verify the Veteran’s Vietnam service and/or herbicide exposure. JSRRC indicated that all procedures and efforts to obtain needed military information had been exhaustive, and further attempts would be futile. The Memorandum listed the following efforts to obtain information necessary to verify exposure to Agent Orange outside of Vietnam: April 2015 in-person communication with Appellant and her representative (See April 2015 VA 21-0820, Report of General Information); May 2015 development letter to the Appellant requesting information on alleged Agent Orange exposure; May 2015 written response from the Appellant (See May 2015 VA 21-4138, Statement in Support of Claim); June 2015 written statement from the Appellant (See April 2015 VA 21-4138, Statement in Support of Claim); September 2015 email to Compensation Service requesting information on possible Agent Orange Exposure at APG; September 2015 Compensation Service response (See September 2015 Email Correspondence); service treatment and military personnel records; and DOD information on herbicide tests and storage outside of Vietnam. The Board acknowledges that the JSRRC Memorandum included an attachment titled, “Information from DOD on Herbicide Tests and Storage Outside of Vietnam” which lists APG in Maryland as a location where herbicides were used during the week of July 14, 1969 for a defoliation test along the shoreline. However, the Veteran was stationed at APG in Maryland in 1961 and separated from military service in 1964, prior to the APG listed project involving herbicide agents. To further address the Appellant’s contention, the record reflects that in September 2017, the RO requested verification that the Veteran participated in Chemical Biological Radiological Nuclear and Explosives (CBRNE) testing regarding his conceded time at APG in Maryland. In January 2018, DOD responded with a comment that “[t]his individual could be an update of RA15378576, CBTESTINDHISTOFF0000093, CBTESTINDECBC0000362, CBTESTINDECBC00000794, CBTESTINDECBC00000381, and CBTEST00864; however, a definite match cannot be determined due to limited information in CBTEST00873. The type of tests and exposures and the test dates are too different to make a match.” The Board acknowledges that DOD did not provide a definitive response, however, the preponderance of the evidence of record is against a finding that the Veteran participated in CBRNE testing and was exposed to herbicide agents. To this regard, the DOD response includes a list of CBRNE testing. Notably, testing was conducted in the 1950s and from 1963 to 1965, but the Veteran served at APG in Maryland in 1961, a timeframe outside the list. Because the Veteran’s participation in CBRNE testing could not be verified, and evidence does not show that CBRNE testing was conducted during the time period that the Veteran was stationed at APG in Maryland, herbicide exposure due to CBRNE is not established. The Board recognizes the Appellant’s request to remand the claim for DOD development, however, the Board finds that such remand would be futile. See November 2020 Third Party Correspondence. Here, as detailed above, in January 2018 DOD responded to the September 2017 RO verification request, provided comment, and supporting evidence. The DOD response is consistent with the November 2015 Memorandum in which JSRRC made a formal finding that it was unable to verify that the Veteran was exposed herbicides and further attempts would be futile. It also noted that there was limited information on the CBTEST00873, but that the type of tests and exposures, and test dates were too different to make a match to the Veteran. Specifically, the materials indicate that the “Data Source” for CBTEST00873 stemmed from exposure between March 17, 1953 and November 16, 1953, dates prior to the Veteran’s service. Based on the foregoing, the Board is satisfied with the January 2018 response from DOD and declines to remand the claim for additional development. In a May 2015 VA 21-4138, Statement in Support of Claim, the Appellant alleged that the Veteran was exposed to herbicides during missions where he was sent to undisclosed locations. He only found out where he was after he arrived, but she recalled that he said that he saw the effects of Agent Orange on vegetation. Specific dates as to these missions were not provided. The Appellant further reported that during the Veteran’s active service, he was once in Laos. He talked about Operation Ranch Hand. The Appellant notes that the military personnel records reflect that the Veteran had foreign service. She further points to a handwritten annotation of “9-3-62 FSA L/K” in section 29 of the Enlisted Qualification Record as reflecting service in Laos and Korea. However, the Veteran’s military personnel records only show foreign service in Germany in 1962 and not in Laos or Korea or anywhere in Southeast Asia. Moreover, as noted above, the DoD has indicated that tactical herbicides were not used, stored, or tested in Korea or Laos during the Veteran’s service. Thus, this argument also fails to show exposure to Agent Orange. An additional theory advanced by the Appellant to show that the Veteran was exposed to Agent Orange includes the assertion that he worked on C-123 aircraft. See December 2015 DRO Hearing Testimony. (The Board notes that VA has determined that a select group of Air Force Servicemembers, to include Reservists and active duty personnel, who had regular and repeated exposure to contaminated Operation Ranch Hand (ORH) C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members, were exposed to Agent Orange.) As the Veteran did not serve in the Air Force or was a member of the Air Force Reserve, the presumption under 38 C.F.R. § 3.307(a)(6)(iv) is not for application. Moreover, as already noted, it is clear that the Veteran did not serve in the Republic of Vietnam. Thus, he did not serve in any of the units or have regular and repeated exposure to contaminated C-123s used to spray Agent Orange in Vietnam. In this regard, as already stated, although the Veteran served during the Vietnam War Era, military personnel records do not document any service in the Republic of Vietnam or territorial seas. Consequently, the evidence does not currently establish that the Veteran was presumptively exposed to herbicide agents while working on C-123s in the Republic of Vietnam or any other country. As discussed above, in the September 2020 JMR, the parties agreed that the Board failed to consider all material evidence related to the representative’s contention that the Veteran’s death was service-connected. The Board was directed to address a July 2010 VA letter stating that November 20, 2009 is “the date VA determined the veteran’s death was service-connected.” The Appellant contends that service connection for the cause of the Veteran’s death is warranted because VA has already granted this benefit. See June 2011 NOD. In support of this contention, the Appellant referenced a July 2010 letter in which VA informed the Appellant that she was approved for Dependents’ Education Assistance (DEA) benefits (see November 2009 rating decision) because the Veteran was in receipt of a total and permanent disability at the time of his death (a total rating based on individual unemployability since February 2000). Although the letter states, in pertinent part, “November 20, 2009 the date the VA determined the veteran’s death was service connected” this statement was made in error because there is no corresponding finding. On the contrary, November 20, 2009 is the date of a rating decision in which the RO explicitly granted DEA benefits from March 15, 2005, the date of the Veteran’s death; and denied the claim for service connection for the cause of death. Further, the Appellant has not been awarded any monetary compensation for a grant of service connection for the cause of the Veteran’s death. As such, the Board concludes that the July 2010 letter erroneously stated that VA made a determination that the Veteran’s death was service connected, because the referenced rating decision explicitly denied the claim. Finally, as to the numerous articles included in the claim file regarding exposure to Agent Orange and/or the development of pertinent disorders, the submissions do not pertain to the specific issue at hand, are very general in nature, and do not address the specific facts of the Appellant’s claim before the Board. As this generic medical journal or treatise evidence does not specifically provide positive evidence that the Veteran was exposed to herbicides during his time in service, they are insufficient to establish the element of medical nexus evidence. See Sacks v. West, 11 Vet. App. 314 (1998). In sum, the Board finds that service connection for the Veteran’s cause of death pursuant to the theories of presumptive and direct service connection is not warranted. After a review of the record, the Board finds that the record does not contain sufficient probative evidence to demonstrate that the Veteran’s duties while on active duty exposed him to herbicides. The Board has considered the Appellant’s lay assertions; however, her lay statements are outweighed by the additional evidence of record as summarized above which do not show in-service herbicide exposure. As for whether the Veteran’s service-connected back disorder and plantar fasciitis contributed to his cause of death, the death certificate does not mention these disabilities or related symptoms. Notably, the claims file does not contain any evidence to support that the Veteran’s death was related to any service-connected disability. Further, the Appellant herself does not contend that any of these service-connected disabilities contributed to the Veteran’s cause of death. The Board has considered the Appellant’s contention that a relationship exists between the Veteran’s cause of death and his service, including alleged herbicide exposure. However, this case at hand is not the type of situation discussed in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) and a number of other related cases holding that lay evidence may be sufficient to establish this required nexus (i.e., link) between the Veteran’s military service and his disability and/or death. See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Although the Appellant is competent to report her observations on the Veteran’s medical conditions during his lifetime, she is not competent to render a medical opinion addressing the etiology of his conditions, without evidence showing that she has medical training or expertise. See 38 C.F.R. § 3.159(a)(1), (2); see also Jandreau at 1377 (Fed. Cir. 2007). As the condition which caused or contributed to the Veteran’s death was not shown in service, and the record contains no indication of a possible link between death and service, the Board finds that the preponderance of the evidence is against the Appellant’s claim for service connection for the cause of the Veteran’s death the appeal is denied. (Continued on the next page)   The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Appellant a favorable decision. 38 U.S.C. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.