Citation Nr: 21009493 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-53 495 DATE: February 22, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is dismissed. FINDINGS OF FACT 1. The Veteran’s death certificate lists the underlying cause of death as pancreatic cancer. 2. The evidence is at least evenly balanced as to whether the Veteran’s pancreatic cancer was caused by diabetes mellitus and diabetes mellitus thus contributed substantially and materially to death. 3. The Veteran was exposed to an herbicide agent on active duty. 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’s claim, the criteria for entitlement to service connection service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1116, 1154, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.307, 3.309, 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 1971 to December 1975. He died in July 2016. The appellant is his surviving spouse. She filed her application for Dependency and Indemnity Compensation (DIC) the month after her notice of intent to file was received in March 2017. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied service connection for cause of death and DIC benefits under 38 U.S.C. § 1318 in August 2019. The appellant appealed the August 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). Before the Court issued a decision, the parties filed a joint motion for remand (joint motion). The Court granted the joint motion in June 2020. It vacated the August 2019 Board decision and remanded the issues back to the Board for action consistent with the joint motion instructions. In November 2020, the Board remanded the case for an adequate medical opinion. Substantial compliance with the instructions for this specific opinion are only relevant to the issue of service connection for cause of death, which is granted herein, and therefore whatever inadequacies exist would be irrelevant as there is no prejudice to the appellant. Dependency and Indemnity Compensation 1. Service connection for Cause of Death Pursuant to 38 U.S.C. § 1310, Dependency and Indemnity Compensation (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); 38 U.S.C. § 1310(a); 38 C.F.R. § 3.5(a)(1). The death of a veteran will be considered as having been due to a service-related 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-related 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 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). 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). In this case, the Veteran was not service connected for any disabilities. He died in July 2016. His death certificate lists the immediate cause of death as pancreatic cancer. There are no other conditions listed as contributing to the Veteran’s death. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6). VA laws and regulations provide that, if a veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Although veterans who served in the Republic of Vietnam are presumed to have been exposed to herbicide agents, the Veteran served in Thailand. 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). In this case, the Veteran served in Thailand as a Security Specialist, where exposure to herbicides was more likely for those with such a military occupation that would have regular contact with the base perimeters. He is therefore presumed to have been exposed to an herbicide agent, i.e., Agent Orange. Furthermore, if a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including diabetes mellitus, type II, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a)(2)(H); 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for these veterans (presumed exposed to Agent Orange) or, alternatively, a veteran without appropriate service (as described above) but with competent evidence of herbicide agent exposure, who develops one of the identified diseases. The Veteran was diagnosed with diabetes mellitus years after service in 2016. Therefore, his herbicide agent exposure is presumed to have caused his diabetes mellitus. In a letter received in June 2018, the Veteran’s private family medicine doctor wrote that the Veteran’s diabetes existed prior to his fast-growing pancreatic cancer tumor. In a December 2020 opinion, a VA primary care physician wrote that epidemiologic studies describe an association between pancreatic cancer and diabetes mellitus, and there are competing theories to explain this association. He wrote there is one model which suggests an etiologic relationship whereby diabetes mellitus causes pancreatic cancer, and other models suggest diabetes may be a consequence rather than a cause of pancreatic cancer. He determined there is evidence supporting both of these models. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that an appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany. v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet App at 54. Based on the above, it is as likely as not that the Veteran’s fatal pancreatic cancer was caused by his diabetes mellitus, which was presumably caused by his presumed exposure to Agent Orange on active duty. Thus, the Veteran’s presumptively service-related diabetes contributed substantially and materially to his death from pancreatic cancer and was therefore a contributory cause of death. Consequently, service connection for the cause of the Veteran’s death is warranted. 2. Entitlement to DIC benefits under 38 U.S.C. § 1318 An application for DIC, Survivor’s Pension, and accrued benefits automatically includes claims for entitlement to benefits under 38 U.S.C. §§ 1310 and 1318. Therefore, the appellant had 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). (Continued on the next page)   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 be dismissed. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, Associate 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.