Citation Nr: 21012753 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-06 014 DATE: March 5, 2021 ORDER The claim of entitlement to for Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151 (2018) is dismissed. The claim of entitlement to service connection for the cause of the Veteran’s death is granted. The claim of entitlement to DIC under 38 U.S.C. § 1318 (2012) is moot. FINDINGS OF FACT 1. At her February 2021 virtual teleconference hearing, prior to the promulgation of a decision in the appeal, the Veteran stated that she wished to withdraw her claim of entitlement to compensation for DIC under 38 U.S.C. § 1151 (2012); there are no questions of fact or law in this matter remaining before the Board. 2. The Veteran died in September 2013, and a contributory cause of death was hypertension (HTN). 3. The Veteran’s exposure to herbicide agents during service in the Republic of Vietnam during the Vietnam era is presumed. 4. Epidemiologic evidence supports an association between HTN and herbicide agent exposure, and the evidence is in equipoise as to whether the Veteran’s HTN that contributed to his death was related to his conceded exposure to herbicide agents during Vietnam service. 5. The grant of service connection for the cause of the Veteran’s death renders the appellant’s claim for DIC under 38 U.S.C. § 1318 (2018) moot. CONCLUSIONS OF LAW 1. The criteria for withdrawal of DIC under 38 U.S.C. § 1151 (2018) by the Appellant (or her authorized representative) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 2. The criteria to establish service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1310, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2020). 3. The claim for entitlement to DIC pursuant to 38 U.S.C. § 1318 (2012) is dismissed. 38 U.S.C. § 1318 (2018); 38 C.F.R. § 3.22 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to January 1972, to include service in the Republic of Vietnam. He died in September 2013, and the appellant is the Veteran’s surviving spouse. The Appellant i provided testimony before the undersigned Veterans Law Judge at a virtual teleconference hearing in February 2021. Entitlement to DIC under 38 U.S.C. § 1151 (2012). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2018). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2020). Withdrawal may be made by a veteran or by his or her authorized representative. Id. Here, the Appellant provided testimony at a virtual teleconference hearing in February 2021. While addressing preliminary matters, prior to providing testimony in support of her additional claims, she, through her representative, stated that she wished to withdraw her claim of entitlement to DIC compensation under 38 U.S.C. § 1151 (2018). Both the Veteran and his representative understood that in withdrawing the issue, the Board will dismiss the issue without making findings of fact or conclusions of law on the withdrawn issue. Hence, there remains no allegations of error of fact or law for appellate consideration on such claim. The Board does not have jurisdiction to review the appeal in the matter, and it must be dismissed. It also noted that with the grant of the claim below as to entitlement to cause of the Veteran’s death, the matter would be moot, but as the claim was withdrawn prior to that promulgation, it is formally withdrawn by the Board as above. Entitlement to Service Connection for the Cause of the Veteran’s Death. Service connection may be granted for the cause of a veteran’s death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran’s death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310 (2018); 38 C.F.R. §§ 3.303, 3.312 (2020); Ruiz v. Gober, 10 Vet. App. 352 (1997). The regulations under 38 C.F.R. § 3.312(c) (2020) also provide that: (1) Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. (2) Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. (3) Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. (4) There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. In order to be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995). For the reasons expressed below, the Board finds that service connection for the cause of the Veteran’s death is warranted. The death certificate shows that the Veteran’s cause of death was complications of acute pneumonia due to or as a consequence of post cerebrovascular accident (CVA) with complications. Other significant conditions contributing to death included HTN and hyperlipidemia. At the time of his death, service connection was in effect for posttraumatic stress disorder (PTSD). A total rating due to service-connected disabilities (TDIU) had been in effect since February 2001. As already established, on the issue of in-service incurrence, the Veteran is presumed to have been exposed to herbicide agents based on his service in Vietnam during the applicable time period. 38 U.S.C. § 1116(f) (2018); 38 C.F.R. § 3.307(a)(6)(iii) (2020). VA laws and regulations provide that, if a veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1) (2018); 38 C.F.R. § 3.309(e) (2020). 38 C.F.R. § 3.309(e) (2020) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). HTN is not one of the diseases listed under 38 C.F.R. § 3.309(e) (2020). As such, it cannot be presumed that the Veteran’s HTN is related to the conceded exposure to herbicide agents. In a December 2015 VA examination report, it was the examiner’s opinion that it was less likely as not that any of the Veteran’s causes of death were the result of his presumed in-service exposure to herbicides, to include Agent Orange. She noted that the Veteran died due to an acute stroke with complication of acute pneumonia. The literature did not support a definitive causal association between exposure to herbicides and his acute stroke. The Board notes that she did not specifically discuss the Veteran’s HTN which was a listed as a contributing factor on his death certificate. Since the Veteran’s death in 2013, medical evidence has been forthcoming that there may be an association between herbicide exposure and HTN. IN this regard, the Board notes that, the National Academy of Science (NAS), on November 15, 2018, upgraded HTN from “limited” evidence to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category. See National Academy of Science November 2018 update report titled, Veterans and Agent Orange Update 11 (2018). The Board finds the study provided by the National Academies of Sciences, Engineering, and Medicine (NAS), which is comprised of experts in field of science, is probative favorable evidence as to the issue at hand. Although service connection for HTN was not established prior to the Veteran’s death, more recent probative competent evidence shows that HTN and exposure to herbicides cannot be conclusively disassociated. As such, the Board must resolve reasonable doubt in the Veteran’s favor and finds that the Veteran’s HTN is related to his conceded exposure to Agent Orange in service. Moreover, it is indisputable that HTN contributed to the Veteran’s death. The death certificate clearly shows this. Therefore, based on the body of evidence as a whole, and resolving any reasonable doubt in the Veteran’s favor, the criteria to establish service connection for the cause of the Veteran’s death are met. 38 U.S.C. § 5107(b) (2018); 38 C.F.R. § 3.102 (2020). The Board is appreciative of the Veteran’s faithful, meritorious, and honorable service to our country. Entitlement to DIC under 38 U.S.C. § 1318 (2018). The Board notes that 38 U.S.C. § 1318 (2018) and 38 U.S.C. § 1310 (2018) provide separate and alternative methods of obtaining DIC benefits. As such, considering the fully favorable decision herein with respect to DIC benefits pursuant to 38 U.S.C. § 1310 (2018), the issue of entitlement under 38 U.S.C. § 1318 (2018) is moot and is dismissed. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.