Citation Nr: 21023926 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-14 055 DATE: April 21, 2021 ORDER Dependency and Indemnity Compensation (DIC) benefits based on service connection for the cause of the Veteran’s death is denied. DIC benefits under 38 C.F.R. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in February 2003. The death certificate lists the immediate cause of death as adult respiratory distress syndrome due to sepsis, renal failure, and hypotension, and lists anemia and pneumonia as contributory conditions, but not causing death. 2. Service connection was not established for any disabilities during the Veteran’s lifetime. 3. Anemia and renal failure were not chronic in service, not continuous since service separation, and were not shown to a compensable degree within one year of service separation. 4. The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed during such service to herbicide agents, to include Agent Orange. 5. Renal Failure is not on the presumptive list of diseases associated with herbicide exposure. 6. The Veteran served at Camp Lejeune, North Carolina, from December 1965 to October 1966, so is presumed to have been exposed to contaminated water during service. 7. The cause of the Veteran’s death (adult respiratory distress syndrome, sepsis, renal failure, hypotension, anemia, pneumonia) was not incurred in service and is not etiologically related to service, including exposure to herbicide agents or contaminated water at Camp Lejeune during service. 8. The Veteran was never a prisoner of war (POW) and was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of at least five years immediately after discharge from service, or for 10 or more years prior to death. CONCLUSIONS OF LAW 1. The criteria for service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1112, 1310, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.307, 3.309, 3.312. 2. The criteria for DIC benefits under 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 from October 1965 to November 1969. The Veteran died in February 2003. The appellant is the surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 administrative decision from the Regional Office (RO), which denied recognition of the Appellant as the surviving spouse. Thereafter, a March 2014 decision recognized the Appellant as the surviving spouse, and an April 2014 statement of the case (SOC) denied on the merits DIC benefits based on service connection for the cause of the Veteran’s death and under 38 C.F.R. § 1318. In February 2019, the Board remanded the issues on appeal for additional development to associate outstanding VA treatment records with the claims file. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the February 2019 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Appellant nor the evidence has raised any specific contentions regarding the duties to notify or assist. DIC Legal Criteria Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. 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; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a 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. In order 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. Contributory cause of death is inherently one not related to the principal cause. 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. 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. 38 C.F.R. § 3.312; Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. Prior to his death, the Veteran was diagnosed with renal failure and anemia, which are recognized as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for the cause of the Veteran’s death. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309(e). “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In order to establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Renal failure is not listed as a disease for which presumptive service connection based on exposure to herbicides agents may be granted. 38 C.F.R. § 3.309(e). VA’s Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27, 630 (May 20, 2003). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953 and ending on December 31, 1987. Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (to be codified at 38 C.F.R. pt. 3). This presumption may be rebutted by affirmative evidence to the contrary. Id. The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: Kidney cancer, Liver cancer, Non-Hodgkin’s lymphoma, Adult leukemia, Multiple myeloma, Parkinson’s disease, Aplastic anemia and other myelodysplastic syndromes, and Bladder cancer. Id. As such, sepsis, renal failure, hypotension, anemia, and pneumonia are not diseases for which presumptive service connection based on exposure to contaminated water at Camp Lejeune may be granted. Id. Notwithstanding the foregoing presumption provisions for exposure to contaminated water at Camp Lejeune, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). 1. Service Connection for Cause of Death The appellant asserts that service connection for the cause of the Veteran’s death, particularly renal disease and sepsis, weas the result of herbicide agent exposure or exposure to contaminated water at Camp Lejeune during service. November 2016 representative brief. Initially, the evidence of record reflects that the Veteran died in February 2003. The death certificate lists the cause of death as adult respiratory failure due to sepsis, renal failure, and hypotension, and lists anemia, renal failure, and pneumonia as contributory causes. At the time of the Veteran’s death, service connection had not been established for any disability, to include the cause of death listed on the death certificate; therefore, a service-connected disability was not the cause of the Veteran’s death. The Board will consider whether the cause of the Veteran’s death was related to any disease, injury, or other incident of service. The Veteran served in the Republic of Vietnam from December 1965 to October 1966; therefore, in-service herbicide exposure is presumed. See DD Form 214, service personnel records. See 38 C.F.R. § 3.307(a)(6)(m). Certain diseases associated with exposure to herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3 309(e). Renal failure is not on the presumptive list of diseases associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, VA has determined that a presumption of service connection is not warranted for any disease not affirmatively named in the presumptive list. See 77 Fed.Reg. 47,924 (Aug. 10, 2012). Based on the law, the appellant cannot benefit from the herbicide nexus presumption, regardless of whether the Veteran was exposed to herbicides in service. Id. Notwithstanding the foregoing, the Veterans’ Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98 542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection on alternative bases. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). The Board has also considered the appellant’s contention that the Veteran’s renal failure and sepsis were caused by exposure to contaminated water at Camp Lejeune. The Veteran served at Camp Lejeune from December 1965 to October 1966, so is presumed to have been exposed to contaminated water during such service. See Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173. Renal failure an sepsis are not on the presumptive list of diseases associated with exposure to contaminated water at Camp Lejeune; thus, a nexus linking the Veteran’s cause of death due to renal failure and military service cannot be presumed under the law, regardless of the fact of the Veteran’s exposure to contaminated water during service. The Federal Circuit has held that, when a veteran is not found to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee, 34 F.3d at 1043-44. As such, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents and contaminated water at Camp Lejeune, but must also determine whether the current disability is otherwise the result of active service. After reviewing all of the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran’s cause of death (adult respiratory failure, renal failure, sepsis, hypotension, anemia, and pneumonia) did not have its onset during, and is not otherwise related to, active service. The weight of the evidence is against finding that symptoms of renal failure or anemia were “chronic” in service. The available service treatment records do not reflect any history, complaints, symptoms, diagnosis, or treatment for of a renal condition or anemia during service. The evidence does not indicate, and the appellant does not assert, that renal failure or anemia, to include symptoms thereof, developed during service. Post-service treatment notes also do not reflect that symptoms of a renal condition or anemia began during active service or were continuous since service separation. The Board next finds that the weight of the evidence is against finding that symptoms of renal failure or anemia were “continuous” since service separation. The appellant has not asserted that symptoms of a renal condition or anemia were present since service separation. Post-service treatment notes indicate that anemia and renal failure were first diagnosed in April 2001 and December 2001 respectively, 32 years after service separations. Post-service records also indicate that the Veteran had an extensive history of alcohol abuse, in addition to alcoholic liver disease, renal failure, gastrointestinal bleeds, and alcoholic pancreatitis. The treatment notes show that struggles with alcohol abuse continued in the years leading up to the Veteran’s passing. Post-service treatment notes do not reflect lay histories, for the purpose of treatment, of anemia or renal symptoms that began during active service or were continuous since service separation. See April 2001, December 2001, January 2002, December 2002 VA treatment records. This same evidence also shows that symptoms of renal failure and anemia did not manifest to a compensable degree within one year of service separation. On the question of direct nexus to service, the appellant has not submitted competent and credible evidence of a link between the cause of death (adult respiratory failure, renal failure, sepsis, hypotension, anemia, and pneumonia) and active service. While the post-service treatment records show an onset of renal failure and anemia many years after service, the treatment records do not indicate that the Veteran’s immediate or contributory cause of death is etiologically related to service. The Board has considered the appellant’s contention that the Veteran’s cause of death, particularly renal failure and sepsis, were related to exposure to Camp Lejeune contaminated water or herbicide agent exposure, in addition to the medical articles the appellant submitted in support of the claim. To the extent that the appellant asserts a direct nexus between the Veteran’s renal failure or sepsis and Camp Lejeune contaminated water or herbicide agent exposure, the Board notes that lay evidence may be competent on a variety of matters. However, the appellant’s lay statements are not competent to establish that exposure to contaminate water at Camp Lejeune or herbicide agent exposure caused the Veteran’s cause of death, renal failure or sepsis. The ability to assess a medical link between Camp Lejeune contaminated water or herbicide agent exposure and renal failure is not within the ordinary knowledge of a lay person, and the appellant has not demonstrated any experience with Camp Lejeune contaminated water or herbicide agent exposure that would have allowed her to recognize it during the Veteran’s service or assess an etiological link between the contaminant or herbicide agent exposure and the Veteran’s renal failure or sepsis. The appellant submitted medical articles from regarding renal failure, sepsis, and some of the health risks associated with Camp Lejeune contaminated ater. See November 2016 Web Articles. However, the web articles are of no probative value as they do not indicate a medical nexus between renal failure or sepsis and Camp Lejeune contaminated water. In July 2018 VA provided a medical opinion regarding the etiology of the Veteran’s cause of death, as it relates to the history of herbicide agent exposure and exposure at Camp Lejeune of contaminated water. The VA examiner in July 2018 considered the service and post-service treatment records leading up to the Veteran’s death. The examiner explained that the Veteran was 55 at the time of his death and long suffered with alcoholism from which he developed cirrhosis of the liver, pancreatitis, and recurrent GI bleeds. The Veteran also had substantial weight loss with a body mass index (BMI) of 17 just prior to death. His liver disease and cachectic state lead to immunosuppression which predisposed him to infection. The examiner noted that the cause of death was septic shock due to infection, and the septic process and shock lead to acute renal failure. See July 2018 VA examination report. The VA examiner opined that it is less likely than not that the immediate or contributory causes of death were due to herbicide exposure. The examiner reasoned that the Veteran had evidence of mild to moderate chronic kidney disease (creatinine 1.4-1.7) prior to death, but there is no known association with agent orange with chronic kidney disease except through diabetes. The examiner noted that the Veteran did not have diabetes or proteinuria. The acute renal failure occurred more than 30 years after exposure to agent orange, as such, the substantial weight of evidence leads to the conclusion that it was the infection that was the proximate cause of the Veteran’s death and acute renal failure, which was not related to herbicides. Id. The VA examiner also opined that the Veteran’s immediate and contributory causes of death, particularly renal failure and sepsis, were less than likely due to contaminated drinking water at Camp Lejeune. According to the Nation Academy of Sciences’ National research Council (NRC) and Agency for Toxic Substances and Disease Registry (ATSDR) analysis, no disease causal relationship with the chemical contaminants was established. The examiner further noted there was limited suggestive evidence of an association with renal toxicity, but this is speculative, and these chemical contaminants would be highly unlikely to cause acute renal failure more than 30 years after exposure. The substantial weight of the evidence leads to the conclusion that the Vet’s infection, resultant septic shock, and acute renal failure was related to his immunosuppression from alcoholic cirrhosis and was not related to the contaminated drinking water. Id. The Board finds the July 2018 VA opinion to be of significant probative value, as it is based on an accurate history of the Veteran’s medical condition, and is supported by a review of medical literature which does not support a probable causal relationship between the Veteran’s immediate or contributory cause of death, to include renal failure and sepsis, and exposure to herbicides and Camp Lejeune contaminated water. There is no medical nexus opinion of record that supports an etiological relationship between the Veteran’s cause of death and service, to include exposure to herbicide agents and contaminates at Camp Lejeune. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the appeal of service connection for the cause of the Veteran’s death; consequently, the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. DIC Benefits under 38 U.S.C. § 1318 VA pays DIC benefits to the surviving spouse of a deceased veteran who was in receipt of, or entitled to receive compensation, at the time of his death for a service-connected disability that was rated totally disabling if (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) if the disability was rated by the VA as totally disabling continuously since a veteran’s release from active duty and for at least five years immediately preceding death; or (3) if the veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b). For purposes of 38 U.S.C. § 1318, “entitled to receive” means that at the time of death, the veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the veteran’s dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (3) the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA rating decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments because the veteran’s whereabouts were unknown, but the veteran otherwise was entitled to continued payment based on a total service-connected disability rating; or (6) 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. The Board finds that the requirements of 38 U.S.C. § 1318 for an award of DIC benefits are not met. The service records do not reflect that the Veteran was a POW, so benefits cannot be granted on this basis. Furthermore, the Veteran separated from service in November 1969, and he died in February 2003. Preceding death, the service connection had not been established for any disability. Based on the Veteran’s combined disability rating of 0 percent, the Veteran’s separation from service in November 1969, and the date of death in February 2003, it is not legally possible to establish a 100 percent rating for five years immediately following service separation or for a 10-year period immediately preceding death to meet the eligibility requirement for DIC under 38 U.S.C. § 1318. For these reasons, DIC under 38 U.S.C. § 1318 is precluded. Per application of Rodriguez v. Peake, 511 F.3d 1147 (Fed Cir. 2008), the Board need not review whether there is any disorder of record for which service connection could have been established and then assigned a total rating for the appropriate period of time so as to warrant the award of DIC benefits under 38 U.S.C. § 1318, also known as “hypothetical entitlement.” See also Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009); 38 C.F.R. § 3.22. As the evidence shows the Veteran (i) was not continuously rated totally disabled for 10 years preceding his death, (ii) was not continuously rated totally disabled for five years since release from active duty, or (iii) was not a former prisoner of war, the criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met; therefore, the appellant’s claim for compensation under 38 U.S.C. § 1318 is without legal merit. As the law is dispositive of this claim, it must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Moore, Shanna 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.