Citation Nr: 21024776 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 18-35 201 DATE: April 26, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to dependency and indemnity compensation (DIC) under 1318 is dismissed. FINDINGS OF FACT 1. The Veteran died in February 1992; the cause of death was cancer of the esophagus. 2. The Veteran’s cancer of the esophagus was of service origin and the principal cause of death. 3. Entitlement to DIC benefits under 38 U.S.C. § 1318 is moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.312(a) (2020). 2. The claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1952 to March 1973. The Veteran died in February 1992. The Appellant is the Veteran’s widow. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a July 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The claim for service connection for the cause of the Veteran’s death was originally denied in November 2006. Additional service department records were associated with the claim file that existed and had not been associated with the file when VA decided the claim in November 2006. As such, the Board will reconsider the claim. 38 C.F.R. § 3.156(b). Entitlement to service connection for the cause of the Veteran's death The Veteran died in September 1992. His death certificate lists the immediate cause of death as cancer of the esophagus. At the time of his death, service connection was not in effect for any disability. The Appellant asserts that the Veteran’s death from cancer of the esophagus was the result of exposure to herbicides during his service in the Republic of Vietnam (RVN) and to contaminated drinking water while stationed at Camp Lejeune. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38C.F.R. §3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38C.F.R. §3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran served in RVN from December 1966 to December 1967. Although the Veteran’s service in RVN is established and his exposure to herbicides is presumed, esophagus cancer is not subject to presumptive service connection based on Agent Orange exposure. See 38 C.F.R. § 3.309 (e). The Veteran was stationed at the United States Marine Corps Base Camp Lejeune in North Carolina, during the requisite time period and thus he is afforded the presumptions 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. 38 C.F.R. § 3.307 (a)(7). However, esophagus cancer is not a presumptive disease associated with exposure to contaminated water at Camp Lejeune. 38 C.F.R. § 3.309 (f). As the Veteran’s esophagus cancer is not included in the list of enumerated diseases associated with herbicide exposure or exposure to contaminated water at Camp Lejeune, service connection on a presumptive basis for the disability under this theory is not applicable. However, the lack of unavailability of a presumption does not mean that the disability cannot be granted on a direct causation basis as discussed below. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee, supra. In support of the appeal, the Appellant submitted a medical opinion from Dr. CDR dated in January 2019. Dr. CDR, after reviewing the claim file, including Veteran’s medical records and service department records, opined the Veteran’s esophageal cancer was the direct result of his exposure to contaminated water at Camp Lejeune and herbicides while stationed in RVN. In support of the opinion, Dr. CDR cited to medical treatise evidence, studies, and findings from the World Health Organization, the U.S. Environmental Protection Agency, and the American Cancer Society. The opinion is probative as it is based on an accurate factual premise and is supported by adequate rationale. The death of a Veteran will be considered as having been due to a service- connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). In determining whether a 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. 38 C.F.R. § 3.312 (c)(1). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Dr. CDR opined that the Veteran’s exposure to toxins in the water at Camp Lejeune and exposure to Agent Orange in RVN, substantially or materially aided in his development of esophageal cancer, ultimately resulting in his death. There is no other medical evidence of record that refutes or contradicts this opinion. Accordingly, the Board finds that the Veteran’s death was caused by esophageal cancer that was related to his period of active service, and the Appellant’s claim for service connection for the cause of the Veteran’s death is granted on this basis. 38 C.F.R. §§ 3.307, 3.309, 3.312. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 DIC benefits are payable under certain circumstances if the service member was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability that had been totally disabling for a specified period of time. DIC benefits granted to a surviving spouse under 38 U.S.C. § 1318 are paid in the same manner as if the veteran’s death were service connected. 38 U.S.C. § 1318 (a). The Board’s grant of service connection for the cause of the Veteran’s death recognizes that a service-connected disability contributed materially to death of the service member. Only if an Appellant’s claim for service connection for the cause of the Veteran’s death under 38 U.S.C. § 1310 is denied does VA have to also consider an appellant’s DIC claim under 38 U.S.C. § 1318. Timberlake v. Gober, 14 Vet. App. 122 (2000). In light of the grant of service connection for the cause of the Veteran’s death, the claim of entitlement to DIC under 38 U.S.C. § 1318 is moot, requiring dismissal of this aspect of the appeal. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.