Citation Nr: 21029410 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-11 488 DATE: May 13, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT The Veteran was not service connected for any disability at the time of death; the preponderance of the evidence shows the Veteran was not exposed to herbicide agents while in Korea and no in-service event or injury occurred to establish service connection. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 101, 1101, 1112, 1113, 1131, 1310, 5107; 38 C.F.R. §§ 3.1, 3.5, 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from June 1970 to June 1979 and from June 1979 to June 1990, with foreign service in Korea. Regretfully, he passed away in April 2003. The Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the February 2017 Form 9, Substantive Appeal, the Appellant requested a Board hearing. In July 2020, the Board held a hearing in which the Appellant testified before the undersigned Veterans Law Judge. A copy of the Board hearing transcript (July 2020 Hearing Transcript) has been associated with the electronic claims file. This matter has a long procedural history. Most recently, this case was previously before the Board in September 2020 for further development. The September 2020 decision directed the RO to attempt to verify the alleged herbicide exposure while the Veteran was stationed in Korea. The development requested having been completed, the case is now appropriate for appellate review. Entitlement to service connection for the cause of the Veteran's death In 2003, VA was notified that the Veteran passed away in April 2003 from pneumonia due to complications of lung cancer. The Appellant contends the Veteran's death is a result of herbicide exposure in Korea during active duty and should be presumptively service connected. She asserts that even if the Veteran was in Korea in 1972, Agent Orange did not just stop leaking and he was still exposed. See July 2020 Hearing Transcript at 3-5. Dependency and Indemnity Compensation (DIC) benefits are 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. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability is deemed the principal, i.e., primary cause of death when the disability, singly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one that is not related to the principal cause. 38 C.F.R. § 3.312(c). In order for a service-connected disability to be determined as a contributory cause of a Veteran's death for compensation purposes, it must be shown that it: (1) contributed substantially or materially; (2) combined to cause death; and (3) aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Additionally, the law provides that, a veteran who, during active military, naval or air service, served between April 1, 1968 and April 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Moreover, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though 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 C.F.R. § 3.309(e). The list of diseases afforded this presumption includes lung cancer. Id. Alternatively, to establish service connection on a direct basis, a Veteran must show: a current disability; an in-service incurrence of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred during service, the so-called "nexus" requirement. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied to achieve direct service connection. Here, the Veteran's Certificate of Death states the cause was pneumonia that the Veteran had for two weeks due to lung cancer that the Veteran had for eight months prior to his death. At the time of his death, the Veteran was not service connected for any disability. Thus, the Board must consider the laws that otherwise govern establishing service connection for a disability in order to determine whether the Veteran should have been service connected for a disability listed on his death certificate. According to the Veteran's military personnel records establish his first deployment to Korea was in February 1973. This is outside of the presumptive period of herbicide exposure in Korea for service connection. Moreover, the Veteran was assigned to two units while in Korea. From February 1973 to April 1974, he was assigned to the 307th Signal Battalion located in Wonju, Korea. From October 1974 to January 1976, he was assigned to 305th Supply & Service Co located in Camp Red Cloud, Korea. Neither of these units were in or near the Korean DMZ as determined by the Department of Defense according to the M21-1. While the Appellant believes that the Veteran's death from complications of lung cancer was caused by his exposure to herbicide agents during active duty in Korea, there is no evidence to support her contention. The Veteran's military personnel records and the Veteran's death certificate contradict the Appellant's contention. The Veteran's military personnel records and evidence of record do not indicate that he served in any place that is included in the regulations so the Veteran does not meet the criteria for service connection on a presumptive basis. Therefore, the Board concludes the preponderance of the evidence is against a finding that the Veteran was exposed to herbicidal agents while on active duty in Korea and service connection on a presumptive basis is not warranted. Because the preponderance of the evidence is again the claim, the benefit of doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Alternatively, as mentioned above, service connection may be granted on a direct basis. The Veteran's April 2003 and July 2003 private treatment records confirm that the Veteran had been diagnosed as having lung cancer in August 2002. Accordingly, the Veteran had a current disability for the purpose of determining service connection for the cause of the Veteran's death. The issue before the Board is whether there was an in-service event or injury. Service treatment records are silent for any complaints of, treatment for, or diagnosis of lung cancer or associated symptomatology. The Veteran was diagnosed with lung cancer in August 2002, which was not within one year of the Veteran's separation from service. See 38 C.F.R. §§ 3.307, 3.309. As explained above, the evidence of record does not establish presumed exposure of herbicidal agents. The Appellant has not provided any evidence and there is no evidence of record to establish actual herbicidal exposure. Further, the Veteran's service treatment records do not show any in-service event or injury indicating exposure to herbicidal agents. The Veteran's February 1979 service treatment record noted the Veteran had a history of pneumonia and was diagnosed with an upper respiratory infection. The Veteran's January 1981 service treatment record showed the Veteran was diagnosed with pneumonia and was found to be doing better. The Veteran's Certificate of Death stated that the Veteran's pneumonia, which he had for a duration of two weeks, was related to lung cancer that the Veteran had for a duration of eight months prior to his death. In other words, the death certificate links the Veteran's pneumonia to lung cancer. Thus, the pneumonia that caused the Veteran's death was unrelated to the Veteran's January 1981 in-service pneumonia diagnosis. Accordingly, the Board concludes that the preponderance of the evidence weighs against a finding that an in-service event or injury occurred to establish service connection on a direct basis. Because the preponderance of the evidence is again the claim, the benefit of doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Appellant did not establish service connection based exposure to herbicide agents either presumptively or directly. The Appellant did not otherwise establish service connection on a direct basis. Accordingly, the Board concludes the preponderance of the evidence weighs against a finding service connection for cause of death and the claim must be denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Agarwal, 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.