Citation Nr: 21030256 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 14-41 098 DATE: May 18, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to burial benefits greater than $1,000.00 is granted. FINDINGS OF FACT 1. The Veteran died in October 2011. His immediate cause of death was CREST syndrome/scleroderma; other conditions contributing to death were bladder cancer and prostate cancer. 2. The Veteran served in the Republic of Vietnam from December 1968 to November 1969 and is presumed to have been exposed to herbicide agents (Agent Orange). 3. The Veteran's bladder cancer, which contributed to his death, is presumptively related to his in-service herbicide exposure. 4. The Veteran was buried at a private cemetery. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310 (2012); 38 C.F.R. § 3.303, 3.312 (2020). 2. The criteria for burial benefits greater than $1,000.00 have been met. 38 U.S.C. §§ 2302, 2303 (2012); 38 C.F.R. §§ 3.1700-3.1713 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to December 1969. He died in October 2011. The Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2012 and September 2014 rating decisions. In a May 2019 decision, the Board denied claims for service connection for the cause of death, death pension, and burial benefits greater than $1,000.00. The Appellant appealed the May 2019 decision to the U.S. Court of Appeals for Veterans Claims (Court), and in June 2020 the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacated and remanded part of the May 2019 decision that denied entitlement to service connection for the cause of the Veteran's death, and burial benefits greater than $1,000.00, to the Board for readjudication consistent with the JMPR. The Appellant did not appeal the denial of death pension benefits. 1. Entitlement to service connection for the cause of the Veteran's death The cause of a veteran's death will be considered to be due to a service-connected 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). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). 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). Determinations as to whether service connection may be granted for a disability that caused or contributed to a Veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain "chronic" disabilities such as malignant (i.e., cancerous) tumors may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year after discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). This presumption is rebuttable by affirmative evidence to the contrary. Service connection for certain diseases also may be granted based on presumed exposure to certain herbicide agents (including Agent Orange), even though there is no record of such disease during service. See 38 C.F.R. § 3.309(e). Presumed exposure to an herbicide applies to a Veteran who had active military, naval, or air service for at least 90 days during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. At the time of the prior May 2019 Board decision, the list of disease presumptively associated with exposure to herbicide agents did not include bladder cancer. However, Section 9109 of the National Defense Authorization Act of Fiscal Year 2021 added three diseases to this list: parkinsonism, bladder cancer, and hypothyroidism. The addition of which will be codified at 38 U.S.C. § 1116(a)(2)(J). And, although this law did not contain an effective date and has not yet been codified, in the absence of such guidance it must be presumed the law became effective upon its January 1, 2021 enactment. See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) ("It is well established that, absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment"). The Veteran died in October 2011 at the age of 63. His death certificate lists the immediate cause of death as CREST syndrome/scleroderma. Bladder cancer and prostate cancer are listed as other significant conditions contributing to death. This discussion will focus on whether service connection is warranted for bladder cancer. Given, that the death certificate lists bladder cancer as a contributory cause of the Veteran's death, the first element of service connection, a current disability, has been established. With respect to in-service incurrence, the Board finds that the evidence demonstrates that the Veteran is presumed to have been exposed to tactical herbicide agents (Agent Orange) while stationed in the Republic of Vietnam. The DD Form 214 shows that the Veteran is a recipient of both the Vietnam Service Medal and Campaign Medal. Military personnel records document service in the Republic of Vietnam from December 1968 to November 1969. Thus, exposure to herbicides is presumed. As bladder cancer has been recognized as a disease associated with exposure to herbicide agents, the Board finds that service connection for bladder cancer is warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309. Accordingly, service connection for the Veteran's cause of death is granted. 2. Entitlement to burial benefits greater than $1,000.00 Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which included burial allowances for service-connected and non-service-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the existing regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new regulations renumbered as 38 C.F.R. §§ 3.1700 through 3.1713. See 79 Fed. Reg. 32,653-32,662 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713). The final rule is applicable to claims for burial benefits pending on or after July 7, 2014. The Appellant's claim for burial benefits has been pending since February 2012, i.e., before the effective date of the rule change on July 7, 2014. Generally, when a regulation changes during the pendency of a claim, VA may consider both the new and former provisions, with due consideration to the effective date of the changes and apply the most favorable criteria (subject to effective date rules). However, the provisions potentially applicable to the facts of this case have undergone no substantive changes. Both versions are equally favorable. A burial allowance is payable under certain circumstances to cover the burial funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C. § 2302; 38 C.F.R. §§ 3.1704-3.1706. If a Veteran's death is not service-connected, a sum, not exceeding $300.00, may be made paid towards funeral and burial expenses of the deceased veteran and the expense of preparing the body and transporting it to the place of burial, subject to certain specified conditions. 38 U.S.C. § 2302; 38 C.F.R. §§ 3.1705(a), 3.1706(a). Here, the Appellant has already been awarded $300.00 in nonservice-connected burial benefits and $700.00 for plot allowance, totaling $1,000.00. These awards are the maximum amounts allowed where a veteran's death is not related to service and for plot allowance. See 38 U.S.C. §§ 2302, 2303(b); 38 C.F.R. §§ 3.1705(a), 3.1706(a), 3.1707. As the Appellant has already been awarded nonservice-connected burial benefits and plot allowance, the Board will consider whether entitlement to service-connected burial benefits and transportation allowance are warranted. Initially, the Board finds that a transportation allowance under 38 C.F.R. § 3.1709 is not warranted, because the Veteran was buried at Calvary Cemetery, a private, not national cemetery. As VA will only reimburse the costs of transportation if a Veteran was buried in a national cemetery, the criteria for this allowance are not met. 38 C.F.R. § 3.1709. In order to award service-connected burial benefits, service connection for the cause of the Veteran's death must be in effect. See 38 C.F.R. § 3.1700. As the Board has granted herein service connection for the cause of the Veteran's death, the criteria for service-connected burial benefits have also been met. Id. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, 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.