Citation Nr: 21030393 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-12 007 DATE: May 18, 2021 ORDER Entitlement to service connection for a prostate disability, to include enlarged prostate, as due to in-service exposure to herbicide agents, is denied. Entitlement to service connection for neuropathy, to include diminished pulses in the lower extremity and peripheral edema, as due to in-service exposure to herbicide agents, is denied. Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C. § 1318 is denied. Entitlement to survivors' pension benefits is denied. FINDINGS OF FACT 1. The Veteran's prostate disability, to include enlarged prostate, is not shown to be etiologically related to the Veteran's active service, to include as due to in-service herbicide exposure. 2. The Veteran's neuropathy, to include diminished pulses in the lower extremity and peripheral edema, is not shown to be etiologically related to the Veteran's active service, to include as due to in-service herbicide exposure. 3. The Veteran died in March 2017, and the death certificate lists cardiopulmonary failure as the immediate cause of death due to, or as a consequence of, pulmonary embolism due to, or as a consequence of venous thrombosis. 4. The evidence is in relative equipoise as to whether the Veteran's cardiopulmonary failure was related to his service-connected ischemic heart disease and contributed to his cause of death. 5. The Veteran was not a former prisoner of war (POW), and he was not in receipt of compensation at the 100 percent rate due to service-connected disability for a period of at least five years immediately after his discharge from service, or for 10 or more years prior to his death; nor would he have been in receipt of such compensation but for clear and unmistakable error (CUE) in a prior decision. 6. As the Appellant has not provide adequate information to demonstrate her income and net worth, entitlement to survivors' pension benefits cannot be established. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate disability, to include enlarged prostate, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for neuropathy, to include diminished pulses in the lower extremity and peripheral edema, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. 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, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.312. 4. The criteria for entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 5. The criteria for entitlement to survivors' pension benefits have not been met. 38 U.S.C. § 1543; 38 C.F.R. §§ 3.23, 3.274, 3.275, 3.276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1972 to February 1976. During his period of service, he earned the National Defense Service Medal, Republic of Vietnam Campaign Medal, Vietnam Service Medal, Air Force Expeditionary Medal, and Air Force Good Conduct Medal. The Veteran died in March 2017. The Appellant is his surviving spouse. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For purposes of establishing service connection for a disability resulting from exposure to certain herbicide agents, to include Agent Orange, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). Here, the Veteran has not contended that he served in the Republic of Vietnam, but instead had foreign service in Thailand. As for Agent Orange exposure in Thailand, VA's Adjudication Procedures Manual (Manual) indicates that special consideration of herbicide exposure on a factual basis should be extended to certain Veterans whose duties placed them on or near the perimeters of Thailand military bases. See VA Adjudication Manual, M21-1MR, part IV, subpart ii, 1.H.5.b. The Manual indicates that herbicide exposure on a factual basis should be conceded for Veterans of either the United States Air Force or the United States Army who served at one of several Royal Thai Air Force Bases, and who served as a security policeman, security patrol dog handler, member of the security police squadron, or were otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Id. Service connection for certain chronic diseases may be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a prostate disability With regard to present disability, the Veteran's medical treatment records show diagnosis of and treatment for enlarged prostate. Thus, the current disability criterion for service connection is met. See Shedden, supra. Next, the Board must consider whether the Veteran sustained a disease or injury in service. As determined by the August 2019 Board decision, the Veteran is presumed to have been exposed to herbicide agents during his service in Thailand. However, the Board observes that the Veteran's diagnosed prostate disability, is not listed as a disease warranting presumptive service connection based on in-service herbicide exposure. See 38 C.F.R. § 3.309(e). As the Veteran's prostate disability are not included on the list of diseases for which presumptive service connection may be awarded based on herbicide exposure, entitlement to service connection for a prostate disability, to include enlarged prostate, as due to in-service herbicide exposure, on a presumptive basis is not warranted. Notwithstanding the foregoing presumptive provisions, a Veteran is not precluded from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Turning to the evidence of record, the Veteran's service treatment records have been reviewed and are negative for evidence of complaints related to a prostate disability. The Veteran's January 1972 entrance examination shows that the clinical examination of the anus and rectum was normal. Further, prior to separation from service, the Veteran's January 1976 report of medical examination shows normal anus and rectum upon clinical examination. As there is no evidence of any prostate disability in service, the second element of Shedden is not met. Moreover, the Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's military service and his prostate disability. Pursuant to the August 2019 Board remand, a VA medical opinion was obtained in October 2019. Based on review of body of evidence and relevant medical literature, and in accordance with accepted medical principles, the VA examiner opined that it was less likely than not that the Veteran's enlarged prostate was related to his presumed in-service herbicide exposure. In support of his opinion, the VA examiner explained that prostate enlargement was noted in private urologist treatment notes in July 2013; however, the treating provider did not attribute the prostate enlargement to military service, to include herbicide exposure. The VA examiner further explained that Agent Orange had not been established as a risk factor for enlarged prostate. The National Academy of Sciences has reviewed the relevant published, peer-reviewed medical literature in its Veterans and Agent OrangeUpdate 2018 and had not found sufficient evidence of an association between Agent Orange and enlarged prostate. The Board acknowledges the Veteran's belief that his enlarged prostate was related to presumed in-service exposure to Agent Orange. See Affidavit, dated November 1, 2016. Although laypersons are sometimes competent to provide opinions on certain medical questions, the etiology of an enlarged prostate falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran was certainly competent to report his symptoms, such as frequent urination, he is not competent to link those complaints to a particular etiology. His assertions are therefore not competent evidence of a medical nexus. Although the Board is sympathetic to the claim, the preponderance of the evidence is against a finding that service connection for a prostate disability, to include enlarged prostate, is warranted. Accordingly, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to service connection for neuropathy With regard to present disability, the Veteran's medical treatment records show diagnoses of diminished pulses in the lower extremity and peripheral edema. Thus, the current disability criterion for service connection is met. See Shedden, supra. Next, the Board must consider whether the Veteran sustained a disease or injury in service. As noted above, exposure to herbicide agents during his service in Thailand is presumed. However, the Board observes that the Veteran's diagnosed diminished pulses in the lower extremity and peripheral edema are not listed as a disease warranting presumptive service connection based on in-service herbicide exposure. See 38 C.F.R. § 3.309(e). As the Veteran's claimed neuropathy is not included on the list of diseases for which presumptive service connection may be awarded based on herbicide exposure, entitlement to service connection for neuropathy, to include diminished pulses in the lower extremity and peripheral edema, as due to in-service herbicide exposure, on a presumptive basis is not warranted. Notwithstanding the foregoing presumptive provisions, a Veteran is not precluded from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Turning to the evidence of record, the Veteran's service treatment records have been reviewed and are negative for evidence of complaints related to neuropathy. The Veteran's January 1972 entrance examination shows that the clinical examination of the neurologic system was normal. Further, prior to separation from service, the Veteran's January 1976 report of medical examination shows normal neurologic system upon clinical examination. As there is no evidence of any neuropathy in service, the second element of Shedden is not met. Moreover, the Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's military service and his claimed neuropathy. Pursuant to the August 2019 Board remand, a VA medical opinion was obtained in October 2019. Based on review of body of evidence and relevant medical literature, and in accordance with accepted medical principles, the VA examiner opined that it was less likely than not that the Veteran's claimed neuropathy was related to his presumed in-service herbicide exposure. In support of his opinion, the VA examiner noted that the medical treatment record associated with the Veteran's claims file did not indicated that the Veteran had peripheral neuropathy of any kind, to include early-onset peripheral neuropathy. The Board acknowledges the Appellant's belief that the Veteran's claimed neuropathy was related to presumed in-service exposure to Agent Orange. Although laypersons are sometimes competent to provide opinions on certain medical questions, the etiology of neuropathy falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Appellant is competent to relate symptoms displayed by the Veteran, she is not competent to link the Veteran's symptoms to a particular etiology. Her assertions are therefore not competent evidence of a medical nexus. Although the Board is sympathetic to the claim, the preponderance of the evidence is against a finding that service connection for neuropathy, to include diminished pulses in the lower extremity and peripheral edema, is warranted. Accordingly, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Cause of Death and Pensions Benefits 3. Entitlement to service connection for the cause of the Veteran's death Death benefits are payable to the surviving spouse, children, and parents of a veteran who dies from a service-connected or compensable disability. 38 U.S.C. § 1310. 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 military service either caused or contributed substantially or materially to the Veteran's demise. 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. 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that the service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and a veteran's death. 38 C.F.R. § 3.312(c)(1). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A certificate of death indicates that the Veteran died in March 2017. The immediate cause of death was listed as cardiopulmonary failure as the immediate cause of death due to, or as a consequence of, pulmonary embolism due to, or as a consequence of venous thrombosis. Other underlying conditions contributing to death, but not resulting in the underlying causes given included history of prostetic aortic valve replacement, chronic obstructive pulmonary disease (COPD), and hypertension. The Appellant asserts that the Veteran's cardiopulmonary failure was related to his active service, to include exposure to herbicide agents, or in the alternative, secondary to his service-connected ischemic heart disease. At the time of death, the Veteran was service connected for bilateral hearing loss and tinnitus; however, service connection for ischemic heart disease, effective March 18, 2015, was subsequently granted. As noted above, exposure to herbicide agents during his service in Thailand is presumed. Pursuant to the August 2019 Board remand, a VA medical opinion was sought in October 2019 to determine whether the Veteran's cause of death was likely related to service, to include his presumed exposure to herbicide agents; or, in the alternative, related to, contributed to, or hastened by his Veteran's service-connected disabilities. Based on review of body of evidence and relevant medical literature, and in accordance with accepted medical principles, the VA examiner opined that it was less likely than not that the Veteran's service-connected ischemic heart disease, or treatment thereof, caused or contributed to his death. In support of his opinion, the VA examiner noted that the body of evidence did not indicate the Veteran had ischemic heart disease as defined by VA and reported in the Federal Register. Moreover, the examiner explained that the Veteran underwent cardiac evaluation two months prior to his death, at which time there were no symptoms attributed to ischemic heart disease, nor were any ischemic heart disease-related conditions reported. The Veteran also underwent nuclear stress testing two months prior to his death. The results did not show evidence of current or historical ischemic heart disease. Lastly, the examiner noted that the Veteran's death certificate did not list any ischemic heart disease condition as an immediate cause, underlying cause, or contributing condition to Veteran's death. The VA examiner further opined that it was less likely than not that the Veteran's hearing loss, tinnitus, or ischemic heart disease caused debilitating effects or general impairment of health to an extent that rendered the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. In support of his opinion, the examiner noted that the medical records did not contain evidence that hearing loss, tinnitus, or ischemic heart disease caused debilitating effects or general impairment of health to an extent that rendered the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. A private medical opinion was associated with the claims file in October 2020. Dr. J.F. explained that the Veteran's medical history of worsening shortness of breath, edema, and ease of fatigue, evidenced the development of heart failure, which is a very common outcome of ischemic heart disease. The physician also noted that the Veteran had been diagnosed with unstable angina, which is a classic manifestation of ischemic heart disease. Accordingly, Dr. J.F. opined that it was at least as likely as not that the Veteran's service-connected ischemic heart disease was clinically significant and progressively worsened, leading to the development of heart failure and unstable angina, which were the main contributors to his death. In consideration of the evidence of record, the Board finds that the evidence of record for and against the claim of entitlement to service connection for the cause of the Veteran's death is in a state of relative equipoise. The opinions both for and against are based on a review of the pertinent medical records and provide an adequate rationale for the conclusions reached. As the reasonable doubt created by this relative equipoise must be resolved in favor of the Appellant, the Board finds service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 DIC benefits may be paid to a deceased veteran's surviving spouse or children in the same manner as if the veteran's death was service connected. 38 U.S.C. § 1318(a); 38 C.F.R. § 3.22(a). Such benefits are payable if the veteran was in receipt of, or entitled to receive, compensation for a service-connected disability that was (1) rated totally disabling for a continuous period of 10 or more years immediately preceding his or her death; (2) rated as totally disabling continuously since the veteran's release from active duty and for at least five years immediately preceding death; or (3) rated totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former POW who died after September 30, 1999. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). After a review of the record, the Board finds the criteria for dependency and indemnity compensation under 38 U.S.C. § 1318 have not been met. In the present case, the Veteran was discharged from service in February 1976. At the time of his death, he was service connected for bilateral hearing loss, rated 10 percent disabling, effective March 18, 2016; and for tinnitus, rated 10 percent disabling, effective March 18, 2016. Service connection for ischemic heart disease, rated 10 disabling, effective March 18, 2015, was subsequently granted by the August 2019 Board decision. A 60 percent rating, effective October 15, 2015, was awarded by a February 2021 rating decision. Thus, his combined disability rating was 10 percent from March 18, 2015; 60 percent, effective October 5, 2015, and 70 percent, effective March 18, 2016. The Board has considered whether the requirements for a total rating necessary to satisfy 38 U.S.C. § 1318 would have been met, but for CUE in a decision on a claim filed during the Veteran's lifetime. See 38 C.F.R. § 3.22(b)(1). However, the record shows that the Appellant has not asserted CUE in any previous adjudication. Finally, neither the Veteran nor the Appellant has asserted, and the record does not reflect, that the Veteran was a former POW. In sum, the evidence of record does not show that the Veteran was continuously rated totally disabled (either schedular or based on unemployability) for a period of at least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for a period of not less than five years after his discharge from service. Also, the evidence does not show that he was a former POW. Therefore, the criteria for DIC benefits under 38 U.S.C. § 1318 are not met. For the foregoing reasons, the preponderance of the evidence is against the claim for DIC benefits under 38 U.S.C. § 1318. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 5. Entitlement to survivors' pension benefits Survivors' pension benefits are generally available for surviving spouses as a result of the Veteran's nonservice-connected death. 38 U.S.C. § 1541(a). Basic entitlement exists if (i) the Veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability, and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 C.F.R. § 3.3(b)(4). Here, the Veteran served in the United States Air Force from February 1972 to February 1976. Accordingly, the Veteran served for longer than 90 days during the Vietnam War era, thus meeting the service requirement for improved death pension. Therefore, the first two requirements for improved death pension are satisfied. The remaining question is whether the Appellant's income exceeds the MAPR. The MAPR is published in Appendix BVA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.24. The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the claimant. 38 U.S.C. §§ 1503, 1521; 3 8C.F.R. §§3.3, 3.23(b). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during the 12-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were "in excess of 5 percent of the applicable maximum annual pension rate or rates... as in effect during the 12-month annualization period in which the medical expenses were paid." 38 C.F.R. § 3.272(g)(1)(iii). In order to be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred. In addition, they must be out-of-pocket expenses, for which the surviving spouse received no reimbursement, such as through an insurance company. However, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. For the purpose of determining initial entitlement, or resuming payments on an award that was previously discontinued, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by twelve. 38 C.F.R. § 3.273(a). In essence, VA subtracts the total amount of countable income in one year, less excluded income, from the MAPR for that year; then, if a positive amount remains, the rest is divided by twelve to determine the monthly death pension benefit. When a change in the MAPR occurs, the Board repeats the calculation with the new MAPR as the starting amount. 38 C.F.R. § 3.273(b)(1). When a change in income occurs, the MAPR will be reduced by the new annualized income effective on the date that the increased income began. 38 C.F.R. § 3.273(b)(2). The issue of entitlement to survivors' pension was remanded in August 2019 for further development. In an October 2019 development letter, VA requested that the Appellant complete VA Form 21-0518 (Eligibility Verification Report) and VA Form 21-8416 (Medical Expense Reports), as well as provide information regarding her income and net worth for the periods of March 21, 2017 through March 31, 2018; January 1, 2018 through December 31, 2018; and January 1, 2019 through December 31, 2019. To date, the Appellant has not provided the requested financial information. As the Appellant has not provided the required financial information to establish entitlement to this benefit, the Board is constrained to find that she has not met her evidentiary burden for entitlement to nonservice-connected pension benefits. Accordingly, the claim of entitlement to survivors' pension benefits is without legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Although the Board is sympathetic to the Appellant's claim, the Board has no recourse but to deny the claim of entitlement to survivors' pension benefits. J. O'CONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.