Citation Nr: 21030721 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-02 268 DATE: May 19, 2021 ORDER Entitlement to service connection for cause of death is granted. Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. The Veteran died in February 2011. The immediate cause of death listed was COPD, and contributing causes listed were diabetes mellitus, type II, and hypertension. 2. At the time of his death, Veteran was service connected for bilateral elbow disabilities, gout of the left foot, and lumbar strain. 3. Resolving all reasonable doubt in the Veteran's favor, the evidence of record places the Veteran on the ground in the Republic of Vietnam during the period from July 1965 to September 1965; a presumption is thus established that he was exposed to herbicide agents. 4. The Veteran has a diagnosis of diabetes mellitus, type II. 5. A COPD disability was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, diabetes mellitus, type II, is presumed to have incurred as a result of service. 38 U.S.C. §§ 1101, 1110, 1113, 1116, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1101, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2020). 3. The criteria for entitlement to service connection for a COPD disability have not been met or approximated. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1963 to July 1967, and again from August 1971 to September 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. On September 30, 2020, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Remand (JMR) that remanded the issue of service connection for COPD back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court's remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated January 11, 2021, notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran, through his representative, did not submit any additional evidence, and with the expiration of the 90-day period, the Board will proceed with its adjudication of the appeal. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). The substance of the Court's JMR will be discussed further in the remand section below. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5109 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2020). For a claim of service connection for the cause of the Veteran's death, 38 U.S.C. § 5103 (a) notice must be tailored to the claim. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds sub nom. Hupp v. Shinseki, 329 F. App'x 277 (Fed. Cir. 2009). The notice should include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App at 352-53. In the instant case, VA's duty to notify was satisfied by a VCAA letter dated June 28, 2011. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2018); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Here, the appellant was provided with the relevant notice and information in the June 2011 letter. The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore any notice error was harmless). VA also satisfied its duty to assist the development of the claims. This duty includes assisting the appellant in the procurement of pertinent medical records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The claims file contains the Veteran's service treatment records (STRs) and personnel records, private treatment records, and lay statements from the appellant. Here, the appellant has not identified any additional, relevant, available evidence. Therefore, the Board concludes that VA has made reasonable efforts to obtain all records relevant to the claims. Neither the appellant nor her representative has advanced any additional procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran..."). As VA satisfied its duties to notify and assist, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. §§ 5103, 5103A, or 38 C.F.R. § 3.159, and that the appellant will not be prejudiced as a result of the Board's adjudication of her claims. Entitlement to Dependency and Indemnity Compensation (DIC) DIC benefits are monetary benefits that may be paid to a deceased Veteran's surviving spouse, child, and parent. 38 U.S.C. § 101(14). Each type of eligible claimant is specifically defined. A surviving spouse is a person who: (1) was the spouse of the Veteran at the time of the Veteran's death; (2) lived with the Veteran continuously from the date of marriage to the date of the Veteran's death; and, (3) has not remarried or, since the death of the Veteran and after September 19, 1962, lived with another person and held themselves out openly to the public as the spouse of another person. 38 U.S.C. § 101(3). The Board notes that the eligibility of the appellant, as the Veteran's surviving spouse, has already been adjudicated by the AOJ and is therefore potentially eligible for DIC. See 38 C.F.R. § 3.104. There are three main theories of entitlement to DIC benefits: (1) benefits awarded pursuant to 38 U.S.C. § 1310; (2) benefits awarded pursuant to 38 U.S.C. § 1318; and, (3) benefits awarded pursuant to 38 U.S.C. § 1151. Unless specifically limited by a claimant, the Board is required to consider all theories of entitlement to DIC benefits. See 38 C.F.R. § 3.152(a), (b)(1). As such, a generic claim for DIC benefits encompasses all three theories of entitlement listed above. See, e.g., Stoner v. Brown, 5 Vet. App. 488, 491 (1993). Service Connection for Cause of Death Legal Criteria for Service Connection - General Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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 or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Finally, service connection can also be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). For the purposes of determining herbicide agent exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed. Id. Where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection for Cause of Death Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 C.F.R. § 3.312(a). 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. A service-connected disability will be considered as the principal, or primary, cause of death when such 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). 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(c)(1); Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). 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). Evidence and Analysis Service Connection for Cause of Death The appellant asserts that her late husband should have been service connected for his cause of death, listed as COPD as the primary cause of death, with diabetes and hypertension listed as contributing causes of death, because the Veteran was exposed to Agent Orange and herbicide agents during his service in Vietnam and later in Thailand. The Veteran died in February 2011. The primary cause of death listed on his death certificate was COPD, and two contributing causes were listed: diabetes mellitus, type II, and hypertension. At the time of the Veteran's death, he was service connected for bilateral elbow disabilities, gout of the left foot, and a lumbar back disability. The Veteran, while alive, had filed a claim for service connection on April 28, 2010 for, inter alia, diabetes mellitus, type II, and COPD. He was denied in a rating decision dated September 27, 2020. While the Veteran himself did not file a notice of disagreement with that decision, he died in February 2011, less than one year after that rating decision. As such, the Veteran is considered to have died with a claim pending before VA, because the allowable one-year period for filing a notice of disagreement had not yet passed at the time of the Veteran's death. 38 C.F.R. § 3.1010(g)(1)(i). The appellant, as the late Veteran's spouse, did not file a specific request to substitute, but VA will interpret a claim for accrued benefits (VA Form 21-601, "Application for Accrued Amounts Due a Deceased Beneficiary"), survivors pension, or DIC (VA Form 21-534, "Application for DIC, Death Pension & Accrued Benefits by Spouse or Child") by an eligible person (under 38 C.F.R. §§ 3.1000(a)) to include a request to substitute. 38 C.F.R. § 3.1010(c)(2). As a threshold matter, the Veteran married the appellant in August 1985 and that marriage continued through the date of the Veteran's death. As such, the Board considers the appellant to be an eligible person as the late Veteran's spouse for all pertinent purposes under 38 C.F.R. § 3.1010. The appellant filed a claim for DIC on February 28, 2011, which was deemed by the RO as a request to substitute, and substitution was approved in a deferred rating issued by the RO in November 2012. However, the appellant never filed a notice of disagreement with the September 2010 rating decision within one year, and thus that decision denying service connection for diabetes and COPD became final. As such, then, the Board considers this appeal to be that of one of entitlement to service connection for cause of death, with two potential conditions to be considered, and not one for any service-connected condition from the Veteran's April 2010 claim. For the reasons provided below, the Board finds that service connection for cause of death for diabetes as due to a contributing cause of death is warranted on a presumptive basis. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307(d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). In the Agent Orange Act of 1991, Congress created statutory presumptions of service connection for certain diseases caused by exposure to herbicides, and it also established a process for VA to add additional medical conditions to the list of presumptions. The diseases associated with herbicide exposure for purposes of the presumption include diabetes. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309 (e); see 78 Fed. Reg. 54763 (Sept. 6, 2013). If the veteran was exposed to an herbicide agent (to include Agent Orange) during active service, diabetes 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. While the Veteran was alive, he provided statements with his claim, where he described his military service, to include that as an Air Force mechanic and crew chief on C-130 aircraft while assigned to the 464th Organizational Maintenance Squadron and later the 779th Tactical Airlift Squadron, both at Pope Air Force Base, North Carolina. The Veteran reported that he and others from his unit were assigned on temporary duty to a base in the Republic of Vietnam with their C-130 aircraft in 1965, where they would be assigned tactical airlift missions. The Veteran's military personnel records indicate this assignment for him was July 22, 1965 to September 18, 1965. The Veteran's personnel records reflect a special order from Headquarters Seventh Air Force, Tan Son Nhut Air Base, Saigon, Republic of Vietnam, and that he also was awarded the Air Medal for his service while on temporary duty there. The Veteran's service medical records also contain a record where the Veteran sought treatment for a minor skin condition while at Tan Son Nhut Air Base during that temporary duty period. The Board finds the Veteran's statements while he was alive to be credible and there is no reason to discount the statements via any affirmative evidence to the contrary. See 38 C.F.R. § 3.159(a)(2) (lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board). See also 38 U.S.C. § 1154(a) (reflecting that due consideration is to be given to the places, types, and circumstances of a claimant's service). The foregoing personnel records clearly corroborate the Veteran's recollections. VA will presume that a veteran who served in Vietnam during the Vietnam era (January 9, 1962, to May 7, 1975) was exposed to herbicide agents if they served on land within the Republic of Vietnam (i.e., had "boots on the ground"). The Board notes that pursuant to 38 C.F.R. § 3.307 (a)(6)(iii) that "served on land" includes duty or visitation in the Republic of Vietnam. The Board also takes notice that the Veteran was awarded the Republic of Vietnam Service Medal, a Vietnam Campaign Medal, and a Republic of Vietnam Gallantry Cross with palm device, among other decorations for his service. The Board also notes there is no regulatory requirement as to how long the veteran was in Vietnam; even a few hours of service in country is sufficient to establish the presumption of exposure. See Haas v. Peake, 525 F.3d 1168, 1192-93 (Fed. Cir. 2008) (discussing the "foot-on-land" rule); 38 C.F.R. § 3.307(a)(6)(iii); see also VAOPGCPREC 27-97, 1997. Thus, the Board is satisfied that it is as least as likely as not that he was exposed to herbicides during his period on the ground at Tan Son Nhut Air Base, Vietnam, in 1965 at periodic times as a minimum. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (finding that when a claimant seeks benefits from VA and the evidence is in relative equipoise, the claimant prevails). The Board notes the assertions from the appellant regarding the Veteran's verified later service at Royal Thai Air Force Base Udorn in Thailand from November 1972 to December 1973. However, the procedures for determination of possible herbicide exposure differ for Thailand service than for service in Vietnam. Because the Board reaches a positive finding for the Veteran's service in Vietnam from July 1965 to September 1965, presumptive exposure to herbicide agents is established, and the Board need not further consider any later service in Thailand. COPD, Diabetes Mellitus, Type II and Service Connection Cause of Death As noted earlier, the Veteran while still alive filed claims for service connection for COPD and diabetes in April 2010, which were denied in September 2010 prior to his death in February 2011. After the appellant filed a claim for service connection for cause of death in February 2011, that claim for COPD and diabetes was denied again, and is the basis for this appeal. The Veteran's service treatment records do not show a diagnosis of COPD or diabetes during his active service. He had normal examinations of his chest and lungs in June 1963, December 1965, July 1966, August 1971, July 1975, February 1982, October 1985, and May 1987. Chest X-rays showed no cardiopulmonary findings. He denied having any pulmonary symptoms in June 1963, December 1965, July 1966, June 1967, August 1971, February 1982, and May 1987. His service treatment records also do not show blood test results consistent with a diagnosis of diabetes. The Veteran had retired from active military service in September 1987 and his retirement physical examination was silent for any mention of a respiratory disability such as COPD or diabetes. VA medical records show a diagnosis of both COPD as early as December 2002, and diabetes mellitus, type II, as early as November 2005. There is no mention of the respective conditions until those dates, meaning there was fifteen years between active service and the first diagnosis of COPD in December 2002 and eighteen years until the first diagnosis of diabetes in November 2005. The diseases associated with herbicide exposure for purposes of the presumption include diabetes mellitus, type II, among others, but do not include COPD. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e); see 78 Fed. Reg. 54763 (Sept. 6, 2013). If the Veteran was exposed to an herbicide agent (to include Agent Orange) during active service, diabetes mellitus, type II, 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. 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, and the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). As the Veteran was present on the ground at Tan Son Nhut Air Base, Saigon, Vietnam during the relevant timeframe, he is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307. The record establishes that the Veteran had qualifying service in Vietnam for the purposes of presumptive exposure to herbicide agents. The Veteran's death certificate indicates his principal cause of death was COPD, with a contributory cause of diabetes mellitus, type II, and hypertension. Pertinent to this claim, the diabetes is a disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Accordingly, the Board finds the appellant's claim of entitlement to service connection for cause of death is granted. 38 U.S.C. §§ 1116, 1310; 38 C.F.R. §§ 3.307, 3.309, 3.312. The Board need not reach any further conclusion via analysis under 38 U.S.C. § 1318 because service connection cause of death under 38 U.S.C. § 1310 is the greater benefit, and therefore renders an analysis of entitlement under 38 U.S.C. § 1318 moot. See 38 C.F.R. § 3.151; Timberlake v. Gober, 14 Vet. App. 122, 135 (2000); Stoner v. Brown, 5 Vet. App. 488, 491 (1993). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.