Citation Nr: 21032426 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-35 779 DATE: May 27, 2021 ORDER Entitlement to disability and indemnity compensation (DIC) for the cause of the Veteran's death is denied. Entitlement to service connection for right hand carpal tunnel syndrome, for substitution purposes, is denied. Whether new and material evidence has been received to reopen a claim of service connection for a back disability, for substitution purposes is denied. FINDINGS OF FACT 1. The Veteran died in January 2015, and his death certificate lists myocardial infarction as the immediate cause of death with diabetes mellitus and chronic ischemic heart disease as significant conditions contributing to death. 2. The Veteran was service connected for bilateral sensorineural hearing loss and bilateral tinnitus at the time of his death. 3. The Veteran did not serve in Vietnam or other place entitled to a presumption of herbicide agent exposure and herbicide agent exposure during service has not been shown. 4. A heart disability, to include ischemic heart disease, was not manifest during service, was not manifest within one year of service, and a heart disability is not attributable to service. 5. Diabetes was not manifest during service, was not manifest within one year of service, and is not attributable to service. 6. The Veteran's cause of death was unrelated to service or a service connected disability. 7. The Veteran's right hand carpal tunnel syndrome is not shown to be or caused or etiologically related to his active military service. 8. In an unappealed November 1978 decision, the RO denied service connection for a back disability. 9. Evidence received since the November 1978 decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a back disability. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1310; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.307, 3.309, 3.312. 2. The criteria for service connection for right hand carpal tunnel syndrome are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 3. The November 1978 rating decision denying service connection for a back disability is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 19.129, 19.192. 4. New and material evidence has not been received and the claim for service connection for a back disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from November 1956 to November 1968, and from March 1959 to October 1978. The Veteran died in January 2015 and the appellant is the Veteran's surviving spouse. These matters are on appeal from an April 2015 rating decision. The Board acknowledges that the appellant submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on April 25, 2018. However, the appeal had already been activated at the Board and is therefore no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. In February 2019, the Board remanded the appellant's claim of entitlement to DIC under 38 U.S.C. § 1318 for issuance of a Statement of the Case. This issue was only to be returned to the Board if the appellant submitted a timely substantive appeal. She did not. As such, the only issues on appeal are those listed on the title page of this decision. 1. Entitlement to DIC benefits for the cause of the Veteran's death DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected or compensable disability. 38 U.S.C. § 1310(a); 38 C.F.R. § 3.5(a). In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability or disease incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In determining whether a service-connected disability contributed substantially or materially to death, the evidence must show that it combined to cause death or 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). A Veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval, or air service. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability the appellant must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases; including cardiovascular diseases such as cardiomyopathy, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Specific laws and VA regulations determine when a veteran may be presumed to have been exposed to herbicide agents, including Agent Orange, and when that presumed exposure may have caused specific diseases. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed to designated herbicide agents during such service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran who "served in the Republic of Vietnam," certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). The absence of service in Vietnam does not preclude a Veteran (or, here, the appellant) from alleging that the Veteran has disability that is related to designated herbicide exposure. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). The Veteran died in January 2015 with the cause of death listed on his death certificate as myocardial infarction. An amendment was made to the death certificate, listing myocardial infarction as the immediate cause of death with diabetes mellitus and chronic ischemic heart disease as significant conditions contributing to death. At the time of the Veteran's death he was service connected for bilateral sensorineural hearing loss and tinnitus. During the course of the Veteran's lifetime, he not once made an assertion of herbicide exposure. VA treatment records from June 2000 note the Veteran had been diagnosed with diabetes. In an August 2001 treatment record, the Veteran was noted as being diagnosed with coronary artery disease and diabetes. He had a myocardial infarction and stents placed in 2011, as well as a history of a stroke after TIA, with hyperglycemia in 2010. The appellant claims that the Veteran's ischemic heart disease and diabetes mellitus was from his herbicide and/or Agent Orange exposure while stationed at Albrook Air Force Base Panama Canal Zone, including exposure from tests named "Pot Lid." Email correspondence in May 2016 indicates that the Compensation Service considered the Department of Defense's (DOD) listing of locations outside of Vietnam and the Korean DMZ where Agent Orange was used, tested, and stored. The Compensation Service could provide no evidence to support the claim regarding Agent Orange exposure. Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to 1972. There were no combat operations in Panama during the years of 1962 to 1971. Additionally, Panama was not on the Agent Orange shipping supply line, which went directly from Gulfport, Mississippi, to South Vietnam via merchant ships. Regarding Operation Pot Lid, sources show it was conducted in 1967 to test aircraft sensor systems used to track enemy activity in Vietnam. There is no evidence it was this operation occurred in an area where Agent Orange or other herbicides were used. In a May 2016 Memorandum, VA issued a formal finding that VA lacked the information JSRRC required to verify herbicide exposure in Panama. The Veteran's service records reflect service at Albrook Air Force Base, Panama Canal Zone from April 1957 to October 1958, from September 1966 to June 1969, and September 1973 to January 1974. In April and July 2016, the appellant submitted several articles addressing the use of Agent Orange in the Panama Canal Zone. There is testimony by Charles Bartlett, who is referred to as a former government head of the Agent Orange Litigation Project and has asserted personal knowledge the several hundred barrels of Agent Orange had been shipped to Panama in the mid-1960s, and remained there thereafter. In September 2020 the RO sent the appellant a letter asking for the approximate dates, locations, and nature of the alleged herbicide exposure in Panama. To date no reply has been received. The February 2019 Board remand directed VA to request a review of the DOD inventory of herbicide operations to determine if herbicides were used in Panama, followed by a request or review by the JSRRC. As the appellant has provided no further details as to the nature of the alleged herbicide exposure, and there simply is no conclusive indication herbicides were used in Panama, the Board finds there has been substantial compliance with the remand directives. Without more details of the alleged exposure, the Board finds that there is no meaningful development that could be performed. Again, as the appellant has not provided any specific details of the Veteran's alleged exposure to herbicides, any further attempts to corroborate her generalized allegations would be futile. As herbicide agent presumptive regulations do not apply to Panama, the appellant would have to show a direct connection between the Veteran's death and service and these documents do not do so. These internet printouts and associated documents are too generic to support the claim, they are neither specific to the Veteran nor even specific to locations where the Veteran was stationed, and are, therefore, of no probative weight. Additionally, the May 2016 correspondence from the Compensation Service, indicated no evidence could be provided to support the claim of Agent Orange exposure. The documents submitted by the appellant do not show that the Veteran was himself actually exposed to herbicide agents or that herbicide agents were used in or near Albrook Air Force Base. They do not show the Veteran was actually exposed to herbicide agents in service. These are also not medical treatises or alike documents. See § 3.159 (defining competent medical evidence). They are therefore not probative or relevant to the claim. The appellant, although she reported the Veteran was exposed to herbicide agents, is not in a position to know that the Veteran was exposed to herbicides while in Panama. Further, prior to his death, the Veteran did not file a claim for service connection on account of herbicide exposure. More importantly, the appellant's statements do not establish that the Veteran had actual exposure to herbicide agents. In other words, the appellant's lay statements do not allege she actually saw nor had personal knowledge that the herbicides were used in the Veteran's location while serving in Panama. The appellant has not established a factual foundation that would have established actual exposure to herbicide agents. The Board finds this contention is not adequate for establishing exposure to herbicide agents. Therefore, there is no probative evidence of record showing the Veteran was located near any area where tactical herbicides agents were used. Finally, the Board has considered other theories. There is no basis for finding that service directly contributed to the Veteran's heart issues or diabetes. Service treatment records do not show complaints of heart issues or diabetes. His separation examination noted "normal" in heart and all other relevant areas, and did not note any disabilities. The Veteran was service connected for only hearing loss and tinnitus at the time of his death, and neither contributed to his death. There is no accepted proof of exposure to herbicide agents. There is no proof of the onset of heart disease or diabetes in service, within one year of service, and the Veteran did not have characteristic manifestations sufficient to identify the disease process during that timeframe. Rather, when tested at separation, the heart and other relevant systems were normal. There is no reliable evidence that the remote fatal disease process is related to service. Therefore, in light of the above, the Board finds that the preponderance of the evidence is against the appellant's claim for the cause of the Veteran's death. 2. Entitlement to service connection for right hand carpal tunnel syndrome, for substitution purposes The appellant contends the Veteran suffered from right hand carpal tunnel syndrome that is related to service. STRs are silent for documentation of right hand carpal tunnel syndrome. On separation the Veteran denied experiencing a right hand condition or carpal tunnel syndrome. The Veteran had a right carpal tunnel release in 2012, with this being the first indication post-discharge of carpal tunnel syndrome. The appellant has provided no argument or evidence in support of the contention for service connection. The evidence of record does not show symptoms consistent with carpal tunnel syndrome during military service or for several years following his discharge from service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (noting that evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The first mention of carpal tunnel syndrome was over thirty years post discharge. The preponderance of the evidence is against finding that the Veteran suffered from carpal tunnel syndrome directly due to his military service. First, there is no in-service event, injury, or disease upon which service connection can be based. The appellant has not pointed to another reason why she believes this disability was related to the Veteran's service. The Board has considered the contentions that the Veteran's carpal tunnel syndrome is related to service. The appellant is not competent to render an opinion as to the cause or etiology of any current disorder because she does not have the requisite medical knowledge or training. The appellant, as a lay person, has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between the Veteran's carpal tunnel syndrome and service. The evidence does not show that carpal tunnel had its onset in service. The Board appreciates the appellant's belief that the Veteran suffered from right hand carpal tunnel syndrome related to his time in service, but the preponderance of the evidence is against such a finding. Under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Whether new and material evidence has been received to reopen a claim of service connection for a back disability for substitution purposes Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA will reopen the claim and review the former disposition of the claim. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In November 1978, the RO denied the Veteran's claim for entitlement to service connection for a back disability. The Veteran was notified of this denial in a letter in December 1978, but did not appeal, and did not submit new and material evidence within the one year appeal period. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (presumption of regularity applies to RO's mailing of a VA decision to a veteran). Therefore, this denial became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In its November 1978 denial, the RO indicated the Veteran's STRs show no evidence of a chronic back disability. During service the Veteran had complaints of back pain that were deemed acute and had resolved. There was no disability shown on separation exam. In May 2013, the Veteran filed to reopen his claim for service connection. He asserted he suffered from a back disability that was related to his time in service. The contentions made are duplicative of those made at the time of the prior final denial. The appellant now asserts the Veteran suffered from a back disability that originated during service. However, no argument, or evidence was provided in support of that contention. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence received since the 1978 denial includes statements in support and medical records. VA treatment records show the Veteran to have suffered from osteopenia and degenerative joint disease of the lumbar spine, as evidenced by an x-ray in September 2014. Although this is new evidence, it is not material. The new evidence does not provide any explanation as to etiology or otherwise link the claimed back disability to the Veteran's active duty service. Moreover, the theory of entitlement remains unchanged from the time of the 1978 final denial. Based on the above evidence, the Board finds that new and material evidence has not been received to reopen the claim of service connection for a back disability. The statements and treatment records are new, but the evidence does not raise a reasonable possibility of substantiating the claims. There has been no evidence received since the November 1978 denial that raises the reasonable possibility of substantiating the claim. Even if the claim were to be reopened, VA's duty to assist would not be triggered, as there is no indication the Veteran suffered from a back disability as a result of his time in service. (Continued on the next page) Reopening of the claim is not warranted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.