Citation Nr: 21032598 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-42 536 DATE: May 27, 2021 ORDER Entitlement to service connection for cause of Veteran's death is granted. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in June 2011 and the immediate cause of death was listed as bladder cancer. 2. The Veteran was not evaluated totally disabled for a service-connected disability for 10 continuous years immediately preceding his death; was not totally disabled from the date of his discharge for a period of not less than 5 years immediately preceding his death; and was not a former prisoner of war. 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, 1112, 1116, 1131, 1310, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312 (2019). 2. The criteria for Dependency and Indemnity Compensation pursuant to 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. §§ 3.22, 20.1106. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to June 1970 with service in the Republic of Vietnam. He died in June 2011, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for cause of Veteran's death Laws and Regulations Service connection may be established for a disability that caused a veteran's death either principally or contributorily. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). A principal cause of death is one which, either singly or jointly with another condition, was the immediate or underlying cause of death or was otherwise etiologically related thereto. 38 C.F.R. § 3.312(b). Whereas, a contributory cause of death is one which contributed substantially or materially to cause death, combined to cause death, or 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). In the case of a disease or injury involving the active processes affecting vital organs, careful consideration must be given as to whether it was a contributory cause of death from the viewpoint of whether there were resulting debilitating effects and/or general impairment of health to an extent that it would render a person materially less capable of resisting the effects of the disease or injury which primarily caused the death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs and is evaluated as 100 percent disabling, debilitation may be assumed. Determining whether service connection for cause of death is warranted is based on the same statutory and regulatory scheme which governs service connection for a disease or injury incurred in or aggravated by active duty service. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004). In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service-connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service or, in the alternative, is secondary to another service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). Section 3.307(a)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). On January 1, 2021 Congress overrode the Presidential veto of the National Defense Authorization Act for Fiscal Year 2021 and it became Public Law No. 116-283. Section 9109 of that law amended 38 U.S.C. § 1116(a)(2) to add bladder cancer to the list of presumptive conditions for exposure to herbicide agents, e.g. Agent Orange. The Veteran has already been determined to have been exposed to herbicide agents. The new presumption of service connection thereby applies to his case. Although the VA medical examination pointed to a lifetime of smoking as an additional risk factor, this risk factor was not stated definitively enough in the opinions to rebut the presumption afforded to the Veteran. Service connection for bladder cancer shall be presumed. 38 C.F.R. §§ 3.303, 3.307, 3.309. Analysis The appellant contends the Veteran's service-connected disabilities contributed to his death. The Veteran's death certificate reflects that he died in June 2011. The immediate cause of death is listed as bladder cancer. Tobacco use was noted to have contributed to death. An amended death certificate lists bladder cancer as the immediate cause of death with diabetes mellitus, type II listed as a contributing cause. The Board notes that bladder cancer was not a service-connected disability at the time of the Veteran's death. At the time of his death, the Veteran had not been awarded service connection for any disabilities. In a November 2011 rating decision, the agency of original jurisdiction (AOJ) conducted a special review of the Veteran's file pursuant to Nehmer and granted service connection for diabetes mellitus, type II associated with herbicide exposure effective February 3, 2011 and coronary artery disease associated with herbicide exposure effective February 3, 2011. Nehmer v. U.S. Department of Veterans Affairs, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989). The appellant filed a claim for dependency and indemnity compensation benefits in December 2011. In October 2013, a VA medical examiner opined that the Veteran died from a natural progression of his metastatic bladder cancer and that the Veteran's diabetes mellitus type II or coronary artery disease did not contribute to his death substantially or materially; or combine to cause his death or aid or lent assistance to production of death. The examiner rationalized that the patient suffered from multiple chronic medical problems that included metastatic bladder cancer for which he was receiving hospice care. The examiner noted records over the last several years before his death show multiple hospital admissions for conditions completely unrelated to diabetes mellitus type II or coronary artery disease. In the December 2013 rating decision on appeal, the RO denied service connection for cause of death because no evidence had been found that the Veteran's service-connected diabetes mellitus type II or coronary artery disease caused or contributed to the Veteran's death. In the November 2014 notice of disagreement, the appellant asserted the correlation between diabetes mellitus type II and bladder cancer is a known fact and that her husband's death should be considered service connected. The appellant submitted a November 2014 positive nexus statement from Dr. T.W. who opined that the Veteran's cause of death was bladder cancer complicated by ischemic heart disease and type 2 diabetes. However, Dr. T.W. provided no rationale and therefore his opinion is of no probative value. In July 2016, a VA examiner opined it is less likely as not that the Veteran's bladder cancer was caused by his service-connected diabetes mellitus because there is no known relationship between diabetes and bladder cancer while there is a strong correlation between bladder cancer and tobacco use. He opined STRs did not reveal a diagnosis which would have at least as likely as not contributed to the Veteran's death because the Veteran did not have conditions that had any chronic effect on any vital organs during service. He had musculoskeletal disease and other acute conditions that would have nothing to do with death. Finally, the VA examiner opined the Veteran's service-connected diabetes mellitus type II or coronary artery disease or course of treatment for these conditions did not cause debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death because although the Veteran had coronary heart disease his cardiac function was near normal with an ejection fraction of 45 percent. He was thought to have unstable angina but there was no evidence that this made him more susceptible to bladder cancer. The VA examiner explained the Veteran's most debilitating illness that did not directly lead to his death was chronic obstructive pulmonary disease (COPD) for which he was on oxygen therapy for. He noted a February 2005 physical stated the Veteran smokes about one pack of cigarettes per day and his past medical history is positive for severe COPD. Further, there was no mention in the record of the Veteran's diabetes having debilitating effects that would have influenced his treatment for bladder cancer or made him less able to resist the effects of bladder cancer. The Board finds the July 2016 VA opinion the most probative evidence of record in regard to whether the Veteran's service-connected diabetes mellitus type II or coronary artery disease caused or contributed to the Veteran's death. The Board notes the July 2016 VA opinion was based upon a thorough review of the record, and thoughtful analysis of the Veteran's entire history. The Board is cognizant of the amended death certificate which lists diabetes mellitus as a contributing factor, but the certificate does not contain any explanation for this finding and the examiner's opinion is more considered more probative as it provides reasons and bases for its findings. Thus, the evidence of record reflects that the Veteran's service-connected diabetes mellitus type II or coronary artery disease did not cause or contribute to the Veteran's death. However, in light of the above discussion, the most probative evidence of record supports the conclusion that the Veteran's bladder cancer was related to his exposure to herbicide agents during active service. The Board therefore finds that the Veteran should have been service-connected for bladder cancer at the time of his death. In addition, the Veteran's death certificate identified bladder cancer as the principal cause of his death. There is no contrary medical opinion of record. Accordingly, service connection is warranted for the cause of the Veteran's death. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to dependency and indemnity compensation benefits The Appellant contends that she is entitled to DIC benefits pursuant to 38 U.S.C. § 1318. Laws and Regulations DIC is awarded to a veteran's surviving spouse for death resulting from a service-connected disability. 38 U.S.C. § 1310. Under this provision, benefits are payable to the surviving spouse and to the children of a deceased veteran who dies, not as the result of the veteran's own willful misconduct, and who was in receipt of or entitled to receive compensation at the time of death for a service-connected disability rated totally disability if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or (3) the veteran was a former prisoner of war and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b). Analysis Here, the Veteran was awarded service-connection for diabetes mellitus, type II associated with herbicide exposure rated as 20 percent disabling, effective February 3, 2011; and coronary artery disease associated with herbicide exposure rated as 10 percent disabling, effective February 3, 2011. The Veteran died in June 2011. As the Veteran was not in receipt of, or entitled to received, compensation at the totally disabling rate (100 percent) at any point prior to his death, as a matter of law, the Appellant is not entitled to DIC benefits pursuant to 38 U.S.C. § 1318(b). See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the Appellant's claim is denied. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.