Citation Nr: 22013572 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 16-35 175 DATE: March 10, 2022 ORDER Entitlement to service connection for cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in October 2011. The Certificate of Death lists the immediate cause of death as prostate cancer; no other contributory causes were listed. 2. The Veteran did not serve in the Republic of the Vietnam during his active service, and exposure to herbicide agents during his active-duty service is not otherwise shown. 2. Prostate cancer, which caused the Veteran's death, was not manifested during the Veteran's military service or within one year of discharge; nor was it otherwise caused or aggravated by a disease or injury in active-duty service, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1131, 1137, 1310, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1961 to August 1963. The Veteran died in October 2011 and the appellant is his surviving spouse. In her substantive appeal, the appellant requested a Board video-conference hearing. Most recently, a Board hearing was scheduled in November 2019; however, the appellant failed to appear and has not submitted any evidence showing good cause for such failure. Thus, her hearing request is deemed withdrawn. Entitlement to service connection for cause of the Veteran's death The appellant is seeking service connection for the cause of the Veteran's death. Specifically, the appellant alleges that the Veteran was exposed to herbicide agents while on active duty, and, thus, service connection for prostate cancer, which caused the Veteran's death, should be presumed. The Certificate of Death lists the immediate cause of death as prostate cancer. No other contributory causes were listed. The Veteran was not service connected for any disability, to include prostate cancer. Service connection for the cause of the Veteran's death may be granted if a disability incurred in or aggravated by service was either the principle or a contributory cause of the Veteran's death. 38 C.F.R. § 3.312 (a). For a service-connected disability to be the principal cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312 (b). For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially, and combined to cause death. 38 U.S.C. § 1310 ; 38 C.F.R. § 3.312 (c)(1). A contributory cause of death is inherently one not related to the principal cause. In determining whether the 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. "Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting 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." 38 C.F.R. § 3.312 (c)(3). Generally, minor service-connected disabilities, particularly those of a static nature, or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312 (c)(2). "There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature." 38 C.F.R. § 3.312 (c)(4). Initially, the Board notes that the Veteran's service treatment records are unavailable. Where service treatment records have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide and explanation of reasons or bases for its findings. See O'Hare vs. Derwinski, 1 Vet. App. 365 (1991). In April 2016, the agency of original jurisdiction (AOJ) issued a Formal Finding on the Unavailability of Service Treatment Records and outlined all of its attempts to obtain such records. Moreover, the Veteran's service personnel records have been obtained and in another April 2016 memo, the AOJ documented its efforts to verify any exposure to herbicide agents. Thus, the Board finds that all attempts to obtain these records have been exhausted and the analysis below has been undertaken with this heightened duty in mind. Further, as discussed further below, given the lack of any diagnosis of prostate cancer until decades after service; and, that the Veteran was not service connected for any other disability, a VA opinion concerning the cause of the Veteran's death is not warranted. Importantly, the crux of this decision hinges on whether the Veteran was exposed to herbicide agents while on active duty. After considering the totality of the evidence, the Board finds that the evidence persuasively weighs against finding that the Veteran's prostate cancer was related to military service. Initially, the Board notes that there is no medical evidence showing that prostate cancer manifested to a compensable degree within one year of the Veteran's discharge so the service incurrence of such disability may not be presumed. Private treatment records show that the Veteran began experiencing difficulty voiding in September 2009 and was subsequently diagnosed with prostate cancer in February 2010, decades after the Veteran's discharge from service. Thus, entitlement to presumptive service connection for such disease is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, there is no competent lay or medical evidence linking prostate cancer directly to service. Rather, the appellant has primarily claimed that the Veteran's prostate cancer was due to in-service exposure to herbicide agents. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, 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 a 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). Moreover, the diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C. § 1116 ; 38 C.F.R. § 3.307 (a)(6)(ii). Prostate cancer is one of the enumerated diseases presumed due to exposure to herbicide agents. Nevertheless, even though the Veteran was in service during the applicable time period and has one of the enumerated diseases presumed to be caused by exposure to herbicide agents, the evidence of record does not confirm that the Veteran served in Vietnam and, thus, presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116 (f). Significantly, the Veteran's service personnel records do not show service in Vietnam. Moreover, importantly, in his initial application for service connection in July 2009, the Veteran expressly denied that he served in Vietnam or was exposed to Agent Orange or other herbicides. Given that the Veteran's service records are contemporaneous to his service and that the Veteran had first-hand knowledge of his service, the Board finds this evidence highly probative with respect to whether the Veteran served in Vietnam. In support of her claim, the appellant has submitted a picture of the Veteran's headstone, which has Vietnam listed on it. However, simply having "Vietnam" on a headstone means that the Veteran served during the Vietnam era, but it does not indicate actual service in Vietnam. The appellant has also reported that she overheard her husband talk to a buddy about being in Vietnam and that he told her that he was in Vietnam. However, although the appellant has indicated that she was told that the Veteran was stationed in Vietnam, she has no first-hand knowledge of such service. Whereas, the Veteran clearly had first-hand knowledge of where he served while on active duty and previously denied any such service. Moreover, the Veteran's service records, which again are contemporaneous to his service as opposed to many years later, show no service in Vietnam. Thus, the Board finds that the appellant's statements are outweighed by the Veteran's own statement as well as his service records, which clearly show no service in Vietnam. In sum, the Board finds that the probative evidence of record shows that the Veteran did not serve in Vietnam. The appellant has not described any other incidents of in-service exposure to herbicide agents. Thus, the presumptive regulations regarding exposure to Agent Orange are not applicable in this case. See 38 C.F.R. § 3.307 (a)(6)(iii), 3.309(e). While the Board sympathizes with the appellant's loss, it must conclude that the evidence persuasively weights against the claim for service connection for the cause of the Veteran's death as there is no persuasive evidence linking the Veteran's cause of death to any injury or disease during service, to include exposure to herbicide agents. As the evidence persuasively weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.