Citation Nr: 0126985 Decision Date: 12/04/01 Archive Date: 12/11/01 DOCKET NO. 01-05 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The appellant in this case is the widow of the veteran upon whose service the claims at issue are based. He had active military duty from August 1954 to August 1967. This appeal arises out of April and June 2000 rating decisions of the VA Regional Office (RO) in Indianapolis, Indiana. The appellant perfected her appeal in May 2001, and in August 2001 she appeared at a hearing conducted at the RO by the undersigned member of the Board of Veterans' Appeals (Board). The case has since been transferred to the Board in Washington, DC. Establishing service connection for the cause of death of the veteran establishes a widow's entitlement to dependency and indemnity compensation (DIC). Another way to establish entitlement to this benefit is by means of 38 U.S.C.A. § 1318. This law essentially provides for an award of dependency and indemnity compensation as if the veteran's death were service connected, if he was rated totally disabled for a period of 10 years immediately preceding death. The Board has imposed a temporary stay on the adjudication of claims for DIC pursuant to 38 U.S.C.A. § 1318 in accordance with the directions of the United States Court of Appeals for the Federal Circuit in its decision in National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, Nos. 00-7095, -7096, -7098 (Fed. Cir. Aug. 16, 2001). In that decision the Federal Circuit directed the Department to conduct expedited rulemaking which will either explain why certain regulations-38 C.F.R. § 3.22 and 38 C.F.R. § 20.1106-are not inconsistent on the "hypothetical entitlement" issue under § 1318 or revise the regulations so that they are consistent. The temporary stay on the adjudication of certain 38 U.S.C. § 1318 claims, including the claim in this case, will remain in effect pending the completion of the directed rulemaking. REMAND There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2001)) became law. This law redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminated the concept of a well-grounded claim. In August 2001, VA issued regulations implementing the provisions of VCAA "to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits." See 66 Fed. Reg. 46520 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). A review of the record in this case reflects that while the evidence is rather voluminous, it may be briefly summarized. The Certificate of Death relating to the veteran shows that he died in October 1999. The cause of death listed on this document was pulmonary hemorrhage, with no other cause listed as contributing to death. No autopsy was performed. At the time of his death, the veteran was service connected for moderate bilateral varicose veins, rated 10 percent disabling; bilateral hallux valgus with bunions and callous formation and tender metatarsal heads, rated 10 percent disabling; and for history of pyuria, hematuria with genito- urinary infection with residuals of occasional pain, rated non-compensably disabling. The veteran's combined service- connected disability evaluation was 20 percent. The appellant contends that the veteran's fatal pulmonary hemorrhaging was caused by his exposure to Agent Orange when he served in Vietnam. She understood the veteran's duties in Vietnam to include "mixing Agent Orange and loading it in the airplanes." In support of her contention the appellant submitted a June 2000 statement from a physician who treated the veteran during his terminal illness, Lawrence R. Dultz, MD., a specialist in pulmonary diseases. This statement is set out below in its entirety. I have been asked to comment on the likelihood of the late (veteran's) illness being a result of toxic exposures. The patient died with idiopathic diffuse alveolar hemorrhage. An open lung biopsy performed at Union Hospital which was subsequently sent to the Mayo Clinic for second opinion failed to reveal any sign of a specific etiology such as a significant vasculitis or some other inflammatory condition. I am aware that (the veteran) served in Viet Nam and during those years, Agent Orange was used heavily as a defoliant. Given that no other explanation exists for this gentleman's alveolar hemorrhage, and given that the agent was frequently ingested by the inhaled route, I believe that it is at least as likely as not likely that the toxic exposure from Viet Nam caused his fatal pulmonary hemorrhage. It is quite conceivable that an exposure 30 to 35 years prior to his final illness could have caused his death. An analogy would be mesothelioma associated with asbestos inhalation which can occur 50 or 60 years after the event. In order to establish service connection for the cause of the veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must, singly or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was an actual, causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To establish service connection for a particular disability, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. § 1110. When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the veteran's service, or by evidence that a presumption period applied. See 38 C.F.R. §§ 3.303, 3.307, 3.309. A disease associated with exposure to certain herbicide agents listed in Sec. 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) 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 and has a disease listed at Sec. 3.309(e) 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served 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)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of Sec. 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 Sec. 3.307(d) are also satisfied. Chloracne or other acneform disease consistent with chloracne Hodgkin's disease Multiple myeloma Non-Hodgkin's lymphoma Acute and subacute peripheral neuropathy Porphyria cutanea tarda Prostate cancer Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs also has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-41,449, and 61 Fed. Reg. 57,586-57,589 (1996); Notice, 64 Fed. Reg. 59,232- 243 (Nov. 2, 1999). There also is authority to establish service connection for disability due to Agent Orange exposure with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). In this case, the disability identified as causing the veteran's death, pulmonary hemorrhage, is not included among those enumerated at 38 C.F.R. § 3.309(e) for which service connection is presumed. In McCartt v. West, 12 Vet. App. 164 (1999), the United States Court of Appeals for Veterans Claims (Court) held that because there is no evidence that the appellant has developed an enumerated disease, the Board's implicit determination that the appellant had presumptive in-service exposure was erroneous as a matter of law. Consequently, the Court remanded the matter to the Board to make a determination, supported by an adequate statement of reasons and bases, as to whether the appellant had submitted evidence of exposure to Agent Orange during service. The statement of Dr. Dultz links the veteran's terminal illness with exposure to Agent Orange. Dr. Dultz's opinion is premised upon an assumption that the veteran had been exposed to Agent Orange during his military service. He did not identify any specific evidence to support his conclusion in that regard. As noted above, the Court has held that the presumption of exposure to Agent Orange in service is only triggered when the presence of any of those diseases enumerated at 38 C.F.R. § 3.309(e) is shown and that any implicit determination that the veteran had presumptive in- service exposure was erroneous as a matter of law. With respect to evidence supporting the conclusion that the veteran was exposed to Agent Orange in Vietnam, the record confirms that the veteran served in Vietnam beginning in September 1966. At that time the veteran was assigned to the 366 FMS (presumably Field Maintenance Squadron) at Phan Rang Air Base, as an aircraft jet mechanic. In October 1966, he was apparently re-assigned to the 35 FMS at Phan Rang Air Base as an aircraft maintenance technician. The veteran's personnel records do not reflect when his assignment with the 35th FMS was completed, but his service medical records show that the examination conducted in connection with his discharge from service in July 1967, took place at the 35 Tac Dispensary which apparently was located in Vietnam, while the veteran was still assigned to the "35 FMS (PACAF)." As such, it may be concluded that the veteran's Vietnam service was from September 1966 to August 1967, and that he remained with the 35 FMS from October 1966 until his discharge in 1967. Since the evidence establishes that the veteran served in Vietnam, it is the Board's view that an attempt should be made to ascertain whether aircraft from the Phan Rang Air Base were used to spray Agent Orange, whether Phan Rang Air Base area was subject to any spraying of herbicide agents, and if so, what amount of spraying occurred in that area and for how long a period of time spraying was conducted. It also should be ascertained if the personnel of the 366th and 35th FMS, and the veteran in particular, were assigned to loading herbicides into aircraft or otherwise involved in the transfer or maintenance of herbicide drums or herbicide aircraft. Although the delay occasioned by this Remand is regrettable, under the circumstances described above, this case is being returned to the RO for the following action: 1. The RO should contact the United States Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Springfield, VA 22150, and request any information which might corroborate the veteran's alleged exposure to herbicide agents. In particular, any information reflecting that Phan Rang Air Base was an area subject to spraying of herbicides between September 1966 and August 1967 should be obtained, as well as any information concerning whether during the period between September 1966 and August 1967, members of the 366 FMS and/or the 35 FMS were employed in the loading of herbicides onto aircraft for spraying or otherwise involved in the transfer or maintenance of herbicide drums or herbicide aircraft. 2. The RO must review the claims file and ensure that all notification and development action required by the VCAA and the implementing regulations are fully complied with and satisfied. 3. Upon completion of the above, the RO should review the evidence of record and enter its determination as to whether service connection for the cause of the veteran's death is warranted. If that decision remains adverse to the appellant, she and her representative should be provided a supplemental statement of the case which must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue remaining on appeal. After a reasonable period of time in which to respond has been provided, the case should be returned to the Board for further review. Although no further action by the appellant is necessary unless she receives notice, she has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Gary L. Gick Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2001).