Citation Nr: 1435036 Decision Date: 08/06/14 Archive Date: 08/20/14 DOCKET NO. 12-07 123 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and L.C. ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970. He died on March [redacted], 2004. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Pension Management Center at the RO in St. Paul, Minnesota, which denied the claim. Jurisdiction of the claim was later transferred to the Des Moines, Iowa, RO. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Veterans Benefits Management System" and on the "Virtual VA" system to insure a total review of the evidence. The Veteran testified before the undersigned at an April 2013 videoconference hearing. A transcript has been associated with the file. The Board received additional evidence in May and July 2013. The appellant has waived RO consideration of that evidence. The Board may consider the appeal. See 38 C.F.R. § 20.1304(c) (2013). FINDINGS OF FACT 1. During his lifetime, the Veteran was not in receipt of service connection for any disability. 2. The Veteran died on March [redacted], 2004, as the result of lung cancer. 3. The Veteran was not exposed to environmental contaminants, such as tactical herbicides, during active service. 4. There is no in-service event, injury, or disease to which the lung cancer may be related. 5. The Veteran's lung cancer was not chronic during service, productive of symptoms continuously since service separation or manifest to a compensable degree within one year of the Veteran's 1970 separation from service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with regard to the appellant's claim. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. A March 2011 letter fully satisfied the duty to notify provisions pertaining to claims for service connection for the cause of a veteran's death prior to initial adjudication of the appellant's claim in August 2011. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The Board also concludes VA's duty to assist in obtaining records has been satisfied. The Veteran's service and VA treatment records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The duty to assist also includes obtaining an autopsy or medical opinion when such is necessary to make a decision on the claim, as defined by law. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board concludes an autopsy or medical opinion is not needed in this case. An autopsy is not needed because the cause of the Veteran's death is known. Daves, 21 Vet. App. at 50-51. A medical opinion is not necessary because the only evidence indicating the Veteran "suffered an event, injury or disease in service" consists of lay evidence which the Board rejects as either incompetent or incredible and affords no probative weight. A medical opinion could not provide competent evidence that the Veteran was exposed to environmental contaminants, such as tactical herbicides, during his period of active service. In such cases, VA is not obligated, pursuant to 38 U.S.C.A. § 5103A(a), to provide an appellant with a medical opinion because there is no reasonable possibility that a medical opinion would aid in substantiating the appellant's claim. DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). As there is no indication that any failure on the part of VA to provide notice or assistance that reasonably affects the outcome of this case, the Board finds that any such notice or assistance failure is harmless. See Mlechick v. Mansfield, 503 F.3d 1340 (2007). II. Service Connection for the Cause of the Veteran's Death The appellant seeks service connection for the cause of the Veteran's death. She contends that the Veteran was exposed to a variety of environmental contaminants while stationed in Colorado, which led to the development of lung cancer and, ultimately, to the Veteran's death. When a veteran dies of a service-connected disability, the veteran's surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service caused or contributed substantially or materially to the veteran's death. Id. A service-connected disability is the principal cause of death when that 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). A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. The Veteran was not in receipt of service connection for any disability at the time of his death. The Board's inquiry is restricted to evaluating whether service connection should have been established for the principal or contributory causes of death. 38 C.F.R. § 3.312(a). Service connection is awarded for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d). The Certificate of Death states that the Veteran died of lung cancer on March [redacted], 2004. No other diseases, injuries, or complications causing death are listed. The Veteran's treatment records from February 2004 show a diagnosis of metastatic lung cancer. Although many of the records obtained are illegible, a January 2004 hospital discharge summary indicates that the Veteran was diagnosed with lung cancer in June 2003. The appellant's main contention is that the Veteran was exposed to environmental contaminants during his period of active service. The appellant's contention contains, however, several distinct components. The Board will address each in turn. The appellant testified that the Veteran had been scheduled to travel to Vietnam during service, but was diverted and stationed in Colorado instead. April 2013 Board Hearing Transcript (Tr.) at 4. Her principal contention is that she had done research into environmental hazards and found books that described various environmental contaminants released in the Rocky Mountains, including tactical herbicides, such as those used in Vietnam. Id. After the hearing, the appellant submitted copies of several articles regarding herbicide production and storage and environmental contamination at the Rocky Mountain Arsenal (RMA) Army base in May 2013. The Board does not find the appellant's argument persuasive. The appellant's statements appear to confuse certain facts. As shown in her November 2011 Notice of Disagreement, the appellant asserted that the Veteran was exposed to carcinogens while stationed at Fort Carson, Colorado. See also May 2011 Statement in Support of Claim. In support of this assertion, she mentions research published in four manuals which she said were titled "History of Rocky Mountain Arsenal." See November 2011 Notice of Disagreement. Her hearing testimony also describes Fort Carson and RMA as a single installation. Unfortunately, Fort Carson and RMA are different installations. The RMA was located in Denver, Colorado. See, e.g., 51 Fed. Reg. 20,877 (June 9, 1986). The land comprising the RMA was transferred to the U.S. Department of the Interior by the Rocky Mountain Arsenal National Wildlife Refuge Act of 1992. Pub.L. 102-402, October 9, 1992, 106 Stat 1961. In contrast, Fort Carson is located south of Colorado Springs, Colorado, and remains an active military installation. See, e.g., 73 Fed. Reg. 25,686 (May 7, 2008). The Board finds that the appellant's statements and testimony in support of this appeal are not credible evidence of the Veteran's presence at RMA. A lay witness, such as the appellant, is competent to provide evidence that the Veteran was stationed at RMA based on her personal experiences or what she was told by the Veteran. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Yet, she has not testified that the Veteran told her he was at RMA. She also has not testified how she would know, through personal experiences or observations, that he was at RMA, not Fort Carson. Moreover, her obvious conflation of RMA with Fort Carson renders her statements and testimony unreliable. Given this confusion, the Board cannot afford the appellant's assertion that the Veteran was at RMA probative weight. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran's service personnel and treatment records do not show his presence at RMA. His service personnel records show that he was stationed at Fort Carson, Colorado, from August 1969 until his separation from service in August 1970. See DA Form 20 at 3. His service personnel records show his presence at other duty stations including Forts Polk, Benning, and Lewis. Id. There is no mention of the Veteran being stationed at or traveling to RMA in his service records. Just prior to his death, the Veteran submitted a February 2004 claim for cancer because he was stationed at Fort Carson, Colorado, and "was exposed to Agent Orange in training troops that went to Vietnam." This claim does not mention RMA. The Board must give great probative value to the Veteran's February 2004 statement and to his service records regarding the places he served. Buchanan, 381 F.3d at 1336. There is no reason to question the competency or credibility of these sources of information regarding the Veteran's duty stations. For the reasons explained above, the Board finds that the Veteran was not at RMA during his active duty service. Id. Accordingly, the Veteran was not exposed to whatever contamination existed at RMA at the time. The appellant has also raised the possibility of the Veteran's exposure to some environmental hazard at Fort Carson from living there. The appellant testified that the Veteran had been stationed at Fort Carson, Colorado, and been very active outdoors while there. April 2013 Board Hearing Tr. at 9. She reported that he claimed that he had a "feeling" something was in the environment at Fort Carson. Id. Similarly, the Veteran alleged that he was exposed to Agent Orange from troops that went to Vietnam. See February 2004 Claim. The Board finds these allegations are not competent lay evidence of the Veteran's exposure to an environmental contaminant while stationed at Fort Carson. See Jandreau, 492 F.3d at 1377. Neither the Veteran's allegation of exposure to troops nor the appellant's testimony is founded on an observation through the five senses or recall of information provided by an expert. The Veteran did not explain how he could know that the troops he trained were contaminated at the time he taught them or how he knew that any such contamination spread to him. Similarly, the appellant's testimony of the Veteran's "feeling" is without a basis for competent lay evidence. The Board assigns these statements no probative value as a result. Buchanan, at 1336. The appellant also raised the issue of exposure to herbicides away from Fort Carson. She testified that the Veteran had undergone paratrooper and officer training at a military base whose name she did not remember. April 2013 Board Hearing Tr. at 5. She testified that the Veteran said that the foliage on base had been eliminated with herbicides. Id. Again, the Board cannot afford this testimony probative value. The appellant's testimony does not communicate how the Veteran knew that defoliants had been used on base. The vegetation could have simply been cut back. These assertions are without the necessary foundation in personal knowledge or recall of what a person with adequate knowledge has said. The testimony is, therefore, not competent evidence of exposure. See Jandreau, at 1377. The appellant's final argument is that the Veteran must have been exposed to herbicides during service because he developed lung cancer which is associated with herbicide exposure and that their son, born in 1982 and after the Veteran's service, had spina bifida of a type associated with the exposure of a male veteran to herbicides. April 2013 Board Hearing Tr. at 6-7; see also 38 C.F.R. §§ 3.309(e), 3.814. The Board must reject this argument also. The legal presumptions implicated by the appellant's argument reach the question of nexus only. 38 C.F.R. §§ 3.309(e), 3.814. If adequate proof of certain disabilities and of in-service herbicide exposure is produced, the presumptions would serve to relieve the appellant of producing evidence relating the disabilities to the exposure. Lung cancer and spina bifida may strike the same family in the absence of herbicide exposure or other environmental hazards. As a result, the Board may not assume away the requirement of adequate proof of in-service herbicide exposure by invocation of the nexus presumption. The Board also finds that the Veteran may not be presumed to have been exposed to herbicides during active service. The Veteran and appellant did not make statements that the Veteran ever traveled to Vietnam or Korea during active service. Indeed, the appellant testified that the Veteran had been diverted from traveling to Vietnam during service. The Veteran's service personnel records show the same. See DA Form 20 at 3. In light of the foregoing, the Board finds that the Veteran may not be presumed to have been exposed to herbicides during service. See 38 C.F.R. § 3.307(a)(6). In sum, the Board finds that the preponderance of the evidence demonstrates that the Veteran was not exposed to an environmental contaminant, such as tactical herbicides, during his period of active duty service. The evidence proffered is either not competent as to exposure or does not place the Veteran in a location where exposure could have occurred. As a result, the Board concludes that service connection for the cause of the Veteran's death is not warranted on the basis of environmental contaminant exposure, including tactical herbicide exposure. See 38 C.F.R. §§ 3.303(d), 3.307(a)(6), 3.312(a). Having rejected all of the appellant's contentions, the Board has considered other possible avenues of entitlement. Neither the appellant nor the Veteran identified any other event, injury, or disease of service to which the lung cancer may be associated. Thus, service connection for the cause of the Veteran's death on a direct service connection basis is not warranted. See 38 C.F.R. §§ 3.303(d), 3.312(a). Lung cancer is a form of malignant tumor, a "chronic disease" for disability compensation purposes. 38 C.F.R. § 3.309(a). The appellant has not argued and the record does not otherwise suggest that the lung cancer was chronic during service, productive of symptoms continuously since service, or manifest to a compensable degree within one year of separation from service. The Veteran separated from service in August 1970. See the Veteran's DD 214. The cancer was diagnosed in June 2003. January 2004 Hospital Discharge Summary. Service connection for the cause of the Veteran's death is not available under the "chronic disease" provisions. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.312(a). In light of the foregoing, the Board finds that the preponderance of the evidence is against every potentially applicable theory of entitlement. 38 C.F.R. §§ 3.303, 3.309, 3.312. As such, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ S.C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs