Citation Nr: 22058672 Decision Date: 10/19/22 Archive Date: 10/19/22 DOCKET NO. 16-46 755A DATE: October 19, 2022 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran died in January 2013; service connection was in effect for seborrheic dermatitis, rated 30 percent disabling. 2. The death certificate listed coronary artery disease which had been present for 10 years at the time of death in January 2013. 3. The evidence is persuasively against finding that coronary artery disease was incurred in service or is otherwise related to service or to service-connected seborrheic dermatitis; the disorders that caused or contributed to the Veteran's death began many years after service and were not caused by any incident of service. 4. The Veteran's death was not caused by, or substantially or materially contributed to, by an event, injury, or disease incurred in active military service. CONCLUSION OF LAW The criteria for service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the Air Force from October 1970 to April 1974. He passed away in January 2013. The Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from the October 2013 Department of Veterans' Affairs (VA) Regional Office (RO) rating decision that denied service connection for the cause of the Veteran's death. In March 2020, the Board denied the appeal. In May 2020, the Board granted the Appellant's motion to vacate the March 2020 decision, and the matter was remanded to the RO for the issuance of a Supplemental Statement of the Case (SSOC) to allow for initial RO consideration of pertinent evidence submitted since the issuance of the May 2016 Statement of the Case (SOC). Following the issuance of a June 2020 SSOC by the RO, the Appellant requested a Board hearing. The Appellant presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2021. At the hearing the undersigned VLJ agreed to hold the record open to afford the Appellant the opportunity to submit additional evidence in support of her appeal. In September and October 2021, the Appellant's attorney submitted medical opinion evidence and argument directly to the Board. The Board remanded the claim to the RO in February 2022. In July 2022, the Appellant's attorney submitted argument directly to the Board. The matter has been returned to the Board for appellate review. Cause of Death To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. In this regard, it is not sufficient to show that the service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c) (1). 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). For example, where the service-connected condition affects a vital organ and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312 (c)(3). 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). To establish service connection for a disability, the evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease of injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to an herbicide agent if a listed chronic disease [including ischemic heart disease and diabetes mellitus] manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307 (d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Notwithstanding, service connection for a disability claimed as being due to presumptive exposure may still be established by showing that the disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994) (citing 38 U.S.C. §§ 1113 (b), 1116 and 38 C.F.R. § 3.303. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. 38 C.F.R. § 20.1106 provides that death benefits such as COD are decided without regard to any prior disposition during the Veteran's lifetime. Entitlement to service connection for cause of death the Veteran's death is denied. The Appellant contends that the Veteran's death in January 2013 is causally related to service. She asserts that he had military environmental exposure while performing duties at Plattsburgh, New York Air Force Base, and the exposure led to conditions that caused his death. She testified that she knew him for 44 years, from 1977 to the time of his death, and the Veteran many times told her in great detail about mixing chemicals he thought to be Agent Orange at the base. He reported to her that he used to mix this herbicide white powdery substance chemical, and while he was mixing it, it would disperse in the air, and while it did that, it often stuck to his clothes and his skin. He reported he never was issued any protective gear while he was performing this job function. He also mentioned the perimeter of the base was sprayed with a substance that would clear the vegetation for safety reasons. It was indicated that he was on a two-week detail mixing Agent Orange without any protective clothing or a shirt while another airman sprayed the herbicide on the flight line, golf course, and other sites around the base. During his lifetime, service connection was established for seborrheic dermatitis, rated 30 percent disabling. STRs are silent for any findings, complaints, or treatment of coronary artery disease or diabetes. Post service treatment records reflect medical problems to include heart disease diabetes, manifesting initially many years following service. Diabetes was reportedly present since 1996. A May 2005 VA examination reflects the opinion that atherosclerotic heart disease status triple bypass surgery is likely secondary to diabetes mellitus. At that time, a history of hypertension was denied, and hypertension was not diagnosed. The death certificate indicates the Veteran's cause of death was coronary artery disease which had been present for 10 years at the time of death in January 2013. Appellant does not contend, and the record does not suggest, that the Veteran had service in Vietnam. She maintains that the conditions that led to his death were caused by the chemical exposure at Plattsburgh AFB. In May 2013, the Appellant indicated she would like to apply for Dependency and Indemnity Compensation (DIC) and wished to seek service connection due to exposure to Agent Orange. Service personnel records reflect that the Veteran was a pavement maintenance specialist at Plattsburg AFB where he served with a civil engineering squadron. His listed duties show he maintained and repaired roads, runways, walks, railroads, and their related drainage systems; maintained and repaired vegetated areas, such as lawns, cemeteries, and recreational areas; participated in ice and snow removal during the winter months. Development was undertaken related to whether the Veteran was exposed to herbicide agents at Plattsburg AFB. In December 2009, the Compensation and Pension (C&P) Service stated that a listing of herbicide use and test sites outside Vietnam was provided to its office by the Department of Defense (DoD), and that this list contained 71 sites within the United States and in foreign countries where herbicide/Agent Orange use or testing is acknowledged, but that the list did not contain names of participants, references to routine base management activities such as range management, brush clearing, etc., and that DoD had advised that such small scale herbicide applications had not been compiled into a list. The C&P Service noted that commercial herbicides are used on every military base in the world and that these do not fall under the statutes and regulations governing presumptive service connection for tactical herbicide exposure. In a March 2016 inquiry to the DoD to specifically address the Veteran's allegation of exposure to Agent Orange in Plattsburg, NY, the DoD responded: "DoD has not identified any location in New York, including Plattsburg AFB where Agent Orange was used, tested, stored, or transported. Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. There were no combat operations at Plattsburgh AFB during those years and so there was no need for Agent Orange use there. Additionally, New York was not on the Agent Orange shipping supply line, which went directly from Gulfport, Mississippi to South Vietnam via merchant ships. If the Veteran actually was associated with mixing herbicides, they were a commercially available type and not Agent Orange." In November 2019, the appellant's attorney submitted information about contamination at Plattsburgh AFB and clean-up of the site, an Environmental Protection Agency (EPA) Report on Plattsburgh Air Force Base, New York, EPA ID #NY4571924774, Region 2. Review of this report showed the EPA has identified the Plattsburgh Air Force Base as a site contaminated with unburned JP-4 jet fuel, waste solvents, pesticides and volatile organic compounds (VOCs). The report does not show that there was the storage or use of herbicides sprayed on the grounds of the base or along the perimeter of Air Force Base. Appellant has submitted a July 2021 medical opinion from M. B. S., M.D., in which Dr. S. opines that (1) the Veteran's diabetes was at least as likely as not a direct result of in-service organic solvent exposure, and (2) the Veteran's coronary artery disease and death are more likely as not a result of his diabetes. Dr. S. observed that, "Unfortunately, Plattsburgh [AFB] has been designated a superfund site. As a Superfund site, the contaminants of this site include multiple organic solvents." We note that a December 2004 letter from another doctor, L.J.B., M.D., contains the opinion that the Veteran carries diagnoses of diabetes mellitus and coronary artery disease, and it is likely that diabetes mellitus was a causative factor in the development of his coronary artery disease. There is no rationale provided. Appellant has added information to the record referencing that Plattsburgh AFB has been declared a Superfund site by the EPA. The attorney has argued that the exposure to JP-4 jet fuel and waste solvents, VOCs, DDT, TCE and other organic compounds at Plattsburgh AFB from October 28, 1970, to April 26, 1974, could have caused the Veteran's diabetes, then his subsequent hypertension and coronary artery disease which led to his untimely death. In the February 2022 remand decision, the Board directed that a VA medical opinion be obtained addressing whether the Veteran's death was due to a service-connected disability when such disability was either the principal or contributory cause of death, to include discussion of whatever contaminant exposure he encountered at Plattsburgh AFB. In April 2022, the Appellant's attorney submitted three articles. These included the 1997 NIH abstract entitled, "Short-term exposure to JP-8 jet fuel results in long-term immunotoxicity", a 2016 review article from Journal of Taibah University Medical Services, "Coronary artery disease and diabetes mellitus", and a 2014 NIH-PA author manuscript entitled, "Type 2 diabetes mellitus and hypertension: An update." A VA medical opinion was rendered in June 2022 by a VA doctor who reviewed the record. The examiner was asked about whether the Veteran's coronary artery disease was related to whatever contaminant exposure he encountered at Plattsburgh AFB, whether his coronary artery disease was due to diabetes mellitus and whether this was related to his exposure to any of the identified chemicals. They were asked whether the Veteran had a disability for which presumptive service connection may have been available, to include heart disease and diabetes mellitus, and that may be considered a disability of service origin that affected a vital organ. The examiner found the Veteran's death was less likely than not (less than 50 percent probability) related to service. They explained that review of the medical record and STRs shows no evidence of the diagnosis, treatment or symptoms suggestive of CAD or DM II while on active duty or within one year of separation from military service. They essentially noted that military environmental exposure has not been identified or conceded. The examiner also found it less likely than not that the condition that caused death was proximately due to or the result of Veteran's service-connected condition. They explained that while type 2 diabetes does not cause coronary artery disease, many people with type 2 diabetes also have conditions that increase the risk of developing coronary artery disease. These conditions are hypertension, abnormal cholesterol and high triglycerides, obesity and lack of physical activity. UpToDate 2019. It is usually not possible to know exactly why one person develops a condition and another doesn't. But research has shown that certain risk factors may increase a person's chances of developing a condition. Most risk (and protective) factors are initially identified in epidemiology studies. In these studies, scientists look at large groups of people and compare those who develop a condition with those who don't. Such studies, on their own, cannot prove that a behavior or substance causes any condition. For example, the finding could be a result of chance, or the true risk factor could be something other than the suspected risk factor. But findings of this type sometimes get attention in the media, and this can lead to wrong ideas about how the condition starts and spreads. While Dr. S[.'s] opinion is appreciated, it is not supported with current medical literature and is his opinion only. The examiner found that the Veteran's principal cause of death, coronary artery disease, was not at least as likely as not (50 percent or greater probability) incurred in or caused by (the) contaminant exposure he encountered at Plattsburgh AFB during service. The rationale was that review of the medical record and STR shows no evidence of the diagnosis, treatment or symptoms suggestive of CAD, DM II while on active duty or within one year of separation from military service. It was again noted that military environmental exposure has not been identified or conceded. While type 2 diabetes does not cause coronary artery disease, many people with type 2 diabetes also have conditions that increase the risk of developing coronary artery disease. These conditions are hypertension, abnormal cholesterol and high triglycerides, obesity and lack of physical activity. UpToDate 2019. It is usually not possible to know exactly why one person develops a condition and another doesn't. But research has shown that certain risk factors may increase a person's chances of developing a condition. Most risk (and protective) factors are initially identified in epidemiology studies. In these studies, scientists look at large groups of people and compare those who develop a condition with those who don't. Such studies, on their own, cannot prove that a behavior or substance causes any condition. For example, the finding could be a result of chance, or the true risk factor could be something other than the suspected risk factor. But findings of this type sometimes get attention in the media, and this can lead to wrong ideas about how the condition starts and spreads. While Dr. S[.'s] opinion is appreciated, it is not supported with current medical literature and is his opinion only. Ultimately, the VA doctor's June 2022 opinion was wholly against the claim. The Veteran's attorney argues in July 2022 that the cause of death is related to service as it is at least as likely as not that the Veteran was exposed to JP-4 jet fuel, waste solvents, VOCs, DDT, TCE and other organic compounds at Plattsburgh AFB from October 28, 1970, to April 26, 1974. He urges that the Veteran was likely exposed to organic compounds detected by the EPA in his duties as pavement specialist there. He cited to the Veteran's description of his duties as well as those of a pavement specialist as described by the Air Force. He thus urges that the Veteran should be found entitled to service connection for diabetes and coronary artery disease as secondary to diabetes as set forth by Dr. S. Critically, the lay statements of the Veteran and Appellant, and testimony from the Appellant, are not competent evidence that the Veteran was exposed to Agent Orange in service. Unfortunately, a layperson's assertions indicating exposure to gases or chemicals during service are not considered to be sufficient evidence alone to establish actual exposure. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Finally, the Appellant has not demonstrated that she (or the Veteran) is(were) competent to identify herbicides, including those for which presumptions of service connection may apply. See 38 C.F.R. § 3.307 (a)(6); see also Bardwell. Thus, assertions regarding exposure to herbicide agents, detailed in the testimony, are not found to be competent evidence. While the Board has considered Dr. S.'s opinion, as well as the literature and the argument submitted in this claim by/for the Appellant, the evidence is persuasively against the claim. There is no presumption that the Veteran was exposed to chemicals that led to the conditions that caused his death. The DoD information again does not show that there was the storage or use of herbicides sprayed on the grounds of the base or along the perimeter of Air Force Base. While the above information from the EPA is acknowledged, military environmental exposure has not been identified or conceded for this Veteran. The June 2022 VA medical opinion is highly probative evidence against the claim. The examiner demonstrates they were well-informed, the opinion is fully articulated and well-reasoned, with consideration of all of the evidence to include the conflicting evidence. It addresses Dr. S.'s opinion and provides a well-supported rationale for rejecting the opinion. It thoroughly considered the Appellant's contentions. The VA opinion is the most persuasive evidence on the matter of a relationship between the condition that led to the Veteran's death and service. The Appellant is not competent to render an opinion on this matter of medical complexity. Her opinion is thus outweighed by the VA medical opinion as to the cause of death. The record persuasively is against finding that coronary artery disease is secondary to a service-connected disability or is related to service. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for the cause of the Veteran's death is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38U.S.C. §5107 (b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The claim is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.