Citation Nr: 22021274
Decision Date: 04/08/22 Archive Date: 04/08/22
DOCKET NO. 11-02 721A
DATE: April 8, 2022
ORDER
Entitlement to service connection for the Veteran's cause of death is denied.
FINDINGS OF FACT
1. The Veteran died in December 2005. The death certificate identified the immediate cause of death as stroke due to acute myocardial infarction, with ischemic cardiomegaly and cardiogenic shock listed as other significant conditions that contributed to death but did not result in the underlying cause.
2. At the time of the Veteran's death, he was not service connected for any disabilities.
3. The Veteran was not exposed to herbicide agents such as Agent Orange and cannot be presumed to have been exposed.
4. No condition contributing to the cause of the Veteran's death is shown to have had its onset in service or to be otherwise related to active military service.
CONCLUSION OF LAW
A disability incurred in or aggravated by service, or a disability that is otherwise related to service, did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C. §§ 1110, 1116A, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307 3.312.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty from July 1965 to July 1969. The Veteran died in December 2005 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ).
In a February 2011 substantive appeal, the appellant requested a Travel Board hearing at a local VA office. VA sent the appellant a September 2011 letter informing her that an October 2011 Travel Board hearing had been scheduled. The appellant called VA in October 2011 and withdrew her hearing request.
This matter was previously before the Board in September 2015 and June 2018.
The Veteran died in December 2005. The death certificate listed the cause of death as stroke due to ("initiated" by) acute myocardial infarction, with ischemic cardiomegaly and cardiogenic shock noted as other significant conditions that contributed to death but did not result in the underlying cause. The appellant contends that the Veteran's death was caused by in-service exposure to herbicide agents. Alternatively, the appellant argues that the Veteran's cause of death was due to chemical- or materials-exposure related to the Veteran's service as an aircraft mechanic.
Service connection for the cause of a veteran's death may be granted if a disability incurred in or aggravated by service was either the principal cause or a contributory cause of the veteran's death. 38 U.S.C. § 1310 ; 38 C.F.R. §§ 3.303, 3.310, 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b).
A contributory cause of death is inherently one not related to the principal cause. For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially; combined to cause death; or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). 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.
Regarding the assertion of exposure to herbicide agents in service, herbicide-agent exposure is presumed for veterans who served in the Republic of Vietnam from January 1962 to May 1975. 38 C.F.R. § 3.307(a)(6). Service in Vietnam includes duty or visitation to Vietnamese land as well as any presence within the 12 nautical mile territorial sea of Vietnam (also referred to as Blue Water service). 38 U.S.C. § 1116A; 38 C.F.R. § 3.307(a)(6); Procopio v. Wilkie, 913 F.3d 1371, 1380 81 (Fed. Cir. 2019) (en banc).
The appellant has proposed two theories of herbicide-agent exposure. First, the appellant asserted that the Veteran served on an aircraft carrier with the territorial waters of Vietnam. Second, the appellant contended that the Veteran could have worked on aircraft that flew "dustoff" missions to Vietnam. According to a printout from a veterans reconnection website (159thdustoff.net, accessed by the appellant in February 2008), "dustoff" missions were performed by helicopters sent to transport wounded troops from the field to evacuation hospitals. For the reasons that follow, the Board has determined that the weight of the evidence is against a finding that the Veteran was exposed to herbicide agents, either by presumption or directly.
For the first theory service within 12 nautical miles of Vietnam the evidence shows that the Veteran served as an aircraft mechanic, including service from March 1969 to July 1969 on the aircraft carrier the USS Kearsarge (CVS-33) as part of the Anti-Submarine Squadron Two One (VA-21). In July 2017, the Defense Personnel Records Information Retrieval System (DPRIS) reviewed the 1969 Kearsarge command history and April 1969 to June 1969 deck logs. The documents reviewed failed to mention the ship docking in Vietnam; the ship passing through inland waterways; or the ship's personnel stepping foot in Vietnam.
A May 2020 Blue Water Navy Ship Locator Dashboard breakdown of the Kearsarge's deck logs showed that the Kearsarge was never within 12 nautical miles of Vietnam, including during the March 1969 to July 1969 period when the Veteran served on the Kearsarge. Similarly, in a November 2020 Records Research Response, a VA professional researcher reviewed the Military Records Research Center digital image repository, the 1969 Command History Report for the Kearsarge, and the 1969 Command History submitted by the Anti-Submarine Squadron Two One and found no evidence documenting service on Vietnamese land, inland waterways, or eligible offshore waters.
The Board notes at this point that the May 2009 rating decision and a January 2011 statement of the case both indicated that the Veteran's ship docked in Vietnam. The AOJ did not reference the evidence relied on for these statements, however, and the weight of the evidence plainly demonstrates that the Kearsarge never entered the waters within 12 nautical miles of Vietnam, let alone docked in Vietnam. Accordingly, the Board finds that the evidence clearly and convincingly establishes that the ship never docked in Vietnam.
The appellant's attorney argued in July 2021 that the Board should grant the appellant the benefit of the doubt and find that the Veteran served within 12 nautical miles of Vietnam because the Kearsarge was "directly on the line to qualify for 'Blue Water' service." The attorney cited no evidence to support this, however, only the idea that the ship was near the Blue Water boundary, "ships are not stationary," and the ship's coordinates were only recorded at specific times. The Board gives little weight to this tenuous theory when considered against the relevant and credible evidence compiled in the July 2017, May 2020, and November 2020 records. A clear, bright defining line for presuming exposure is established, and there is simply no evidence the Veteran ever crossed such, Thus, there is no reasonable doubt regarding the Kearsarge's location in relation to the Blue Water zone during the Veteran's period of service on the ship.
Regarding the appellant's second theory exposure to herbicide agents through aircraft that participated in "dustoff" mission the evidence is insufficient to support a finding that such missions were conducted from the Kearsarge while the Veteran served on board, that the Veteran serviced such aircraft, or that any potential intermittent interaction with such aircraft would have resulted in exposure to herbicide agents.
First, the claims file contains no evidence that "dustoff" missions were conducted from the Kearsarge from March 1969 to July 1969 when the Veteran served onboard. The Kearsarge logbooks failed to reference "dustoff" missions or similar flights. Although the appellant cited multiple internet sources (such as in February 2008, March 2008, February 2011, and March 2019 statements), copies of those sources (other than the 159thdustoff.net article) were not submitted to VA. Moreover, the appellant's sources were unverified, failed to address the period when the Veteran served on the Kearsarge, and/or failed to associate the Kearsarge with any specific "dustoff" missions. Similarly, internet evidence such as a Navyhistory.com comment submitted in December 2019 was unsigned, unverified, and failed to specify the periods in which search-and-rescue missions allegedly flew to and from the Kearsarge.
Second, even if the claims file contained evidence of "dustoff" missions conducted from the Kearsarge, there is no evidence in the claims file that the Veteran serviced such aircraft. The Veteran was assigned to an air anti-submarine squadron, and the appellant reported in a March 2008 statement, "I never discussed my husband's Vietnam service with him"; the only statements she attributed to the Veteran, such as in February 2011 and September 2017 statements, were related to the Veteran's training or his reports of witnessing servicemembers walking into propellers.
Third, even if the claims file contained evidence that the Veteran worked on aircraft that had participated in "dustoff" missions, there is no evidence that he regularly performed such work. 38 C.F.R. § 3.307(a)(6)(v) discusses the criteria for service connection in an analogous circumstance. In this section, individuals who "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent." Thus, not even individuals who maintained the aircraft that were used to spray herbicide agents are afforded a presumption of exposure unless they had "regular[] and repeated[]" contact with the aircraft.
In the Veteran's case, there is limited evidence of uncertain competence and limited credibility that aircraft involved in "dustoff" missions were associated with the Kearsarge. If such aircraft flew to and from the Kearsarge, the absence of evidence in the logbooks and in the sources cited by the Veteran suggests that the missions were rare at best. Additionally, by definition these aircraft were not directly involved in the transport and distribution of herbicide agents like the C-123 aircraft noted in 38 C.F.R. § 3.307, and there is no evidence that "dustoff" mission aircraft harbored dangerous levels of herbicide agents. Finally, there is no evidence that the Veteran regularly and repeatedly worked on aircraft used in "dustoff" missions.
Accordingly, the Board finds that the Veteran did not serve within 12 nautical miles of Vietnam and he was not exposed to Agent Orange through "dustoff" mission aircraft flying from Vietnam to the Kearsarge.
As a final matter, the Board will also briefly address whether the Veteran's cause of death was directly related to service through means other than herbicide-agent exposure. In the July 2021 argument, the appellant's attorney referenced only herbicide-agent exposure as a potential service-connected cause of the Veteran's death. Additionally, as discussed below, the appellant stated that she was "abandoning" posttraumatic stress disorder (PTSD) as a potential cause of the Veteran's death in March 2019, July 2019, and August 2019 statements. The appellant also limited her theory of entitlement to herbicide-agent exposure in the July 2019 statement ("I only want the Agent Orange illnesses considered").
Following the July 2019 statement, the appellant did raise one additional theory directly relating the Veteran's death to his service. In a March 2020 statement and a May 2020 letter to a congressperson (received by VA in June 2020), the appellant suggested that the Veteran's death could have been related to chemical- or materials-exposure as part of his work as an aircraft mechanic. The appellant specifically cited exposure to asbestos, trichloroethylene (TCE), hydraulic fluids, jet engine fluids, and jet fuel. The appellant listed these chemicals as potential causes of "health issues" (May 2020 letter), cancer, neurological disorder, autoimmune disorder, and Parkinson's disease.
The Board finds these statements by the appellant insufficient to grant service connection for cause of death. These statements also do not warrant a remand to obtain a VA medical opinion. In initial service connection claims, VA must provide a VA medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability (or persistent or recurrent symptoms of a disability) may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The requirement that a disability may be associated with service is a "low threshold" standard. Id. at 83.
The Board finds that this low threshold is not met because there is no evidence of an in-service injury, i.e., exposure to these chemicals. Moreover, even if the Veteran was exposed to these chemicals, there is no indication that the Veteran's death is associated with this exposure. Regarding in-service exposure to the identified chemicals, the only reference to the Veteran being exposed to chemicals is a statement from the appellant based on her reading about military aircraft mechanics generally. As she wrote in the May 2020 letter to a congressperson,
I have since discovered that aircraft mechanics . . . were often exposed to asbestos components [as insulation for parts] . . . as well as hydraulic fluids and jet engine fluids. TCE, which was used to clean parts and equipment, is also listed as a cancer-causing agent, which they used extensively.
There is no indication from the Veteran or anyone who served with him that he interacted with these chemicals.
Additionally, there is no indication that exposure to these chemicals may be associated with the medical conditions that led to the Veteran's death. In the March 2020 statement and May 2020 letter, the appellant listed medical conditions caused by the chemicals she listed without noting any sources or explaining her competence to make such connections. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428 (2011), the link between certain chemicals and medical disabilities falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 137677 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).
Accordingly, the Board has determined that remand for a VA medical opinion is not required.
The claims file contains no additional evidence of a direct link between the Veteran's service and his cause of death. Neither the appellant nor her attorney have associated the Veteran's death with an any other in-service injury, event, or disease, and service treatment records do not mention any condition listed on the death certificate. The Veteran was also evaluated as completely "Normal" in a July 1969 separation examination except for body marks, scars, or tattoos. The Board therefore finds that service connection is not warranted for the Veteran's cause of death.
As a final matter, the Board notes that VA has satisfied its duties to notify and assist the appellant in substantiating her claim for VA benefits. Appropriate notice was provided in March 2008 and July 2019, and the AOJ associated the Veteran's service records as well as private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding.
The Board acknowledges that the AOJ did not develop the appellant's contentions regarding major depressive disorder, PTSD, lung cancer, prostate cancer, diabetes mellitus, and peripheral neuropathy, as directed in the June 2018 Remand. In a March 2019 statement (received in April 2019), a July 2019 statement, and an August 2019 statement, the appellant abandoned her argument that these conditions contributed to the Veteran's death. In the July 2019 statement, the appellant noted, "I only want the Agent Orange illnesses considered." Accordingly, the AOJ no longer had a duty to develop this theory.
VA did not obtain a medical opinion addressing the Veteran's cause of death. As discussed above, however, a medical opinion was not warranted. The presumption of herbicide-agent exposure does not apply to the Veteran; the evidence does not support a finding that the Veteran was exposed to herbicide agents by "dustoff" missions; and there is neither evidence of in-service exposure to the other claimed chemicals nor an indication that the Veteran's death is associated with this exposure. VA has accordingly satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).
Neither the appellant nor her attorney have raised any issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).
WILLIAM H. DONNELLY
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board W. Ripplinger, 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.