Citation Nr: 0520110 Decision Date: 07/22/05 Archive Date: 08/03/05 DOCKET NO. 99-09 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The veteran served on active duty from November 1958 to November 1978. He died on September [redacted], 1998. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. This claim was remanded in September 2000 and October 2003 for further development. That development having been completed, this claim now returns before the Board. FINDINGS OF FACT 1. The official death certificate shows that the veteran died in September 1998 from metastatic prostate cancer. 2. At the time of the veteran's death, service connection was in effect for the residuals of rheumatic fever, evaluated as noncompensably disabling. 3. The veteran served in Vietnam. 3. Metastatic prostate cancer is of service origin. 4. A disability of service origin was involved in the veteran's death. CONCLUSION OF LAW 1. Metastatic prostate cancer incurred during active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, (2004). 2. A service-connected disease did cause the veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). See, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law eliminates the concept of a well-grounded claim, and redefines the obligations of VA with respect to the duty to assist. The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620-32 (Aug.29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The Board notes that a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Court) invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The Court found that the 30- day period provided in § 3.159(b)(1) to respond to a VCAA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. With respect to Paralyzed Veterans of America v. Secretary of Veterans Affairs, on December 16, 2003, the President signed H.R. 2297, the Veterans Benefits Act of 2003 (the Act). Section 701 of the Act contains amendments to 38 USC §§ 5102 and 5103. The Act contains a provision that clarifies that VA may make a decision on a claim before the expiration of the one-year VCAA notice period. Veterans Benefits Act of 2003, P.L. 108- __ , Section 701 (H.R. 2297, December 16, 2003) The record reflects that VA has made reasonable efforts to notify the appellant of the information and evidence needed to substantiate her claim. The appellant was provided with a copy of the rating decision noted above, a April 1999 statement of the case, a VCAA letter dated April 2002, Board remands dated September 2000 and October 2003, and supplemental statements of the case dated October 2002 and March 2005. These documents, collectively, provide notice of the law and governing regulations, as well as the reasons for the determination made regarding her claim. By way of these documents, the appellant was also specifically informed of the cumulative evidence already having been previously provided to VA or obtained by VA on her behalf. She was also informed of what evidence VA would obtain. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The record discloses that VA has met its duty to assist the appellant in obtaining any relevant evidence available to substantiate her claim. All available relevant records identified have been obtained and associated with the claims folder. The Board notes that the April 2002 VCAA letter was mailed to the appellant subsequent to the appealed rating decision in violation of the VCAA and the appellant was not specifically informed to furnish copies of any evidence in his possession as required by 38 C.F.R. § 3.159. The Board, however, finds that in the instant case the appellant has not been prejudiced by this defect. In this regard, the Board notes the appellant was provided notice of the division of responsibility in obtaining evidence pertinent to the case and ample opportunity to submit and/or identify such evidence. Therefore, under the circumstances, and in light of the favorable decision below, the Board finds that any error in the implementation of the VCAA is deemed to be harmless error. VA has satisfied both its duty to notify and assist the appellant in this case and adjudication of this appeal at this juncture poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Factual Background The official death certificate reflects that the veteran died on September [redacted], 1998. The cause of death was listed as metastatic prostate cancer. An autopsy was not performed. At the time of the veteran's death, service connection was in effect for the residuals of rheumatic fever, rated as noncompensably disabling. The appellant's main contention is that the veteran's metastatic prostate cancer which caused his death was related to herbicide exposure in service. Specifically, the appellant contends that, while the veteran was never stationed in Vietnam, his duties while stationed in Thailand required him to periodically cross into Vietnam, and that this periodic Vietnam service is also reflected in one of his DD214s, which shows the veteran was awarded the Vietnam Service Medal with two oak leaf clusters in service. The veteran served in the Air Force. His primary specialty was a disbursement account supervisor. The veteran's administrative records show that the veteran received the Vietnam Service Medal with two Oak Leaf Clusters during that period of service. The veteran's personnel records show overseas service in Japan, and in Thailand from September 1967 to September 1968. Private medical records dated 1991 to 1998, show that the veteran was initially diagnosed with prostate cancer in 1991. He had a recurrence of this cancer, from which he eventually died, in 1996. A February 1999 statement is of record from the former Chief of the Military Pay Section for the veteran's unit. He indicated that the veteran was assigned to his section, based in Thailand. He indicated that he could not remember specifically where the veteran traveled, but that it was not unusual for men from his base to travel all over Southeast Asia. A letter from the veteran's private physician, dated March 1999, indicates that he treated the veteran initially in October 1991 for adenocarcinoma of the prostate. He indicated that this letter was written in support of the appellant's claim that the veteran's malignancy could possibly be due to herbicide exposure during his tour of duty in Vietnam. The examiner indicated that recent medical research suggested that Vietnam veterans exposed to herbicides may present at a younger age with advanced disease that is less responsive to therapy, and he stated that the veteran was diagnosed with prostate cancer at a younger age. A statement from the veteran's wife dated October 2000 indicated that the veteran told him on several occasions that he had to travel to Vietnam to conduct his payroll duties. A statement from the veteran's brother dated November 2000 indicates that he recalled the veteran describing to him that he had to enter Vietnam on several occasions in his duties as a paymaster. Also dated November 2000 is a letter from a friend of the veteran. He indicated that he recalled discussing with the veteran cultural displays and events that he witnessed in Vietnam, and that the veteran reported witnessing as well. This veteran indicated that he felt from the level of detail in the veteran's discussions that the veteran had been in Vietnam and witnessed some of the same events he did. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for a chronic disease, i.e. cancer, which was manifested to a degree of 10 percent disabling within one year following the veteran's retirement from active duty. 38 U.S.C.A. § 1101, 1112, 1113, 11131, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant is entitled to service connection on a secondary basis when it is shown that the claimant's service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Applicable criteria provide that a veteran who, during active military, naval, or air service, served in Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to a 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 a herbicide agent shall be the last date on which he or she served in Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii) and the "Veterans Education and Benefits Expansion Act of 2001," Pub L. No. 107-103, 115 Stat. 976 (2001). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961 and ending on May 7, 1975 in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. 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 38 C.F.R. § 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 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), 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) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transit peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309 (e), Note 2. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of the Department of Veterans Affairs 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, 67 Fed. Reg. 42600-42608 (2002). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; nasal and/or nasopharyngeal cancer; bone cancer; breast cancer; female reproductive cancers; urinary bladder cancer; renal cancer; testicular cancer; leukemia; abnormal sperm parameters and infertility; motor/coordination dysfunction; chronic peripheral nervous system disorders; metabolic and digestive disorders (other than diabetes mellitus); immune system disorders; circulatory disorders; respiratory disorders (other than certain respiratory cancers); skin cancer; cognitive and neuropsychiatric effects; gastrointestinal tumors; brain tumors; and, any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 64 Fed. Reg. 59232 (November. 2, 1999). See also Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001). This does not, however, preclude the veteran from establishing service connection for any of these conditions, on a basis other than exposure to herbicides. Dependency and indemnity compensation may be awarded to a veteran's surviving spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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 either caused or contributed substantially or materially to 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. 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 a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). 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. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 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. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C. F. R. § 3.312. 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)(3), (4) (2003); Lathan v. Brown, 7 Vet. App. 359 (1995). In this regard, the veteran's personnel records do not reflect any service in Vietnam. However, his administrative records show that he was stationed in Thailand during the Vietnam conflict as an account disbursement supervisor. Both his spouse and brother indicated that the veteran told them he had to travel to Vietnam as part of his duties as a paymaster. This information is consistent with the statement from the veteran's former Chief of the Military Pay Section for his unit who indicated that it was not unusual for men from his base to travel all over Southeast Asia. After reviewing the record and resolving all doubt in appellant's favor, the Board finds that the veteran did serve in Vietnam. 38 C.F.R. § 3.102. As the veteran has now been found to have service in Vietnam during the applicable period, the veteran is presumed exposed to herbicides during such service. Furthermore, the Board notes that prostate cancer is a condition listed in the applicable regulations as a disability which may be presumed service connected based on exposure to herbicides. Therefore, the veteran's prostate cancer, which caused the veteran's death, is found to be related to his exposure to herbicides during his service in Vietnam, and entitlement to service connection for the cause of the veteran's death is granted. ORDER Entitlement to service connection for the cause of the veteran's death is granted. ____________________________________________ ROBERT P. REGAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs