Citation Nr: 0624092 Decision Date: 08/09/06 Archive Date: 08/18/06 DOCKET NO. 03-20 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kristi Barlow, Counsel INTRODUCTION The veteran had periods of active service from November 1960 to December 1986. He died in January 2002, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming, which denied the benefit sought on appeal. The Board first considered this appeal in June 2004, and remanded the claim for additional development. All requested development was performed and the appeal is now properly returned to the Board for further appellate consideration. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The veteran developed diabetes mellitus subsequent to his active duty service and the disease is presumed to be a result of exposure to herbicides in the Republic of Vietnam. 3. The veteran's diabetes mellitus was a contributory cause of his death. CONCLUSION OF LAW The veteran's death was caused by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with this appeal given the favorable nature of the Board's decision. Any error in the failure to provide notice involving the downstream elements of rating and effective date is harmless at this time, and can be corrected by the RO following the Board's decision. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran served honorably in the United States Air Force during the Vietnam conflict. His personnel records show that he was stationed in Thailand for six months and twenty-three days during his tour from March 1971 to March 1975. Performance evaluations written during that time period from a command center in Japan show that the veteran was the Squadron Aircraft Maintenance Controller with duties including transmitting aircraft. Although his service personnel records do not specifically reflect service in the Republic of Vietnam, the veteran's mother and sister both submitted statements reflecting their recollection of receiving letters and telephone calls during the veteran's service in Thailand which mentioned his service in Vietnam and his exposure to herbicides while there. The veteran developed diabetes mellitus subsequent to his active duty and was treated for the disease for many years. He was hospitalized in January 2002, with respiratory difficulties and was determined to have pneumonia. The veteran died during his hospitalization of adult respiratory distress syndrome (ARDS) and his treating physician from June 2000 until that time opined that the veteran's diabetes was a contributing factor to his demise. Two physicians who treated the veteran during his January 2002 hospitalization opined that it was certainly possible that the veteran's underlying disabilities contributed to the development of ARDS. The appellant credibly testified before the Board that the veteran had told her of his missions into Vietnam during his service in the 1970's and his belief that he had been exposure to herbicides such as Agent Orange. The appellant contends that the veteran's diabetes mellitus is a service- connected disability that caused his ultimate demise in 2002. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a pre-existing injury in the active military, naval or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. See 38 C.F.R. § 3.312(a). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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. See 38 C.F.R. § 3.312(c)(1). With regard to disabilities a veteran attributes to exposure to Agent Orange, the law provides that for veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending May 7, 1975, service connection may be presumed for certain diseases enumerated by statute and regulations that become manifest within a particular period, if any such period is prescribed. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). If a veteran is found to have been exposed and/or presumed to have been exposed to an herbicide agent during active service in the Republic of Vietnam, certain diseases, including diabetes mellitus, 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. See 38 C.F.R. § 3.309(e). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Given the evidence as outlined above, the Board finds that the statements of the veteran's mother and sister substantiate the assertion that the veteran had service in Vietnam between 1971 and 1975. As such, it is presumed that the veteran was exposed to Agent Orange. With his later development of diabetes mellitus without additional evidence to suggest any other causation, the Board finds that diabetes was incurred as a result of active service. A review of the medical evidence reveals that the veteran's treating physician from June 2000 to December 2001, unequivocally determined that diabetes was a contributory cause of the veteran's death. The physicians who attended the veteran at the time of his death agreed that it was certainly plausible that diabetes contributed to the development of ARDS as the cause of ARDS is not known. Consequently, when resolving all reasonable doubt in favor of the appellant, the Board finds that the veteran's death was caused by service-connected disability and her appeal is granted. ORDER Service connection for the cause of the veteran's death is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs