Citation NR: 9716718 Decision Date: 05/14/97 Archive Date: 05/22/97 DOCKET NO. 94-10 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the veteran’s death, including as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Brian P. Tierney, Associate Counsel INTRODUCTION The veteran served on active duty from April 1951 to March 1954, from January 1955 to May 1955, and from September 1955 to July 1972. This appeal arises from an adverse decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, dated in June 1993. That decision denied the appellant’s claim of entitlement to service connection for the cause of the veteran’s death. The case has been forwarded to the Board of Veterans’ Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran was exposed to Agent Orange while he was stationed in Thailand during the Vietnam Era. She asserts that this exposure was the cause of the cancer that ultimately led to the veteran’s death. DECISION OF THE BOARD The Board of Veterans’ Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim for entitlement to service connection for the cause of the veteran’s death, including as secondary to Agent Orange exposure, is not well grounded. FINDING OF FACT The claim for service connection for the cause of the veteran’s death, including as secondary to Agent Orange exposure, is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of service connection for the cause of the veteran’s death, including as secondary to Agent Orange exposure, is not well grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1996). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran died on February[redacted] 1993 at the age of sixty. On the veteran’s Certificate of Death, the immediate cause of death was noted to be gastrointestinal hemorrhage due to undifferentiated carcinoma in the liver. An autopsy was performed with the following anatomic diagnoses: 1) Adenocarcinoma of the gastroesophageal junction with metastases to gastric, portahepatic and para-aortic lymph nodes, liver, and lungs; 2) right pleural and peritoneal effusions; 3) malignant lymphoma, small lymphocytic type, with involvement of liver, bone marrow, and kidney; 4) status post coronary artery bypass graft; 5) coronary arteriosclerosis; 6) left ventricular cardiac hypertrophy; and 7) status post right nephrectomy for renal cell carcinoma. Of record at the time of the veteran’s death were statements submitted by the veteran, service personnel records, service medical records, and reports of post service private and VA medical treatment and examination. The veteran claimed in June 1992, in conjunction with a claim for service connection for non-Hodgkin’s lymphoma due to Agent Orange exposure, that he was in Vietnam where he spent countless days clearing some 10 square miles of jungle as a security policeman. Review of the service personnel records does not reveal service in Vietnam or service in another location that involved visitation to Vietnam. The veteran was noted to have been stationed in Thailand. The veteran submitted a statement in September 1992 in response to an RO request for clarification of his Vietnam service. The veteran noted that he had not been stationed in Vietnam. Rather, he had been stationed at NKP Thailand, where he used Agent Orange (an herbicide agent) to clear the jungle around his base on several occasions. He also noted that he made several trips to Northern Laos where he asserted Agent Orange was sprayed. The service medical records and documentation associated therewith contain no evidence of the veteran’s ever having been exposed to an herbicide agent. The RO’s efforts to obtain verification of the claimed exposure of the veteran to an herbicide agent in service have been unsuccessful. The RO attempted to verify any exposure to herbicide agents, including Agent Orange, that the veteran may have had. Significantly, in a letter from the Director, United States Army & Joint Services Environmental Support Group (ESG), dated in February 1993, the RO was informed that a review of available unit histories did not reveal the veteran’s involvement with the use of Agent Orange in Thailand during 1968/1969. The ESG research indicated that herbicides were not sprayed near U.S. personnel in Thailand. Further, herbicides were only sprayed in Thailand for test purposes in the early and mid 1960’s in remote jungle areas. There was also no record of the veteran’s involvement in Operation Ranch Hand, the aerial spraying of the herbicide by U.S. personnel. Review of the veteran’s service medical records is pertinently negative for report of complaint, treatment, or finding relevant to the cancer that eventually caused the veteran’s death. The veteran was examined by VA for compensation purposes in September 1973, where again no pertinent complaints or findings were noted. On that occasion, objective examination revealed the veteran’s liver was not enlarged, the spleen was not palpable, there were no abnormal masses in the abdomen. The veteran submitted the statement of Dr. T. Bradley, the veteran’s oncologist, who noted that the veteran had been diagnosed with non-Hodgkin’s lymphoma, well-differentiated lymphocytic, stage IV in November 1991. Additionally, the veteran was diagnosed with renal cell carcinoma in 1987 and had been diagnosed in February 1993 with an undifferentiated carcinoma with metastatic spread to the liver. VA treatment records and pathology reports from November 1991 note treatment for lymphoma. Pathology report dated in November 1991 noted that the type was difficult to determine, but that it was believed to represent a low grade lymphoma, either small lymphocytic or intermediate lymphocytic (mantle zone type). Analysis The threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, a claim which is plausible and meritorious on its own or capable of substantiation. If she has not, her appeal must fail. 38 U.S.C.A. § 5107(a); see Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board finds that the appellant’s claim for service connection for the cause of the veteran’s death is not well grounded, and there is no further duty to assist her in the development of her claim. In order for service connection for the cause of the veteran’s death to be granted, 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.A. §§ 1110, 1310, 5107 (West 1991 and Supp. 1996); 38 C.F.R. §§ 3.310(a), 3.312 (1996). In order for a claim to be well grounded, there must be (1) competent evidence of a current disability (a medical diagnosis); (2) evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) evidence of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498, 506 (1995). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded; if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Grottveit, 5 Vet.App. at 93. For the purposes of presumptive service connection, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(6)(i) (1996). 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) (1996) are met even though there is no record of such diseases during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; 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); Soft- tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) (The term "soft-tissue sarcoma" includes the following: Adult fibrosarcoma; Dermatofibrosarcoma protuberans; Malignant fibrous histiocytoma; Liposarcoma; Leiomyosarcoma; Epithelioid leiomyosarcoma (malignant leiomyoblastoma); Rhabdomyosarcoma; Ectomesenchymoma; Angiosarcoma (hemangiosarcoma and lymphangiosarcoma); Proliferating (systemic) angioendotheliomatosis; Malignant glomus tumor; Malignant hemangiopericytoma; Synovial sarcoma (malignant synovioma); Malignant giant cell tumor of tendon sheath; Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; Malignant mesenchymoma; Malignant granular cell tumor; Alveolar soft part sarcoma; Epithelioid sarcoma; Clear cell sarcoma of tendons and aponeuroses; Extraskeletal Ewing's sarcoma; Congenital and infantile fibrosarcoma; Malignant ganglioneuroma; (For purposes of this section, the term acute and subacute peripheral neuropathy means transient 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 U.S.C.A. § 1116 (West 1991 & Supp. 1996); 38 C.F.R. § 3.309(e) (1996). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Service in Vietnam during the Vietnam Era together with the development of non-Hodgkin's lymphoma manifested subsequent to such service is sufficient to establish service connection for that disease. “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), 3.313 (1996). When the requirements of Caluza are considered in relation to § 3.309, it must first be shown that there is medical evidence of a current, pertinent disability included under § 3.309(e) (1996). The second requirement for a well- grounded claim under Caluza is evidence of a disease or injury in service. In relation to a claim under § 3.309(e), the only pertinent “disease or injury” would be service in the Republic of Vietnam or exposure to an herbicide agent. Therefore, there must be evidence of service in the Republic of Vietnam or exposure to an herbicide agent in service for the claim to be well grounded. It is clear that the evidence of herbicide agent exposure must be competent evidence. See Layno v. Brown, 6 Vet.App. 465, 469 (1994); Grottveit, 5 Vet.App. at 93; Espiritu v. Derwinski, 2 Vet.App. at 494. Where there is medical evidence of a current disorder under § 3.309(e) (1996), and there is competent evidence of herbicide agent exposure, then the third requirement under Caluza, the nexus, is, in essence, presumed. See 38 C.F.R. § 3.309(e) (1996). The appellant has contended that the veteran’s death due to carcinoma of the gastroesophageal junction was related to claimed exposure to an herbicide agent in service. The state of the record is such that there is no competent evidence of in-service herbicide agent exposure nor service in Vietnam, and, thus, no competent evidence that any pertinent disease or injury was incurred in service, to support a finding that any claim based on 38 C.F.R. § 3.309 is well grounded. When requirement (2) for a well-grounded claim is considered in relation to § 3.309(e), the pertinent “disease or injury” would be presumptive diseases related to exposure to a herbicide agent, listed above. The disorders granted presumptive service connection under § 3.309(e) are carefully specified. No medical evidence currently contained in the record demonstrates that the veteran’s death was caused by any of these cancers. The veteran’s certificate of death lists gastrointestinal hemorrhage due to undifferentiated carcinoma in the liver as the immediate cause of death. The autopsy lists the following cancers as present in the veteran’s body: Adenocarcinoma of the gastroesophageal junction with metastases to gastric, portahepatic, and para-aortic lymph nodes, liver and lungs; malignant lymphoma, small lymphocytic type, with involvement of liver, bone marrow, and kidney; renal cell carcinoma. None of these disorders are listed as presumptive disorders under 38 C.F.R. § 3.309(e) (1996). The veteran treating physician, Dr. T. Bradley, submitted a letter to VA, dated in February 1993. The doctor noted the veteran was diagnosed with Non-Hodgkin’s lymphoma, well differentiated, lymphocytic, stage IV, in November 1991. The veteran was also diagnosed with renal cell carcinoma in 1987, and was also diagnosed recently with undifferentiated carcinoma with metastatic spread to the liver. While the veteran had been diagnosed with non-Hodgkin’s lymphoma, that disease has not been implicated in the veteran’s death on the autopsy or certificate of death. Non- Hodgkin’s lymphoma is not specified as a presumptive disease under § 3.309(e), however, as noted above it is presumed service-connected for veteran’s who had service in Vietnam. Even were the non-Hodgkin’s lymphoma implicated in the veteran’s death, absent service in the Republic of Vietnam that disease also cannot be service-connected under 38 C.F.R. § 3.313 (1996). In short, the appellant has contended that the veteran’s death, which was due to adenocarcinoma of the gastroesophageal junction that had metastasized to the liver, was related to chemical or Agent Orange exposure in service. This type of cancer is not granted presumptive service connection under § 3.309(e). In addition, there is no evidence of service in the Republic of Vietnam or confirmed exposure to an herbicide agent. With neither competent evidence that the veteran’s death was caused by a disease which is entitled to presumptive service connection under any applicable law or VA regulation nor a finding of exposure or presumed exposure to an herbicide agent; the appellant’s claim cannot be found well grounded. Notwithstanding the lack of a presumptive disease, service connection may still be granted if the preponderance of the evidence establishes that the veteran’s death was related to his military service, or if the evidence is in equipoise as to that question. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). However, the appellant has not submitted any competent medical evidence to show, nor does the competent medical evidence of record suggest, that the veteran died of any disability related to his periods of service. The Board notes that the service medical records contain no evidence or findings of the carcinomas noted in the autopsy and reported to account for the veteran’s death. Therefore, under a theory of direct, rather than presumptive, service connection, the claim is similarly not well grounded. Accordingly, the appellant’s claim of entitlement to service connection for the cause of the veteran’s death is not well grounded, and her claim must be denied. Additional matters Although the Board considered and denied the appellant’s claim on a ground different from that of the RO, which denied the claim on the merits, the appellant has not been prejudiced by the decision. This is because in assuming that the claim was well grounded, the RO accorded the appellant greater consideration than her claim in fact warranted under the circumstances. See Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). If the appellant or her representative can secure evidence from medically trained personnel that implicates the veteran’s death with a disability linked to his military service, such evidence may be used in filing another claim. In reaching this decision, the Board notes that the United States Court of Veterans Appeals (Court) has held that there was some duty to assist the appellant in the completion of her application for benefits under 38 U.S.C.A. § 5103(a) (West 1991), depending on the particular facts found in each case. Beausoleil v. Brown, 8 Vet.App. 459 (1996); Robinette v. Brown, 8 Vet.App. 69 (1995). The facts and circumstances of this case are such that no further action is warranted. ORDER The appellant not having submitted a well grounded claim of entitlement to service connection for the cause of the veteran’s death, including as secondary to Agent Orange exposure, the claim is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 12 -