Citation Nr: 0112099 Decision Date: 04/27/01 Archive Date: 05/01/01 DOCKET NO. 00-13 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the veteran's cause of death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The veteran served on active duty from May 1952 to September 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2000 decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's claim for service connection for the veteran's cause of death. FINDINGS OF FACT 1. The veteran's service personnel records reflect that he was posted in Thailand from July 1967 to July 1968, and from October 1968 to October 1969, during which he flew aboard military aircraft and participated in aerial missions in airspace over the Republic of Vietnam. 2. The veteran's service personnel and medical records do not reflect that he had service in the Republic of Vietnam or that his posting in Thailand involved duty or visitation to the Republic of Vietnam. 3. The veteran was diagnosed with multiple myeloma in April 1995 and died of multiple myeloma and hypercalcemia on July 6, 1997. 4. Hypercalcemia did not have its onset during the veteran's military service, nor is it related to any incident of such service. 5. Multiple myeloma did not have its onset during the veteran's military service, nor is it related to any incident of such service, including exposure to chemical herbicides. CONCLUSION OF LAW The multiple myeloma and hypercalcemia which caused or significantly contributed to the veteran's death were not incurred, nor are they presumed to have been incurred, during active service. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312, 3.313 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that during the pendency of the appellant's appeal, but after the case was forwarded to the Board, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. It essentially eliminates the requirement that a claimant submit evidence of a well-grounded claim, and provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. Specifically, it requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board has reviewed the claims file and notes that all records pertinent to the claimant's appeal for service connection for the veteran's cause of death have been obtained. These include the veteran's service medical records, military service records and relevant private medical records. All pertinent medical records have been associated with the file and there is no outstanding evidence which should be obtained. Furthermore, as will be discussed, the factual pattern of the case is so unambiguous with regard to the issue on appeal that there is no reasonable possibility that rendering additional assistance to the claimant for evidentiary development (including referral of the case for a nexus opinion) would aid in substantiating her claim. Consequently, there is no further action to be undertaken to comply with the provisions of the VCAA. The appellant filed her claim for service connection for the veteran's cause of death in March 1999. Service connection for the cause of a veteran's death may be granted when a disability incurred in or aggravated by service either caused or contributed substantially or materially to the veteran's 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 of death, 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. Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). The veteran's service medical records do not show a diagnosis of multiple myeloma during active duty. Post-service medical records also do not show such a diagnosis within the first year following his separation from active duty in September 1976. Pertinent private treatment records show that that the veteran was first diagnosed with multiple myeloma in April 1995. The records show a progressive decline in his health and physical condition due to this disease, culminating with his death on July 5, 1997. His death certificate shows that he died as a result of multiple myeloma with hypercalcemia significantly contributing to death but not resulting in the underlying cause of death. At the time of his death, he was not service-connected for any disability. None of the medical records associated with the evidence contain an objective medical opinion establishing a relationship between the veteran's multiple myeloma and hypercalcemia and his period of military service, such that a determination of service connection for the veteran's cause of death by multiple myeloma with hypercalcemia may be found on a direct basis. The appellant contends, however, that the evidence supports a finding of service connection for multiple myeloma on the basis of presumptive exposure to chemical herbicides during military service in Vietnam. She cites as her authority the regulatory provisions of 38 C.F.R. §§ 3.307 and 3.309. 38 C.F.R. § 3.309(e) recognizes multiple myeloma as a chronic disease associated with exposure to certain herbicide agents listed in § 3.309 and will be considered to have been incurred in service under the circumstances outlined in this section, even though there is no evidence of such disease during the period of service, if the circumstances of the veteran's military service conform with the provisions which govern regulatory presumption and the multiple myeloma became manifest to a degree of 10 percent or more at any time after his period of service. 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 period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. (See 38 C.F.R. § 3.307(a)(6)) A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 and has a disease listed in 38 C.F.R. § 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "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. (See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a)) The Board concedes that the late veteran, having been diagnosed with multiple myeloma, has met the requirement of having been diagnosed with a disease recognized in 38 C.F.R. § 3.309(e) and such disease, due to its terminal nature, was disabling to a compensable degree. The outcome of the present appeal therefore turns on the facts and details regarding the decedent's posting location and duties during his period of military service coincident with the period to which the regulatory presumptions apply (i.e., the period beginning on January 9, 1962, and ending on May 7, 1975). If it is demonstrated that the veteran actually served in the Republic of Vietnam, in the waters offshore of the Republic of Vietnam, or otherwise had service which involved duty or visitation in the Republic of Vietnam, exposure to the chemical defoliants recognized by the regulations will be conceded and service connection for multiple myeloma for purposes of establishing his widow's entitlement to dependency and indemnity compensation will be granted. The veteran's service records show that he served as a career enlisted man in the United States Air Force. He had duty postings in the United States, Europe, Africa and Indochina. According to the records, he was stationed in Thailand from July 1967 to July 1968, and from October 1968 to October 1969. During this period, he served as a crewman aboard an EC-121 electronic surveillance and intelligence-gathering aircraft whose missions were conducted over Vietnamese airspace in support of military combat operations. His service records show his involvement in the Vietnam Air Offensive Campaign Phase III in October 1968. For his participation in these operations, he was awarded the Vietnam Service Medal, the Republic of Vietnam Campaign Medal and the Air Medal. However, there are no indications in the veteran's military service records or his service medical records that he ever had occasion to be on the ground within the borders of the Republic of Vietnam or in the waters offshore of Vietnam while in the course of carrying out his duties or receiving medical treatment. In this regard, it was specifically noted on one of his DD 214 Forms that he served in Indochina but not in Vietnam. The appellant contends that the veteran was exposed to chemical defoliants while flying in the skies above Vietnam in the course of his duties as a crewman aboard an EC-121 electronic surveillance aircraft. However, in a controlling opinion of the VA Office of General Counsel (VAOGCPREC 7-93 (August 12, 1993)), it was determined that service in the airspace above the Republic of Vietnam does not constitute actual service in the Republic of Vietnam or its offshore waters for purposes of meeting the regulatory requirements of 38 C.F.R. § 3.313 to be entitled to the presumptions of exposure to chemical herbicides in 38 C.F.R. §§ 3.307, 3.309. The opinion addressed the question of whether "service in Vietnam," as referred to in 38 C.F.R. § 3.313, included service of a Vietnam Era veteran who flew military missions in Vietnamese airspace, but who never actually landed in Vietnam. The VA Office of General Counsel held that the term "service in Vietnam" does not include service of a Vietnam Era veteran whose only contact with Vietnam was flying high- altitude missions in Vietnamese airspace. The appellant attempts to make a distinction between the facts of the case which generated the VA Office of General Counsel's opinion and her own case in order to support the argument that VAOGCPREC 7-93 (August 12, 1993) is not for application to her case. The particular case which generated the VA Office of General Counsel's opinion involved a B-52 bomber pilot who flew at high altitude over Vietnam and developed non-Hodgkin's lymphoma. The appellant contends that the opinion is inapplicable to her case as her husband, the late veteran, developed a different disease and his flight mission profiles involved flying at both high and low altitudes within Vietnamese airspace, during which he was exposed to chemical herbicides at low-altitude operations which eventually led to his developing multiple myeloma. However, her contentions are without merit as there is no indication that the VA Office of General Counsel intended to make VAOGCPREC 7-93 (August 12, 1993) sui generis or otherwise for application only to the specific fact pattern of the case it addressed. Furthermore, there is no applicable caselaw or other provision in 38 C.F.R. § 3.313 which recognizes service in any capacity in the airspace over the Republic of Vietnam, whether at low or high altitude, as constituting "service in Vietnam" for purposes of applying the presumptions of exposure to chemical herbicides provided by 38 C.F.R. § 3.307. To the extent that the appellant seeks to draw a casual relationship between the late veteran's diagnoses of multiple myeloma and hypercalcemia and his period of military service, the Board notes that there is no evidence indicating that she possesses medical training or certification that would qualify her to make an opinion regarding medical etiology which would be of any probative value in support of her claim. Her statements in this regard are therefore not entitled to any consideration. Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In view of the foregoing, the Board finds that the appellant's claim of entitlement to service connection for the veteran's cause of death must be denied. Because the evidence in this case is not approximately balanced, the benefit-of-the-doubt doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the veteran's cause of death is denied. John L. Prichard Member, Board of Veterans' Appeals