BVA9505549 DOCKET NO. 93-07 807 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania 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 Carol J. Weaver ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran had two periods of active service: from September 1956 to June 1958, and from June 1959 to September 1977. This appeal arises from a August 1989 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO). In that decision, the RO denied entitlement to service connection for the cause of the veteran's death. The appellant requested reopening of the claim in August 1990, and the RO denied the reopened claim in October 1990. CONTENTIONS OF APPELLANT ON APPEAL The appellant, the veteran's widow, contends that service connection is warranted for the veteran's death from metastatic bronchogenic carcinoma. She notes that the veteran had a service-connected chronic respiratory disability. She also asserts that his physical deterioration was due to his service in Vietnam and exposure to Agent Orange. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 record supports entitlement to service connection for lung cancer, the cause of the veteran's death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the originating agency. 2. The veteran served in the Republic of Vietnam in 1967, 1968, 1969 and 1970. 3. The veteran was diagnosed with lung cancer in 1985. 4. The veteran died of cardiorespiratory arrest due to metastatic lung cancer in 1989. CONCLUSION OF LAW The lung cancer that caused the veteran's death is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307(a)(6); 3.309(e), 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed, so that the statutory obligation of the Department of Veterans Affairs (VA) to assist the appellant in the development of her claim has been satisfied. 38 U.S.C.A. § 5107 (West 1991). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 C.F.R. § 3.312 (1994). The veteran died in June 1989. The death certificate listed the cause of death as cardiorespiratory arrest due to metastatic bronchogenic carcinoma. Records of the veteran's terminal hospitalization show the cause of his death as cardiorespiratory arrest secondary to metastatic cancer of the lung. The appellant contends that the veteran's condition may have been related to exposure to Agent Orange, an herbicide containing dioxin. A veteran who has had active service in the Republic of Vietnam during the Vietnam era, and who has a disease listed at 38 C.F.R. § 3.309(e) (1994), 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. 38 C.F.R. §§ 3.307(a)(6). The list of diseases at 38 C.F.R. § 3.309(e) (1994) considered to be associated with herbicide exposure for purposes of presumptive service connection includes respiratory cancers, such as cancers of the lung, bronchus, larynx or trachea. The veteran had cancer of the lung, first diagnosed as a Pancoast's tumor of the left lung at Walter Reed Army Medical Center in 1985. The veteran's service records document that he served in Vietnam from March 1967 to March 1968 and from February 1969 to February 1970. The veteran is therefore presumed to have been exposed to an herbicide such as Agent Orange. Respiratory cancers that become manifest to a degree of 10 percent or more disabling within thirty years after the last date on which the veteran was exposed to an herbicide are presumed to have been incurred in service, even if there is no record of such disease during service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1994). Records from Walter Reed Army Medical Center, and the VA Medical Center in Altoona, Pennsylvania, document that the veteran was diagnosed with lung cancer in 1985, and died of metastasized lung cancer in 1989. As the veteran's respiratory cancer manifested to an extremely disabling and ultimately fatal degree less than thirty years after his latest possible exposure in service to herbicides in 1970, the cancer that caused his death is presumed to be service connected. ORDER Entitlement to service connection for the cause of the veteran's death is granted. JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), 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. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (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.