Citation Nr: 0002873 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-06 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death, to include service connection due to herbicide exposure in the Republic of Vietnam. 2. Entitlement to basic eligibility for dependents' educational assistance under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD V. Marletta, Associate Counsel INTRODUCTION The veteran served on active duty from May 1958 to May 1985, including service in the Republic of Vietnam (RVN). As a result of such service in the RVN, the veteran received the following decorations: Republic of Vietnam Campaign Medal; Vietnam Service Medal; Vietnamese Cross of Gallantry; Purple Heart; and Army Achievement Medal. The appellant is the widow of the veteran. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in April 1997 by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the appellant's claim of entitlement to service connection for the cause of the veteran's death has been developed. 2. The veteran died on August [redacted], 1989. The immediate cause of death as indicated on the State of Tennessee death certificate was respiratory failure due to (or as a consequence of) lung cancer. 3. The specific type of carcinoma that contributed to the veteran's death was squamous cell carcinoma, which originated in the veteran's lungs. 4. The squamous cell carcinoma that originated in the veteran's lungs was presumptively the product of in-service exposure to Agent Orange. 5. The veteran was honorably discharged from active duty, he died as a result of a service-connected disability, and his death was the result of active military service on or after April 21, 1898. CONCLUSIONS OF LAW 1. A disability presumptively incurred in-service contributed substantially or materially to the cause of the veteran's death. 38 U.S.C.A. §§ 1116, 1310 (West 1991); 38 C.F.R. §§ 3.312, 3.307, 3.309(e) (1999). 2. Entitlement to basic eligibility for dependents' educational assistance benefits under Chapter 35, Title 38, United States Code, is established. 38 U.S.C.A. § 3500 et. seq. (West 1991); 38 C.F.R. § 3.807 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for the cause of the veteran's death based on in-service exposure to herbicides while on active duty in the Republic of Vietnam Initially, the Board finds that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, she has presented a claim that is plausible. She has not alleged that any records of probative value that may be obtained, and which have not been sought by VA or already associated with the veteran's claims folder, are available. The Board accordingly finds that all relevant facts have been properly developed, and that the duty to assist her, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. Service connection may be established for the cause of a veteran's death where it is shown that a service-connected disability, or a disability for which service connection should have been established at the time of the veteran's death, was either a principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (1999). VA regulations provide that, if a veteran who served in the RVN was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: 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); and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (1999). In addition, where a veteran served on active duty in the RVN during the period beginning on January 9, 1962, and ending on May 7, 1975 and sustains (or has died from) a disease listed at 38 C.F.R. § 3.309(e), he or she 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)(iii) (1999). In the present case, while the record is not clear regarding the veteran's exact dates of service in the RVN, his service medical records indicate that he was treated for head, elbow and calf wounds sustained on May 13, 1966 during a search and destroy mission at Michelin Plantation, RVN. There being no affirmative evidence of non-exposure in this case, the presumption of the veteran's exposure to Agent Orange while serving in the RVN remains intact. The appellant claims that the veteran's death from respiratory failure due to lung cancer was caused by his exposure to Agent Orange while serving in the RVN. To qualify for presumptive service connection, respiratory cancers (including those of the lung) must become manifest to a degree of ten percent or more within 30 years after the last date on which the veteran was exposed (or presumptively exposed) to herbicides during active service in the RVN. 38 C.F.R. § 3.307(a)(6)(ii) (1999). The veteran's medical records indicate that he was first diagnosed with squamous cell carcinoma of the left lung in September 1988. Using the May 13, 1966 RVN injury date as a starting point, the Board finds that the diagnosis of the veteran's squamous cell carcinoma occurred well within the 30 year time limit imposed by the regulations. The major issue in this case is whether the veteran's lung cancer originated in that organ or if it metastasized from another primary site which does not qualify for presumptive service connection under 38 C.F.R. § 3.309(e). The United States Court of Veterans Appeals has held that service connection cannot be presumed under 38 C.F.R. §§ 3.307(d) and 3.309(e) where the carcinoma in an otherwise qualifying respiratory organ is metastatic and not primary. Darby v. Brown, 10 Vet. App. 243 (1997). In denying the appellant's claim, the RO found as follows in its rating decision: "The overriding factor here is that the medical evidence shows the cause of death was lung cancer which originated in the colon and traveled to the lung." However, the medical evidence indicates that the veteran actually incurred two types of cancer in his lungs. The VA Medical Center (VAMC) discharge summary covering the periods between July 31, 1989 and August 5, 1989 (the veteran's date of death) lists, inter alia, the following diagnoses: "(1) [s]quamous cell carcinoma of the left lung, diagnosed in 1988; and (2) adenocarcinoma of the colon, status, post, surgical resection, with metastases to the lungs." Thus the RO's assumption that the veteran's cause of death was due to the metastatic adenocarcinoma originating in his colon must come under scrutiny. The Board finds that the information contained in the death certificate is highly probative of the veteran's actual cause of death. Next to the "lung cancer" entry as an underlying cause of the veteran's death, the death certificate indicates the approximate interval between its onset and death as "11 months from diagnosis." The summary section of the aforementioned VAMC discharge summary states in relevant part as follows: "...[the veteran] was found to have metastatic adeno[carcinoma] of the lung diagnosed on 12/7/88 by [fine- needle aspiration]. This was preceded by bronchoscopy in 9/88 which revealed squamous cell [carcinoma] of the left lung." Subtracting 11 months from the veteran's date of death in August 1989 yields a date of September 1988, the time at which the veteran was diagnosed with primary site squamous cell carcinoma of the left lung. Further, the Board notes that the death certificate notation made by Dr. Jordan (a VAMC physician) indicating the underlying cause of death as "lung cancer" and not as "metastatic lung cancer" also supports this finding. Therefore, the Board finds that the veteran's cause of death was from primary cite squamous cell carcinoma of the left lung, which was presumptively caused by the veteran's exposure to herbicides while serving on active duty in the RVN. II. Entitlement to basic eligibility for dependents' educational assistance under Chapter 35, Title 38, United States Code. Under Chapter 35 of Title 38 of the United States Code, the child, spouse or surviving spouse of a veteran will have basic eligibility for dependents' educational assistance if the veteran: (1) was discharged from service under conditions other than dishonorable, or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability. The service-connected disability or death must have been the result of active military, naval, or air service on or after April 21, 1898. 38 C.F.R. § 3.807 (1999); see also 38 U.S.C.A. § 3501 (West 1991). The record indicates that the veteran was honorably discharged from service on May 31, 1983 and, as found in the previous section of this decision, he died as a result of a service-connected disability, which was incurred during active military service after April 21, 1898. The Board therefore finds that basic eligibility for dependents' educational assistance under Chapter 35, Title 38, United States Code, is established. ORDER Service connection for the cause of the veteran's death, due to exposure to herbicides in the Republic of Vietnam, is granted. Entitlement to basic eligibility for dependents' educational assistance under Chapter 35, Title 38, United States Code, is established. M. W. GREENSTREET Member, Board of Veterans' Appeals