Citation Nr: 0000745 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 95-00 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and veteran's brother ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran had active service from August 1968 to January 1972. The veteran died on June [redacted], 1994. The appellant is his widow. This appeal arises from the July 1994 rating decision of the Atlanta, Georgia regional office (RO) that denied service connection for the cause of the veteran's death. The appellant was mailed notice of the decision in September 1994. A Notice of Disagreement was filed in September 1994 and a Statement of the Case was issued in November 1994. A substantive appeal was filed in December 1994 with a request for a hearing at the RO before a Member of the Board. In November 1994, the appellant requested a hearing at the RO before a local hearing officer. In April 1995, the above- mentioned RO hearing was held. On October 22, 1998, a hearing was held at the RO before Iris S. Sherman, who is a member of the Board rendering the final determination in this claim and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102 (West Supp. 1999). This case was remanded in January 1998 to afford the veteran the above-mentioned Board hearing and was thereafter returned to the Board. The case was remanded again in January 1999 for further development. The case was thereafter returned to the Board. During the course of this appeal, the appellant has relocated to New Jersey, and her claim is now being handled by the Newark, New Jersey RO. FINDINGS OF FACT 1. The veteran died on June [redacted], 1994; according to the death certificate, the immediate cause of death was septic shock, due to or as a consequence of metastatic carcinoid tumor. Other significant conditions contributing to death included cutanea porphyria tarda. 2. At the time of the veteran's death, service connection was not in effect for any disability. 3. Evidence submitted by the appellant makes the claim of service connection for the cause of death plausible. CONCLUSION OF LAW The claim of entitlement to service connection for the cause of the veteran's death is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that porphyria cutanea tarda, which contributed to the veteran's death, was a result of the veteran's exposure to herbicide agents in Vietnam. Under the applicable criteria, service connection may be granted for a disability incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The applicable criteria pertaining to service connection for the cause of death include the following: (a) General. 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. (b) Principal cause of death. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. (c) Contributory cause of death. (1) Contributory cause of death is inherently one not related to the principal cause. In determining whether the 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. (2) Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service- connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. (3) Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. (4) There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be addressed in this case is whether the appellant has presented evidence of a well- grounded claim. If she has not presented a well-grounded claim, her appeal must fail, because the Board has no jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist her further in the development of her claim, because such additional development would be futile. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Because a well-grounded claim is neither defined by the statute nor the legislative history, it must be given a commonsense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Id. at 81. However, to be well grounded, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-263 (1992). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant would not meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. A claim for service connection requires three elements to be well grounded. There must be competent evidence of a current disability (a medical diagnosis); incurrence or aggravation of a disease or injury in service (lay or medical evidence); and a nexus between the in-service injury or disease and the current disability (medical evidence). The third element may be established by the use of statutory presumptions. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Regarding claims for service connection for the cause of death of a veteran, the first requirement, evidence of a current disability, will always have been met (the current disability being the condition that caused the veteran to die), but the last two requirements must be supported by evidence of record. Ramey v. Brown, 9 Vet. App. 40 (1996) The appellant has argued that the veteran's exposure to Agent Orange during service caused the porphyria cutanea tarda that contributed to the veteran's death. In that respect, a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (1999) 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. No condition other than one listed in 38 C.F.R. § 3.309(a) (1999) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 1991 & Supp. 1999); 38 C.F.R. § 3.307(a) (1999). 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. 38 C.F.R. § 3.307(a)(6)(iii)(1999). [Emphasis added]. The last date on which 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 Vietnam era. "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)(1999). 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)(iii)(1999) 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) (1999) are also satisfied: Chloracne or other acneform disease consistent with chloracne; prostate cancer; acute and subacute peripheral neuropathy; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; porphyria cutanea tarda; 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). "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 with two years of the date of onset." Id. The diseases listed at 38 C.F.R. § 3.309(e) (1999) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit, however, has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well- grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The death certificate indicates that the veteran died on June [redacted], 1994. The immediate cause of death was septic shock, due to or as a consequence of metastatic carcinoid tumor. Other significant conditions contributing to death included cutanea porphyria tarda. The record indicates that the veteran has had treatment for porphyria cutanea tarda since 1978. Gary W. Hunt, M.D., has noted that the veteran's porphyria cutanea tarda was most likely a result of his exposure to toxic agents in Vietnam. Additionally, Herbert M. Fichman, D.O., has noted that the veteran's porphyria may be a result of being exposed to Agent Orange while in Vietnam. In this case, the veteran's private physicians have associated the veteran's porphyria cutanea tarda with herbicide exposure in service. Therefore, under the case of Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), a claim for direct causation may be considered. The appellant has satisfied the threshold requirement of presenting a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, the appellant has set forth a claim which is plausible. As the veteran alleged exposure to agent orange in service, a contributory cause of death was porphyria cutanea tarda, and physicians have linked the veteran's porphyria cutanea tarda to exposure to herbicide agents in Vietnam, the Board finds that the appellant has presented a claim for service connection for the cause of death that is well grounded. ORDER To the limited extent that the appellant's claim of entitlement to service connection for the cause of the veteran's death is well grounded, the appeal is granted. REMAND As the appellant's claim for service connection for the cause of the veteran's death has been found to be well grounded, the VA has a duty to assist the appellant in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The duty to assist is neither optional nor discretionary. Littke v. Derwinski, 1 Vet. App. 90 (1990). Initially, the RO should attempt to ascertain whether the veteran was exposed to herbicide agents in Vietnam. The veteran's service personnel records show that he served in Vietnam from August 4, 1969 to January 21, 1971. His principal duty included general clerk and team chief with the 101st Admin Co, 101st Abn Div (Ambl). In a November 1993 statement regarding possible exposure to toxic chemicals, the veteran noted that he was stationed in BeinHoa and PhuBai. He reported that he had not been in a directly sprayed area but was in a recently sprayed area. The RO should determine whether any of the areas in which the veteran was located were areas where herbicide agents were sprayed. All available information regarding the veteran's location in Vietnam, including the veteran's service records, should be provided to the U.S. Armed Services Center for Research of Unit Records for verification of exposure to herbicide agents. In additionally, the RO should contact the Department of the Army regarding the veteran's exposure to herbicide agents. A map regarding the areas where herbicide agents were sprayed should be associated with the file. Additionally, porphyria cutanea tarda is noted on the certificate of death as a contributory cause of the veteran's death. It should be determined the extent that the veteran's porphyria cutanea tarda contributed to the veteran's death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). In this regard, treatment records from the year prior to the veteran's death should be obtained. There is an indication in the record that the veteran has had treatment for porphyria cutanea tarda by Gary W. Hunt, M.D., Herbert M. Fichman, D.O., Dr. Habib of Underwood Memorial Hospital, Dr. Stefy in Mays Landing, New Jersey, the Murfeesboro, Tennessee VA Medical Center, and the Philadelphia, Pennsylvania VA Medical Center. Treatment records from these providers and facilities should be requested. VA has a duty to assist the veteran in the development of facts pertaining to this claim. The Court has held that the duty to assist the claimant in obtaining and developing available facts and evidence to support his claim includes obtaining all relevant medical records. Littke v. Derwinski, 1 Vet. App. 90 (1990). Additionally, Dr. Hunt and Dr. Fichman should be requested to provide their rationale for their statements that the veteran's porphyria cutanea tarda was associated with Agent Orange exposure. Finally, there is an indication in the record that the veteran was in receipt of social security income. The VA must obtain a copy of the Social Security Administration (SSA) decision granting benefits to the appellant and the medical records upon which it was based. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is being remanded for the following actions: 1. The RO should review the file and determine the veteran's exposure to herbicide agents in Vietnam. The veteran's location while he was stationed in Vietnam should be ascertained and compared with a map of the areas of Vietnam sprayed with herbicide agents. The map should be associated with the file. This information should be requested from the U.S. Armed Services Center for Research of Unit Records, 7798 Cissna Road, Springfield, Virginia, 22150, for verification of the appellant's location in areas sprayed with herbicide agents. If this facility suggests additional avenues of research, this should be accomplished, including contacting the Department of the Army. 2. The RO should obtain the names and addresses of all medical care providers who treated the veteran for porphyria cutanea tarda in the year prior to his death. Thereafter, the RO should obtain legible copies of all records that have not already been obtained, including those from Gary W. Hunt, M.D., Herbert M. Fichman, D.O., a Dr. Habib of Underwood Memorial Hospital, a Dr. Stefy in Mays Landing, New Jersey, the Murfeesboro, Tennessee VAMC, and the Philadelphia, Pennsylvania VAMC. Dr. Hunt and Dr. Fichman should be requested to provide supporting medical records and rationale, including authority and investigation, for their statements connecting the veteran's porphyria cutanea tarda with Agent Orange exposure. 3. The administrative decision and any underlying medical records pertaining to the veteran's award of Social Security benefits should be obtained from the Social Security Administration. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the development requested herein above was conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. After the requested development has been completed, the RO should again review the appellant's claim of service connection for the cause of the veteran's death. If the benefits sought on appeal remain denied, the appellant and her representative, if applicable, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Iris S. Sherman Member, Board of Veterans' Appeals