Citation Nr: 0001531 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 96-23 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for the cause of the veteran's death, claimed as due to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Dr. W.L. ATTORNEY FOR THE BOARD John Z. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from October 1967 to October 1969. He died in September 1989. The appellant is his surviving spouse. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The veteran served in Vietnam. The appellant testified that the veteran was exposed to Agent Orange while in Vietnam. 2. There is medical evidence linking some of the conditions that contributed to the veteran's death with exposure to Agent Orange in service. CONCLUSION OF LAW The claim of entitlement to service connection for the cause of the veteran's death, claimed as due to Agent Orange exposure, is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed.Cir. 1997), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 C.F.R. § 5107(a), the VA has a duty to assist only those claimants who have established well-grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) (formerly known as the United States Court of Veterans Appeal) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well-grounded. Morton v. West, 12 Vet.App. 477 (1999). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 C.F.R. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well-grounded; that is, that the claim is plausible. In order for a claim to be well-grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet.App. 498 (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. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). In the case of an Agent Orange related claim, when a veteran served in the Republic of Vietnam during the Vietnam era, competent medical evidence of the existence of a current presumptive disease with an open-ended presumptive period of time for service connection is sufficient to render the claim for service connection for the presumptive disease well- grounded. Brock v. Brown, 10 Vet.App. 155, 162 (1997). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and who 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 (Agent Orange), 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). If a veteran was exposed to an herbicide agent during such active military, naval, or air service, the following disease shall be service-connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: chloracne or other acneiform disease consistent with chloracne; Hodgkin's disease; non- Hodgkin's lymphoma; porphyria cutanea tarda, multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx or trachea), and soft tissue sarcoma. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) 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). If the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also not satisfied, then the appellant's claim shall fail. 38 C.F.R. § 3.307(d). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 61 Fed.Reg. 414421 (1996). Notwithstanding the foregoing, the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Court has held that where the issue involves medical causation, competent medical evidence that shows that the claim is plausible or possible is required to set forth a well-grounded claim. Caluza v. Brown, 7 Vet. App. 498 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the appellant is contending that the veteran's exposure to Agent Orange in Vietnam was a causative factor in the development of the conditions which ultimately led to his death. While it does not appear that one of the presumptive diseases listed in 38 C.F.R. § 3.309(e) contributed to the veteran's death, which would allow consideration of the appellant's claim on a presumptive basis, this does not obviate establishment of service connection on a direct basis. See Combee, supra. However, without a presumptive disease, the presumption of exposure is also not applicable and the appellant must provide evidence of exposure to Agent Orange in service. See McCartt v. West, 12 Vet.App. 164 (1999) (both service in Vietnam during the designate time period and the establishment of one of the listed diseases is required in order to establish entitlement to the in-service presumption of exposure to an herbicide agent). The appellant has met the three requirements for establishing a well-grounded claim for service connection for the cause of the veteran's death. The death certificate shows the immediate cause of death as respiratory failure due to bronchopneumonia due to chronic pancreatitis. Calcific pancreas, diabetes mellitus, mesenteric abscess, and cirrhosis of the liver were listed as significant conditions contributing to death but not resulting in the underlying cause. The Board finds that this evidence satisfies the first element of a well-grounded claim. The Board accepts the appellant's testimony that the veteran was exposed to Agent Orange while in Vietnam as true for the purposes of establishing a well-grounded claim. This is the second element of a well-grounded claim. A June 1999 VA physician's medical opinion states that it is "possible that diabetes mellitus was in part due to Agent Orange exposure" and that "[I]f Agent Orange contributed to [the veteran's] medical problems, the most likely one would be the patient's chronic liver disease." This is the third element of a well- grounded claim, a nexus between the a condition that contributed to the veteran's death and exposure to Agent Orange. Therefore, the appellant has presented a well- grounded claim for service connection for the cause of the veteran's death, claimed as due to Agent Orange exposure, and to this extent only the appeal is granted. ORDER The claim of entitlement to service connection for the cause of the veteran's death, claimed as due to Agent Orange exposure, is well-grounded. REMAND Because the claim of entitlement to service connection for the cause of the veteran's death is well-grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). While the Board accepts the appellant's statements that the veteran was exposed to Agent Orange in service as true for purposes of establishing a well-grounded claim (see King v. Brown, 5 Vet.App. 19, 21 (1993)), there is no evidence in the claims file to support this assertion on the merits. On the basis of the above and pursuant to 38 C.F.R. § 19.9, the Board determines that further development of the evidence is essential for a proper appellate decision and, therefore, remands the matter to the RO for the following action: 1. The RO should obtain the veteran's service personnel records and prepare a summary of the exact dates the veteran was in Vietnam and the unit(s) to which he was attached. This summary and all supporting documentation regarding the veteran's service in Vietnam should be sent to the United States Armed Services Center for Research of Unit Records (USASCRUR) (formerly the U.S. Army & Joint Services Environmental Support Group (ESG)) at 7798 Cissna Road, Springfield, Virginia 22150-3197. The USASCRUR should be asked to verify whether the veteran was exposed to Agent Orange during his period of service in Vietnam. If such a request for verification of exposure to Agent Orange is not made, the RO should document why such a request was not made. 2. Thereafter, the RO should make a determination whether the veteran was exposed to Agent Orange in service. 3. The RO should readjudicate the claim of entitlement to service connection for the cause of the veteran's death. If any benefit sought remains denied, the appellant and her representative should be provided a supplemental statement of the case, which reflects RO consideration of all additional evidence, and the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the appellant is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the appellant until contacted by the RO. 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. DEBORAH W. SINGLETON Member, Board of Veterans' Appeals