Citation Nr: 0740357 Decision Date: 12/21/07
DOCKET NO. 06-30 832
)
)
)
Archive Date: 01/02/08
DATE
On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island
THE ISSUES
1. Entitlement to service connection for the cause of the veteran's death.
2. Entitlement to dependency and indemnity compensation
(DIC) benefits under 38 U.S.C.A. § 1151 (West 2002).
REPRESENTATION
Appellant represented by:
Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and D.B.
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran served on active duty from December 1971 to March
1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2005 rating determination of the Department of Veterans Affairs
(VA) Regional Office
(RO) in Providence, Rhode Island. The issues, while listed by the RO as one throughout the course of
the claim, have actually each been adjudicated and appealed, and are separate. Since the claim for
service connection for the cause of the veteran's death is being granted, the issue of DIC benefits
under 38 U.S.C.A. § 1151 is moot.
In May 2007, the appellant and D.B. testified before the undersigned Veterans Law Judge at a hearing
held in Providence, Rhode Island.
FINDINGS OF FACT
1. The veteran died in August 2004, at the age of 52. According to the death certificate, the cause of
his death was medullary carcinoma of the thyroid.
2. Service connection was not in effect for any disability during the veteran's lifetime.
3. Exposure to Agent Orange in service is conceded.
4. The veteran's fatal thyroid cancer has been related to in-service Agent Orange exposure.
CONCLUSIONS OF LAW
1. A service-connected disability caused the veteran's death. 38 U.S.C.A. §1310(a) (West 2002); 38
C.F.R. § 3.312
(2007).
2. The claim for DIC benefits under 38 U.S.C.A. § 1151 is moot. 38 U.S.C.A. § 1151 (West 2002);
38 C.F.R. § 3.361
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Since the claim for service connection for the cause of the veteran's death is being granted and the 38
U.S.C.A. § 1151 DIC claim is rendered moot as a consequence, any deficiencies in VA's duties to
notify or to assist the veteran are harmless. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107,
5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a) (2007).
The appellant argues that service connection is warranted for the cause of the veteran's death because
the veteran was exposed to Agent Orange in service at Ft. McClellan, and that such exposure caused
his fatal thyroid cancer.
In a claim where service connection was not established for the fatal disability prior to the death of the
veteran, the initial inquiry is to determine whether the fatal disorder resulted from disease or injury
incurred in or aggravated by service. The Board must determine whether the fatal disorder should
have been service-connected. See 38 C.F.R. § 3.312
(2007). Service connection is granted for a disability resulting from an injury suffered or disease
contracted while in active duty or for aggravation of a preexisting injury suffered or disease
contracted in the line of duty. See
38 U.S.C.A. § 1110 (West. 2002); 38 C.F.R. § 3.303 (2007). In addition, certain disorders - including
malignant tumors - - are presumed to have been incurred during service when manifested to a
compensable degree within a specified time
(usually, and for malignant tumors, one-year) following separation from service. See 38 C.F.R. §§
3.307, 3.309
(2007). Others, but not thyroid cancer, may be presumed service-connected based on Agent Orange
exposure.
38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309.
In this case, medullary cancer of the thyroid was not shown in service or within one year of service
discharge, but instead was first manifest in 2004. The veteran was stationed at Ft. McClellan from
April to June 1972 and he indicated in May 2004 that he had had no symptoms or treatment of
thyroid problems in service, but had been exposed to Agent Orange at Ft. McClellan during testing
procedures in June 1972.
In March 1999, the veteran took part in a VA Study of Army Chemical Corps Vietnam-era Veterans.
It was noted that the lipid-adjusted dioxin concentration for his blood sample was measured as 2,800
ppt.
The Director at the United States Armed Services Center for Research of Unit Records (USASCRUR)
indicated in June 2004 that the testing use of Agent Orange had been banned in 1970, and so the
veteran's exposure to Agent Orange while at Ft. McClellan would have been unlikely. However, the
Director suggested that Ft. McClellan be contacted to confirm his statement and for the possibility of
the use of chemicals and nerve gas during the veteran's tour of duty at Ft. McClellan.
Upon further investigation, it was revealed that Ft. McClellan's historical information on the veteran's
unit had been transferred to Ft. Leonard Wood in 1999. Ft. Leonard Wood's current Army Chemical
School personnel had no information on the 503rd Chemical Staff Specialist Class in
1972, and referred the liaison to the
USASCRUR to the Chemical Corps Museum. The museum historical information did not document
the use of Agent Orange during the time the veteran was at Ft. McClellan. The museum did
document the use of chemicals, but was unable to document the types of chemicals used.
In light of the above information, including the finding of dioxin in the veteran's blood sample, the
Board accepts that the veteran was exposed to Agent Orange at Ft. McClellan as claimed. There is
reasonable doubt as to this matter.
The May 2004 opinion from a VA physician, indicating that it was her opinion that it was very
possible/likely that the veteran's thyroid cancer was related to his Agent Orange exposure, is
accepted. There is no medical opinion of record to the contrary. Moreover, the physician gave
adequate supporting reasons for her opinion. She indicated that Agent Orange is clearly considered
related to the development of lung cancer which includes small cell cancer, a neuroendocrine tumor.
Medullary carcinoma of the thyroid is an amine precursor uptake decarboxylation, which is a
neuroendocrine tumor as well. Additionally, she reported that the Veterans and Agent Orange Update
(2000) indicates that there is evidence suggesting that Agent Orange has carcinogenic activity and can
cause certain cancers, specifically thyroid cancer, in animal studies. In light of the facts, the Board
finds that service connection for the cause of the veteran's death is warranted under
38 U.S.C.A. § 1310.
DIC benefits under 38 U.S.C.A. § 1310, granted immediately above, and DIC benefits under 38
U.S.C.A. § 1151, carry exactly the same benefits. An award of one precludes an award of the other
because the same benefits can not be awarded twice. Since service connection for the cause of the
veteran's death under 38 U.S.C.A. § 1310 has been granted, DIC under 38 U.S.C.A. § 1151 cannot be.
As
such, the appeal concerning DIC benefits under
38 U.S.C.A. § 1151 is moot and will be dismissed.
ORDER
Service connection for the cause of the veteran's death is granted.
The claim for DIC benefits under 38 U.S.C.A. § 1151 is dismissed.
____________________________________________
P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs