Citation Nr: 1326778	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  04-38 157	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.



REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney at Law



WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel


INTRODUCTION

The Veteran served on active duty from May 1956 to July 1959 and from October 1960 to October 1968, with additional Reserve service.  He died in March 2004.  The appellant is the Veteran's surviving spouse.  

This matter initially came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a July 2004 rating decision, by the Cleveland, Ohio, Regional Office (RO), which denied the appellant's claim of entitlement to service connection for the cause of the veteran's death.  She perfected a timely appeal to that decision.  The appellant appeared and offered testimony at a hearing before a Decision Review Officer (DRO) at the RO in March 2005.  A transcript of that hearing is of record.  

On September 10, 2008, the appellant testified at a hearing before the undersigned Veterans Law Judge sitting at the RO; a transcript of that hearing is of record.  At the hearing, the appellant submitted additional evidence for which she provided written waiver of RO review under 38 C.F.R. § 20.1304 (2012).  

In November 2008, the Board remanded the case to the RO for further development.  Following the requested development, a supplemental statement of the case (SSOC) was issued in August 2009.  

In a February 2010 decision, the Board denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death.  The appellant appealed this matter to the United States Court of Appeals for Veterans Claims (Court).  An Order of the Court, dated in April 2010, granted a Joint Motion for Remand and vacated the Board's decision.  This case was remanded for further readjudication and disposition consistent with the Joint Motion and the Court's Order.  

In February 2011, the Board remanded the case to the RO via the VA Appeals Management Center (AMC) for further evidentiary development.  The AMC completed the requested development and issued another SSOC in May 2013.  A review of the record reflects substantial compliance with the Board's Remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

FINDINGS OF FACT

1.  The Veteran died in March 2004, at the age of 65.  The immediate cause of death was reported as prostate cancer.  No other significant condition contributing to death was reported on the death certificate.  No autopsy was performed.  

2.  At the time of the Veteran's death, service connection was in effect for tinnitus, rated as 10 percent disabling, and bilateral hearing loss, rated as 0 percent disabling.  

3.  There is no evidence that the Veteran served in Vietnam during the Vietnam era; therefore, the presumption that he was exposed to Agent Orange or other herbicides is inapplicable, and there is no evidence showing direct exposure to Agent Orange in service including in Thailand.  

4.  The Veteran's fatal prostate cancer was not manifested in service or in the first post service year, and it is not otherwise shown to be related to his military service or any incident therein.  

5.  There is no competent evidence showing that a service-connected disability was the immediate or underlying cause of the Veteran's death; nor is there competent evidence showing that a service-connected disability or disabilities contributed substantially or materially to cause death.  

CONCLUSION OF LAW

The cause of the Veteran's death was not related to an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2012).  

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist.

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

Additionally, in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, 38 U.S.C.A. § 5103(a)  notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected.  Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007).  

In this case, VA satisfied its duty to notify by means of a letter dated in May 2004 from the RO to the appellant, which was issued prior to the RO decision in July 2004.  Additional letters were issued in March 2009 and November 2011.  Those letters informed the appellant of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence.  The Board finds that the content of those letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  She was provided an opportunity at that time to submit additional evidence.  In addition, the May 2013 SSOC provided the appellant with an additional 60 days to submit additional evidence.  Thus, the Board finds that the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim.  

It also appears that all obtainable evidence identified by the appellant relative to her claim has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notice.  The Veteran's electronic Virtual VA claims file also has been reviewed and no relevant evidence was located there.  

VA has obtained service medical records, post-service treatment records and assisted the appellant in obtaining evidence.  The Board finds that there is no duty on VA's part to obtain a medical opinion because there is no competent evidence of record indicating that the Veteran's cause of death may be associated with his active service.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The stated cause of death (prostate cancer) was first shown many years after separation from service and there is no competent evidence to show that the condition is related to service.  The standards of McLendon have not been met.  The service and post-service medical records provide evidence against the claims.  A decision on the merits at this time does not violate the duty to assist or prejudice the appellant.  See also Bernard v. Brown, 4 Vet. App. 384 (1993).  

II.  Factual Background.

The record indicates that the Veteran served on active duty from May 1956 to July 1959 and from October 1960 to October 1968.  Service personnel records reflect that he served in Okinawa and Thailand; the records also show that the Veteran's military specialty was a weapons control systems technician.  He was awarded the National Defense Service Medal, the Air Force Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.  

The record reflects that the Veteran died in March 2004, at the age of 65.  A certificate of death, dated in March 2004, listed the immediate cause of death as prostate cancer.  No other significant condition contributing to death was reported on the death certificate.  No autopsy was performed.  At the time of the Veteran's death, service connection was in effect for tinnitus, rated as 10 percent disabling, and bilateral hearing loss, rated as 0 percent disabling.  

The Veteran's service treatment records (STRs) do not reflect any complaints, findings or diagnoses of any cancer, to include prostate cancer.  

Of record is a response from the National Personnel Records Center (NPRC), dated in October 2003, indicating that they were unable to determine whether or not the Veteran had in-Country service in the Republic of Vietnam.  

In a statement in support of claim (VA Form 21-4138), dated in November 2003, indicating that he did not set foot in Vietnam.  He stated that he flew over Vietnam twice and received combat pay twice.  The Veteran indicated that he worked on F101 in Thailand.  He was in Theater of Operations working on Combat Jets in direct support of Vietnam.  

The appellant's initial claim for service connection for the cause of the Veteran's death (VA Form 21-534) was in April 2004.  Submitted in support of the claim were private medical records from January 2003 to April 2003.  These records indicate that a CT scan performed in January 2003 revealed multiple lung nodules in a pattern strongly suggesting metastatic disease.  In February 2003, the Veteran underwent an MRI of the pelvis which revealed a large exophytic mass which may represent a large exophytic prostate neoplasm; it was determined that the mass appeared to arise from the level of the prostate and extend cranially.  Subsequent biopsy in February 2003 confirmed a diagnosis of prostate cancer.  

At a personal hearing in March 2005, the appellant indicated that she met the Veteran in 1958 while he was in the Navy; she stated that he left the Navy in July 1959 and entered the Air Force in 1960.  It was noted that the Veteran served in the Air Force from 1960 to 1968; during that period, he served in Thailand from November 1966 to November 1967.  The appellant related that the Veteran sent her cassette tapes while he was in Thailand; while she did not recall any mention of the Veteran serving in Vietnam, he did report working on the airplanes and radars in support of Vietnam.  She also stated that while she did not know whether or not the Veteran served in Vietnam, she knew that Thailand was close to Vietnam.  She maintained that he worked on the systems of the planes that flew in and out of Vietnam; therefore, she argued that many have been exposed to the Agent Orange.  The appellant stated that, when the Veteran came home, he mentioned that the guys that were in Vietnam got the chemicals on them and they had to be hosed down.  

At her personal hearing in September 2008, the appellant testified that the Veteran worked as an electrician and then he went into weapons controls in the Air Force.  She stated that he worked on the 101's when he was in Thailand during the Vietnam War.  The appellant reported that the Veteran told her that he worked on the nose of the airplanes and they flew through Vietnam; therefore, she argued that whatever had been sprayed in Vietnam would be on the airplanes that the Veteran worked on.  Consequently, he would have become exposed to Agent Orange from working on the airplanes that flew into Vietnam. The appellant maintained that, at the time that the Veteran signed the form stating that he never set foot in Vietnam, he was quite ill and his mind was not where it should be.  The appellant also testified that the Veteran reported going into Da Nang twice; she noted that he received combat pay twice.  

Received in December 2008 was a medical statement from Dr. Scot C. Remick, dated in September 2003, indicating that he first saw the Veteran in consultation in April 2003; he noted that the Veteran had been diagnosed with a metastatic adenocarcinoma admixed with sarcoma and adenocarcinoma of the prostate.  Dr. Remick also noted that the Veteran had biopsy proven soft tissue sarcoma in pulmonary metastases, in addition to his prostate biopsy.  Dr. Remick stated that he was writing to confirm the diagnosis of a soft tissue sarcoma of the prostate in the setting of the Veteran's apparent exposure to Agent Orange during his service in the Vietnam War.  

Also received in December 2008 was a copy of an article regarding the possible chemical weapons testing in Thailand by the United States in 1964 and 1965.  The article suggested that herbicides, including Agent Orange, were tested and stored in Thailand during the Vietnam era.   The articles also stated that the chemical was sprayed from light planes, so that runways and chemical supply bases could have been set up anywhere.  It was also maintained that Thailand was one of the US military's most important supply routes during the war.  The Veteran did not begin his service in Thailand until November 1966.  Accordingly, the Board is unable to find that the Veteran was presumptively exposed to herbicides during his tour of duty in Thailand.  

Of record is a response from the National Personnel Records Center (NPRC), dated in April 2009, indicating that there were no records of exposure to herbicides.  Another response was received from NPRC in January 2012, which reported that they had identified a Navy record but no Air Force record.  

Of record is a response from the Defense Personnel Records Information Retrieval System (DPRIS), dated in May 2012, indicating that they reviewed the available January through May 1967 history submitted by the 388th Tactical Fighter Wing (TFW), the higher headquarters for the 388th Armament & Electronic Maintenance Squadron (AEMS), stationed at Korat Royal Thai Air Force Base (RTAFB), Thailand and additional available historical data.  They reported that, after a review of the data, they were unable to document that the Veteran was exposed to Agent Orange while serving at Korat RTAFB, Thailand, or that his duties required him to be on or near the perimeter of the base.  To date, historical data does not document Agent Orange spraying, testing or storage at Korat RTAFB, Thailand during the period.  They also reviewed the available July through October 1962 history submitted by the 313th Air Division (AD), the higher headquarters for 18th AEMS, 18th TFW stationed at Kadena AB, Okinawa, Japan and additional available historical data.  They were again unable to document that the Veteran was exposed to Agent Orange while serving at Kadena AB.  Again, historical data does not document the use, spraying, storage or testing of Agent Orange at Kadena AB, Okinawa, Japan during July through October 1962.  

In another response from NPRC, dated in May 2012, it was confirmed that the Veteran served on continuous active duty in the Air Force from October 3, 1960 to October 2, 1968.  

Of record is another response from DPRIS, dated in March 2013, indicating that they researched the U.S. Air Force (USAF) station listing for 1966/1967 and found that the 388th Armament and Electronic Maintenance Squadron (AEMS), 388th Tactical Fighter Wing (TFW), the higher headquarters for the 388th AEMS was stationed at Korat Royal Thai Air Force Base (RTAFB), Thailand during the specified periods.  It was noted that they researched the available November 1966 history submitted by the 13th Air Force (AF), the higher headquarters for the 388th TFW and the 388th AEMS.  They further researched the available November 1967 history submitted by the 388th TFW.  After a research of the data, they were unable to document or verify that the Veteran stopped and had a layover in the Republic of Vietnam (RVN) during November 1966 and November 1967.  The histories were negative and did not report on the Veteran or unit personnel stopping in the RVN during November 1966 or November 1967.  Also, they noted that they are not a records repository; therefore, they do not maintain any personnel official military personnel files which would contain the Veteran's travel orders.  

In a memorandum, dated May 9, 2013, the RO determined that the information required to corroborate or concede the Veteran's exposure to Agent Orange as claimed by the Veteran and his surviving spouse is insufficient.  It was noted that all procedures to obtain this information from the Veteran, his surviving spouse, and federal sources have been properly followed.  Evidence of written and telephonic efforts to obtain this information has been documented in the file.  It was determined that all efforts to obtain the needed information had been exhausted, and any further attempts would be futile.  

III.  Legal Analysis.

Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service).  To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Holton v. Shinseki, 557 F.3d 1362 (2009).   

When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the Veteran's service.  38 C.F.R. § 3.303(d).  In addition, service connection may be granted for a chronic disease, including malignant tumors, if manifested to a compensable degree within the prescribed presumptive period-one year following separation from service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

Service connection for the cause of a Veteran's death may be granted when a disability incurred in or aggravated by service either caused or contributed substantially or materially to the Veteran's death.  For a service-connected disability to be the cause of death, it must singly, or with some other condition, be the immediate or underlying cause of death, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather 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 must be shown that there was a causal connection.  U.S.C.A. § 1310; 38 C.F.R. § 3.312.  

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.  Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death from the view point 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. In cases where the primary causes of death are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, 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.  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; 38 C.F.R. § 3.312.  

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 C.F.R. § 3.312(c) (3), (4).  

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(a) (3); 38 C.F.R. §§ 3.307, 3.309.  

Effective August 31, 2010, where a Veteran was exposed to an herbicide agent during active military, naval, or air service in the Republic of Vietnam, the following diseases shall be service connected, even though there is no record of such disease during service: chloracne, or any other acneform disease consistent with chloracne; type II diabetes (also known as Type II diabetes mellitus, or adult-onset diabetes); Hodgkin's disease; ischemic heart disease, including, but not limited to, acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery, and stable, unstable, and Prinzmetal's angina; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (i.e., cancers of the lung, bronchus, larynx, or trachea); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); or soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e) (2012).  

In order to establish service connection by presumption, based on herbicide exposure, a disease listed above (see 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).  

Even if the statutory presumptions are inapplicable, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Veterans Dioxin and Radiation Exposure Compensation Standards 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 actual direct causation.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: 

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).  

In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  However, in certain instances, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have generally been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).   

The service personnel records and other official documents do not reflect that the Veteran ever spent time in Vietnam, despite the Appellant's contentions that he periodically visited Vietnam during service.  

As reported above, the appellant testified that she was married to the Veteran since he entered military service until the time of his death and that he told her that while stationed in Thailand, he worked on planes that went into Vietnam, and he actually flew into Da Nang twice.  However, while the Veteran was awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal, his service treatment records are negative for any evidence of service in the Republic of Vietnam.  Moreover, in March 2013, the Department of Defense notified the RO that they had researched records of the U.S. Air Force during the period that the Veteran served in Thailand, and they were unable to document or verify that the Veteran stopped and had a layover in the Republic of Vietnam (RVN) during November 1966 and November 1967.  The histories were negative and did not report on the Veteran or unit personnel stopping in the RVN during November 1966 or November 1967.  

In regard to his Thailand service, the evidence does not establish that the Veteran was in an area of Thailand where testing of tactical herbicides had been applied, or even in Thailand at the time such testing took place in 1964 or 1965.  While the appellant submitted an article regarding the possible chemical weapons testing in Thailand by the United States in 1964 and 1965, it is noteworthy that the Veteran did not begin his service in Thailand until November 1966.  Accordingly, the Board is unable to find that the Veteran was presumptively exposed to herbicides during his tour of duty in Thailand.  

The Board finds that the appellant is competent and credible to report on what she saw and heard such as the Veteran claiming to have been sent to Da Nang twice and receiving combat pay, and that the planes he worked on may have had the chemicals on them.  See Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra.  

However, the Board finds that the official finding by the NPRC that the Veteran did not have any service in the Republic of Vietnam, and the official finding of the Department of Defense that the Veteran was not exposed to Agent Orange through service at Air Force bases in Thailand or Okinawa is of greater probative value than the contrary claims by the widow.  This is because NPRC and JSRRC are official government agencies charged with having this information and the claimant has not alleged, much less shown, clear evidence to the contrary.  See Mindenhall v. Brown, 7 Vet. App. 271 (1994) (holding that there is a "presumption of regularity" under which it is presumed that government officials have properly discharged their official duties, unless there is clear evidence to the contrary.)   

Accordingly, the Board finds that the most competent and credible evidence of record shows that the Veteran did not serve in the Republic of Vietnam during the Vietnam Era.  Therefore, he is not presumed to have been exposed to Agent Orange in service, and any service connection presumption based on that exposure is not applicable.  In view of that, in order to prevail on her claim that any of the disease process that the Certificate of Death listed as causing or contributing to his death, or any other disability, was caused by his herbicide exposure while on active duty, she must prove that he had actual herbicide exposure.  No evidence of this sort has been submitted.  Thus service connection for his cause of death from prostate cancer is not shown to be warranted based on presumptive or direct exposure to Agent Orange.  See 38 C.F.R. § 3.309(e) and Combee, supra.  

Further, the record does not demonstrate that the Veteran's death from prostate cancer was related to any incident of the Veteran's service.  In this regard, the Veteran's service treatment records are silent for complaints of or treatment for any malignancy, including prostate cancer, while in service.  The record reflects that the first diagnosis of the Veteran's fatal condition was in February 2003 (many years after his discharge from service).  In the absence of demonstration of continuity of symptomatology, this is too remote from service to be reasonably related to service.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  As discussed above, prostate cancer is also not shown during active service, nor was it manifested within one year of service; thus service connection on a direct or one year presumptive basis is also not warranted.  

The Board recognizes that the appellant has submitted a private medical statement which states that the Veteran was diagnosed with prostate cancer "in the setting of apparent exposure to Agent Orange during his service in the Vietnam War."  However, the Board finds that the opinion lacks probative value because it is based on an inaccurate factual premise-namely that the Veteran was exposed to Agent Orange during service.  As discussed above, there is no evidence in the record that supports a finding, either presumptively or on a direct theory, that the Veteran was exposed to Agent Orange during service.  Moreover, the private physician failed to provide any rationale to support his opinion.  The weight of a medical opinion is diminished insofar as it is ambivalent; the basis of the opinion is not stated; it is based on an inaccurate factual premise; or it is based on an examination of limited scope.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (where opinion relied heavily or entirely on veteran's recitation of his own medical history).  

Finally, the Board notes that there is no indication in the record-nor does the appellant contend-that the Veteran's service-connected disabilities (bilateral hearing loss and tinnitus) caused or contributed to his death.  The Board finds that neither of these disabilities was the primary cause, or a contributory cause, of the Veteran's death.  

In conclusion, the Board finds that the competent evidence of record fails to establish that the cause of the Veteran's death was due to any incident of the Veteran's service.  The preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death.  As there is not an approximate balance of positive and negative evidence regarding the merits of the appellant's claim that would give rise to a reasonable doubt in favor of the appellant, the benefit-of-the-doubt rule is not helpful in this instance.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  

For the reasons set forth above, the evidence weighs against the appellant's claim of entitlement to service connection for the cause of the Veteran's death, and the appeal must be denied.  

ORDER

Service connection for the cause of the Veteran's death is denied.


____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



{'dataset': 'bva_opinions'}