Case A26040606

T. REYNOLDS · 2026 · Case ID: A26040606

GRANTED

Summary

The Veteran, who served in the U.S. Army from April 1967 to August 1967, had his cause of death claim reviewed by the Board of Veterans' Appeals. The Veteran's surviving spouse appealed the denial of service connection for the cause of death and Dependency and Indemnity Compensation (DIC) benefits. The Veteran's death certificate listed cardiac failure as the cause of death. The Veteran had a service connection for bilateral knee conditions, but the Appellant claimed in-service exposure to herbicides, including Agent Orange, while the Veteran was stationed at Fort Ord, California, in 1967. The Appellant provided testimony that the Veteran began experiencing heart issues after service and that herbicides were sprayed on a replica Vietnam village at Fort Ord. A private physician, Dr. M.M., who treated the Veteran for heart failure from 2013 until his death, opined that the Veteran's in-service herbicide exposure was a significant contributing factor to his heart condition. The Appellant also submitted medical literature and scholarly articles linking Agent Orange exposure to heart failure, as well as articles discussing toxic exposure at Fort Ord and its status as a Superfund site. The Board found the evidence, including the private medical opinion, lay testimony, and scholarly articles, to be in approximate balance regarding the Veteran's herbicide exposure and the causal link between that exposure and his cardiac failure. Applying the benefit of the doubt, service connection for the cause of death was granted. Consequently, the claim for DIC benefits under 38 U.S.C. § 1318 was dismissed as moot.

Rationale

Evidence in approximate balance for herbicide exposure and cardiac failure link; Benefit of the doubt applied in favor of the appellant; Private medical opinion linked herbicide exposure to heart condition

Service Branch

ARMY

Special Benefit

DIC / CAUSE OF DEATH

Docket No.

250904-581381

Full Decision Text

Citation Nr: A26040606
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250904-581381
DATE: April 30, 2026

ORDER

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

Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318, is dismissed.

FINDINGS OF FACT

1. The evidence is at least approximately balanced as to whether the Veteran's cause of death was related to disabilities attributable to his service.

2. The grant of service-connection for cause of death renders the issue of entitlement to DIC benefits under 38 C.F.R. § 1318 moot.

CONCLUSIONS OF LAW

1. The criteria for establishing entitlement to service connection for the Veteran's cause of death is denied. have been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.5, 3.312

2. The criteria for dismissal of entitlement to DIC under 38 U.S.C. § 1318 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran's service. The Veteran, served on active duty in the United States Army from April 1967 to August 1967. The Veteran was clearly a credit to the United States Military and his family, and his service to our country is greatly appreciated.

Unfortunately, the Veteran died in August 2024. The Appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2025 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In September 2025, the Appellant disagreed with the abovementioned rating decision and filed a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)). The Appellant selected the Hearing Lane by submitting notice of disagreement under the Appeals Modernization Act (AMA). 38 C.F.R. § 20.202. In January 2026, the Appellant testified at a hearing before a Veterans Law Judge (VLJ). Accordingly, the Board is limited to review of the evidence in the record at the time of the rating on appeal and the evidence submitted up to 90 days after the Appellant's hearing before the Board. 38 C.F.R. § 20.302.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the above claim. 38 C.F.R. § 20.300. If the Appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection-Legal Criteria

Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Presumptive service connection on the basis of herbicide exposure is authorized for specified diseases. 38 U.S.C. § 1116; 38 C.F.R. § 3.309. When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the weight of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Cause of Death-Legal Criteria

The Appellant seeks Dependency and Indemnity Compensation (DIC) benefits. Such benefits are payable to the surviving spouse, child, or parents of a veteran if the veteran's death was from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5.

To establish service connection for the cause of a veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided, or lent assistance to producing death, for example when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c).

When he died, the Veteran was service connected for left and right knee osteoarthritis. See June 2025 Rating Decision Codesheet. Nevertheless, entitlement to service connection for his cause of death still may be established if a disability owing to his service either caused or contributed substantially or materially to his death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In other words, if the Veteran's cause of death is due to, for instance, in-service exposure to carcinogens including Agent Orange, service connection for cause of death may be warranted.

Cause of Death-Analysis

Here, the Veteran's death certificate lists his cause of death as cardiac failure. See August 2024 Death Certificate. At the time of his death, as noted above, service connection was in effect for bilateral knee conditions. However, the Veteran was stationed at Fort Ord, California during 1967, and the Appellant claims that the Veteran was exposed to herbicides, including Agent Orange, while stationed there.

The Board notes that the Veteran's military personnel records indicate that he was stationed at Fort Ord from April 1967 to June 1967. At the January 2026 Board hearing, the Appellant testified that the Veteran began having heart issues shortly after leaving service. Further, she noted that the Veteran trained soldiers in demolitions at Fort Ord before they were sent to Vietnam. She noted that the Veteran told her on the military base they had constructed a replica Vietnam village, and that they were spraying the area with herbicides.

The Veteran's treatment records document treatment for congestive heart failure and cardiomyopathy. Further, during the 90-day evidentiary window following the hearing, the Appellant submitted a letter dated February 2026 from Dr. M.M. In this letter, Dr. M.M. indicated that he treated the Veteran for heart failure from 2013 to his death. Dr. M.M. noted that the Veteran's in-service exposure to herbicides was a significant contributing factor to his heart condition and played a role in the development of his cardiomyopathic process.

Additionally, within the 90-day evidentiary window following the Board hearing, the Appellant submitted medical literature regarding Agent Orange's relation to heart failure, and scholarly articles.

Regarding Fort Ord specifically,
for congestive heart failure and cardiomyopathy. Further, during the 90-day evidentiary window following the hearing, the Appellant submitted a letter dated February 2026 from Dr. M.M. In this letter, Dr. M.M. indicated that he treated the Veteran for heart failure from 2013 to his death. Dr. M.M. noted that the Veteran's in-service exposure to herbicides was a significant contributing factor to his heart condition and played a role in the development of his cardiomyopathic process.

Additionally, within the 90-day evidentiary window following the Board hearing, the Appellant submitted medical literature regarding Agent Orange's relation to heart failure, and scholarly articles.

Regarding Fort Ord specifically, the Appellant submitted scholarly articles discussing the history of toxic exposure at the base, as well as the base's status as a Superfund Site, with remaining present-day toxic exposure. See Poison Oak Control Work at Fort Ord, California, Floyd Otter. Additionally, the Appellant submitted news articles documenting Fort Ord as an EPA Superfund site, investigative articles documenting the storage and use of herbicides commonly referred to as Agent Orange at Fort Ord, and citations to prior Board decisions wherein Agent Orange was found to be stored at Fort Ord. The articles describe exposed activities and occupations at Fort Ord, consistent with the activities described by the Appellant in the January 2026 hearing testimony.

In this case, 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 (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. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation).

The Board has considered the medical evidence of record. The Board notes that the private examiner is a medical professional competent to opine as to the Veteran's cause of death. There is no evidence that the examiner is not credible. Moreover, the examiner provided an analysis based upon both subjective and objective information to form opinions based upon medical expertise.

The Appellant's testimony, articles regarding toxic exposure risks at Fort Ord, and the status of Fort Ord as a Superfund site are probative evidence of the Veteran's toxic exposures at Fort Ord, and the medical articles and literature confirm that such exposures present a heightened risk for developing cardiac conditions. Thus, the Board finds that the evidence of record is, at least, in approximate balance to establish a plausible causality between the Veteran's cardiac failure and his active-duty service.

Upon a thorough review of the record and given the VA medical opinion and private medical opinion discussed above, the Board finds that the evidence of record is in approximate balance regarding whether the Veteran was exposed to herbicides during his service at Fort Ord. Further, the evidence is at least approximately balanced as to whether the Veteran's cause of death was at least as likely as not etiologically related to his active-duty service, to specifically include his now conceded in-service herbicide exposures. The evidence is thus at least approximately balanced as to whether the Veteran's cause of death is related to his service. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Appellant, entitlement to service connection for the Veteran's cause of death is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

In sum, the Appellant's claims
icides during his service at Fort Ord. Further, the evidence is at least approximately balanced as to whether the Veteran's cause of death was at least as likely as not etiologically related to his active-duty service, to specifically include his now conceded in-service herbicide exposures. The evidence is thus at least approximately balanced as to whether the Veteran's cause of death is related to his service. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Appellant, entitlement to service connection for the Veteran's cause of death is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

In sum, the Appellant's claims for entitlement to service connection for the Veteran's cause of death is granted.

DIC Under 38 U.S.C. § 1318-Analysis

The Appellant has submitted a claim based on 38 U.S.C. § 1318, as an alternative theory of entitlement to the service connection for the cause of the Veteran's death in seeking DIC compensation benefits.

In light of the grant of benefits described above, the Board concludes that the Appellant's respective DIC claim is rendered moot. Indeed, pursuant to 38 U.S.C. § 2307, there are service-connected death burial benefits that are available under 38 U.S.C. § 1310, but not under 38 U.S.C. § 1318. See Mintz v. Brown, 6 Vet. App. 277, 282-83 (1994); see also Moffitt v. Brown, 10 Vet. App. 214, 224 (1997).

Entitlement to VA benefits under 38 C.F.R. § 1310 is the greater benefit, and it is granted in full. Therefore, no additional benefit (monetary or otherwise) can be gained under 38 C.F.R. § 1318, nor does any controversy remain. See Hornick v. Shinseki, 24 Vet. App. 50, 53-57 (2010); Timberlake v. Gober, 14 Vet. App. 122 (2000). Further, the Court has indicated that only if an Appellant's claim for service connection for the cause of the Veteran's death is denied under 38 U.S.C. § 1310 is VA required to also consider an appellant's claim under the provisions of 38 U.S.C. § 1318. See Timberlake, 14 Vet. App. at 134-35.

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In light of the grant of service connection for the cause of the Veteran's death, the claim for entitlement to DIC under 38 U.S.C. § 1318 is moot, and this appealed issue is dismissed.

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Gresham, Trevor

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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