Case A26040647

Summary

The Veteran, an Army service member who served from January 1967 to October 1968, including service in the Republic of Vietnam, was awarded dependency and indemnity compensation (DIC) for the cause of death. The Veteran's death certificate listed cardiac arrest due to chronic obstructive pulmonary disease (COPD) as the cause of death. The surviving spouse appealed the denial of service connection for COPD as the cause of death, contending that the Veteran's exposure to Agent Orange during service caused his COPD. The Board reviewed the evidence, including the Veteran's service records, which confirmed Vietnam service and awarded medals such as the Purple Heart. A private physician provided a favorable opinion, stating it was at least as likely as not that Agent Orange exposure caused the Veteran's COPD. The physician cited medical literature and a 2012 Army Chemical Corps Vietnam-Era Veterans Health Study linking Agent Orange exposure to COPD and other diseases. The Board found this opinion highly probative, well-reasoned, and supported by the evidence, including conceded Agent Orange exposure and post-service treatment records for COPD. With no contrary medical opinion, the Board resolved all doubt in the Veteran's favor and granted service connection for COPD as the cause of death.

Rationale

Private physician opinion found probative and well-reasoned; Opinion supported by conceded Agent Orange exposure; No contrary medical opinion of record

Full Decision Text

Citation Nr: A26040647
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 210715-172727
DATE: April 30, 2026

ORDER

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

FINDING OF FACT

1. The Veteran's service records reflect that he served in the Republic of Vietnam.

2. The Veteran died in February 2020.  The death certificate lists the immediate cause of the Veteran's death as cardiac arrest due to chronic obstructive pulmonary disease (COPD).

3. The Veteran's presumed exposure to Agent Orange contributed substantially and materially to the cause of the Veteran's death.

CONCLUSION OF LAW

The criteria for service connection for cause of the Veteran's death are met.  38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1967 to October 1968.  He served in the Republic of Vietnam and was awarded the National Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal, and a Purple Heart.  The Veteran died in February 2020.  The appellant is the Veteran's surviving spouse.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA), which constituted a higher level review (HLR) of a May 2020 rating decision.

In July 2021, the Veteran timely appealed the October 2020 rating decision on a VA Form 10182 and selected the hearing docket.  Based upon the Veteran's selection of the hearing docket, the Board may consider: (1) evidence in the record at the time of the May 4, 2020, rating decision; and (2) evidence submitted by the Veteran or his representative within the 90-day period following the date of his hearing, from April 14, 2025 to July 13, 2025.  See 38 C.F.R. § 20.301.

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Dependency and indemnity compensation is available to a surviving spouse who can establish, among other things, that the Veteran died from a service-connected disability.  38 U.S.C. § 1310.  Service connection for the cause of the Veteran's death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death.  38 C.F.R. § 3.312(a); see 38 U.S.C. § 1310; see also 38 U.S.C. §§ 1110, 1131, and 1112.  A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.  38 C.F.R. § 3.312(b).

A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent
 established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death.  38 C.F.R. § 3.312(a); see 38 U.S.C. § 1310; see also 38 U.S.C. §§ 1110, 1131, and 1112.  A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.  38 C.F.R. § 3.312(b).

A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death.  38 C.F.R. § 3.312(c).  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.  Id.  Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature.  Id.  

The Board notes that Agent Orange exposure has been conceded by VA.  If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e).  COPD is not listed as a disease associated with exposure to herbicide agents.  38 C.F.R. § 3.309(e).

Even if the Veteran cannot be granted service connection on a presumptive basis, he can still be granted direct service connection if he had COPD at any point during the appeal period that is related to his Agent Orange exposure, or any other incident or injury in service.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

At the outset, prior to his death, the Veteran was service connected for posttraumatic stress disorder (PTSD), bilateral hearing loss, tinnitus, residuals of prostate cancer, erectile dysfunction, right fourth finger scars, and residual shell fragment wound of the lower back.  The Veteran's death certificate lists his primary cause of death as cardiac arrest and COPD. 

The appellant contends that the Veteran incurred several health conditions, including COPD, as a result of his exposure to Agent Orange while he served in the Republic of Vietnam.  In support of this contention, the appellant submitted, during the relevant evidentiary window, a July 2021 letter from a private physician. 

In opining that it was at least as likely as not that the Veteran's Agent Orange exposure caused his COPD, the physician explained that COPD is caused by prolonged exposure to harmful particles or gases.  He noted that although cigarette smoking is the most common cause of COPD worldwide, other causes may include second-hand smoke, environmental and occupational exposures, and alpha-1 antitrypsin deficiency.  He further reasoned that it was not a foreign concept that environmental hazards including Agent Orange are the most likely cause of COPD and referenced a 2012 Army Chemical Corps Vietnam-Era Veterans Health Study, which found that Vietnam veterans have a higher likelihood of reporting COPD than the general population.  He explained that the Army Chemical Corps Vietnam-Era Veterans Health Study found that veterans who were exposed to Agent Orange were more likely to have received a COPD diagnosis from their physicians and that toxicants such as AO have inherent properties, dioxin/benzene, which create the most disease burden.  The physician cited medical literature and stated that volatile organic solvents and hydrocarbons such as dioxin/benzene are strongly linked to COPD.  He noted that the Veteran had a history of exposure to dioxin and dioxin has been shown numerous times in the literature and of importance, is the nexus between benzene and COPD.  He further explained that dioxin is very toxic agent even in the smallest doses and there is not a single organ or system in the body that stands alone against these chemicals because of how damaging they are.  He stated that benzene/dioxin is retained in some body tissues for a long time (even decades), so
/benzene, which create the most disease burden.  The physician cited medical literature and stated that volatile organic solvents and hydrocarbons such as dioxin/benzene are strongly linked to COPD.  He noted that the Veteran had a history of exposure to dioxin and dioxin has been shown numerous times in the literature and of importance, is the nexus between benzene and COPD.  He further explained that dioxin is very toxic agent even in the smallest doses and there is not a single organ or system in the body that stands alone against these chemicals because of how damaging they are.  He stated that benzene/dioxin is retained in some body tissues for a long time (even decades), so target organ exposure continues even after external exposure ceases. He noted that the data suggests an association between exposure to dioxin, epigenetic alterations, and an increased susceptibility to develop several diseases, such as cancer and inflammatory diseases.  He concluded that there are strong implications and evidence that toxicants have a strong nexus to COPD.  He also concluded that the Veteran's questionable smoking risk factor may have caused his COPD; however, it was not incorrect to claim the Veteran's Agent Orange exposure also caused his COPD.

The Board finds that this opinion is highly probative as it reflects consideration of all relevant facts.  The physician provided detailed rationale for the conclusions reached.  His conclusions are also supported by the medical evidence of record, which includes service records and other documentation conceding an exposure to Agent Orange, post-service treatment records documenting treatment for COPD, and medical research suggesting that Agent Orange exposure results in COPD.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  There is no probative medical opinion of record to the contrary.

Resolving all doubt in the Veteran's favor, as is required by law, the Board finds that the Veteran's COPD was caused by exposure to Agent Orange in service, and the claim of entitlement to service connection for cause of death is granted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another, is the benefit of the doubt doctrine not for application).

 

 

S.C. KREMBS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Bilstein, Counsel

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.