Citation Nr: 1206269 Decision Date: 02/17/12 Archive Date: 02/23/12 DOCKET NO. 05-15 453 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the Veteran's death, for purposes of receiving Dependency and Indemnity Compensation (DIC). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Katie K. Molter, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1975. The Veteran died in June 1990. The appellant is his widow. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the RO which denied the appellant's claim. The appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge in December 2007. A transcript of the hearing has been reviewed and associated with the Veteran's claims file. The Board issued a decision in February 2009 which denied the appellant's claim. The appellant filed a timely appeal to the United States Court of Appeals for Veterans Claims (CAVC). In February 2010, the CAVC granted a joint motion for remand, vacating the February 2009 Board decision and remanding the case for further proceedings. The Board remanded the claim for development consistent with the joint motion in June 2010. The RO completed the requested action identified in the June 2010 remand and, thus, the Board can proceed to a decision on the merits. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As a final preliminary matter, the Board notes that a review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran died in June 1990, at the age of 52; the Certificate of Death establishes that the cause of the Veteran's death was cancer of the lung, metastatic. 2. At the time of the Veteran's death, he had not established entitlement to service connection for any disabilities. 3. The evidence of record establishes that the Veteran served in the U.S. Air Force, as a security police supervisor, in Thailand from June 1970 to January 1971 at the Royal Thai Air Force Base of Nakhon Phanom, in an area in which herbicides were used on or near the perimeters of Thailand military bases; and thus the record evidence establishes that the Veteran was exposed to herbicide agents in service. 4. The record evidence is in relative equipoise as to whether there is a casual relationship between the Veteran's exposure to herbicide agents in service and the subsequent development of his fatal lung cancer. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the appellant, a disease or injury of service origin caused, or contributed substantially or materially to cause, the Veteran's death. 38 U.S.C.A. §§ 1110, 1116, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specific to a claim for Dependency and Indemnity Compensation (DIC) benefits, VA's notice requirements 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 (2007). VA satisfied the notice requirements of the VCAA by means of February, May, and June 2004 letters. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims decided herein. The Veteran's service treatment records, personnel records, and his death certificate are of record. Additionally, the JSRRC and the Air Force Historical Research Agency were contacted in order to assist in trying to ascertain whether the Veteran was sent to Vietnam during his military service. There is no indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the issues on appeal. Given the foregoing, the Board finds that there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. The Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above; it finds that the notice and development of the claims decided herein has been consistent with these provisions. Accordingly, the Board will proceed to a decision on the merits. II. Pertinent Laws and Regulations Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.303. To establish entitlement to service connection for the cause of the veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that a service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312(c)(1). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an 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(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309 (e). Furthermore, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne; Type II diabetes mellitus; 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); All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; Non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; Parkinson's disease; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2011). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. III. Analysis The appellant has alleged that the Veteran died of lung cancer, metastatic, which was as a result of the Veteran's exposure to herbicide agents while he was serving in U.S. Air Force during the Vietnam Era. The appellant has argued that the Veteran was part of several classified missions into Vietnam from the Air Force base in Thailand. In support of her claim the appellant submitted a letter from the Veteran to his parents dated in 1970 and testified at a December 2007 Board hearing in which she indicated that the Veteran had relayed to her that his military orders took him to Vietnam while he was stationed in Thailand. However, the letter and the testimony do not establish that the Veteran was in Vietnam during his active military duty. In November 2010 the JSRRC was requested to verify whether any members of the Veteran's unit performed TDY (temporary duty) search and rescue missions in South Vietnam while stationed out of Nakhon Phanom RTAFB, Thailand. The JSRRC provided a negative response saying that the unit history did not reveal that the 56th SPS was sent TDY into South Vietnam to participate in search and recovery missions during the period of June 1970 to February 1971. Please review the Veteran's OMPF for information concerning duty assignments, TDY, and special duty assignments the Veteran may have performed during his tour. The Veteran's OMPF was obtained and reviewed. Nothing in the Veteran's personnel records indicated that he was sent to Vietnam for duty assignments, TDY, or special duty assignments. The Veteran's service personnel records, specifically his AF-1712 form, indicate that the Veteran served overseas three times. Two of these foreign service tours were during the Vietnam Era. The Veteran served in Spain from November 1962 to February 1965 and served in Thailand from July 1970 to June 1971. During both of these tours of foreign service, the Veteran's Military Occupational Specialty (MOS) was a security police supervisor. However, the record does not show that the Veteran served in the Republic of Vietnam. The AMC contacted the Air Force Historical Research Agency in order to ascertain whether members of the 56th Security Police Squadron (SPS), 56th Combat Support Group (CGS), 56th Special Operations Wing (SOW) out of Nakhon Phanom RFTAFB, Thailand (PACAF) was ever sent to TDY to South Vietnam any time between July 24, 1970, to approximately January 26, 1971, to perform search and rescue operations. An archivist responded in December 2011 and indicated that he had carefully reviewed the official unit histories of the 56th Security Police Squadron for the time period of July 1970 through July 1971 (they submitted monthly reports). He indicated that there was no mention of sending anyone to the Republic of Vietnam. The archivist also pointed out that security policemen were not used for search and rescue missions-pararescue and helicopter crews of the Aerospace Rescue and Recovery Service, as well as various pilots fixed wing fighter-bomber, as well as various aircrews on aircraft in the vicinity were used for communication relay aircraft, but NOT security policemen. The 56th Security Police Squadron histories focused on the training, building defensive facilities at the base, conduct of the Thai Guards employed, and the local insurgent activities around the base area. No mention of any trips of anyone outside of the country of Thailand. He concluded by saying that he regretted that the documented facts do not support the Veteran's contention. In December 2011 the Appeals Management Center (AMC) issued a Memorandum and indicated that after a thorough review of the evidence submitted to substantiate the contention of exposure to herbicides, they had determined that the claim to such exposure could not be corroborated. The AMC stated that all procedures to obtain this information from the Veteran were properly followed and that all efforts to obtain the information have been exhausted and further attempts would be futile. The AMC explained that due to the JSRRC and AFHRA both being unable to confirm that the Veteran, or his unit, was sent TDY from Thailand to RVN to conduct search and rescue operations during the Vietnam War, the AMC has determined that there is no further information available to obtain that would corroborate the claim of tactical herbicide exposure. The appellant's representative refers to the Veteran's receipt of the Air Force Vietnam Campaign Medal as proof of service in the Republic of Vietnam, however receipt of this medal is not conclusive proof that the Veteran ever set foot in the Republic of Vietnam, but could also indicate that the Veteran served outside the geographical limits of South Vietnam and contributed direct combat support to the RVN Armed Forces for an aggregate of six months." See Manual of Military Decorations and Awards, C7.5.1.6.2. (Department of Defense Manual 1348.33- M, September 1996); see also VAOPGCPREC 7-93 (holding that the term "service in Vietnam" does not include service of a Vietnam-era veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace). Additionally, the Veteran's receipt of the Armed Forces Commendation Medal coincides with the completion of his tour of duty in Thailand. The Board is not disputing the Veteran's contribution to the war effort as a valued member of the U.S. Air Force stationed in Thailand, which these awards clearly indicate, but the issue for the purpose of presumptive service connection is whether the Veteran was present on the ground within the boundaries of the Republic of Vietnam. See VAOPGCPREC 27-97. To this end, the only evidence of record is the appellant's statements that the Veteran told her that he had served in the Republic of Vietnam. The record does not contain any corroboration of this claim. As the Veteran does not have the requisite service in Vietnam during the Vietnam Era, the statutory presumption is not for application in this case. That notwithstanding, a claimant is not precluded from establishing service connection for a disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this context, the Board observes that the Compensation and Pension (C&P) Service has determined that a special consideration on herbicide exposure on a factual basis should be extend to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q), provides that herbicide exposure may be conceded on a direct/facts-found basis if the Veteran served with the U.S. Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and as a an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise served near the air base perimeters as shown by evidence of MOS, daily work duties, performance evaluation reports, or other credible evidence. In considering the Veteran's MOS of a security police supervisor, and that he served in the U.S. Air Force in Thailand from July 1970 to January 1971, the Board resolves all doubt in favor of the appellant and find that the Veteran worked on or near the Nakhon Phanom RTAFB air base perimeter. Hence, the Veteran's in-service exposure to herbicide agents may be conceded on a factual basis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q) (2010). It has been shown by competent medical evidence that the Veteran was diagnosed with lung cancer following his retirement from military service. The earliest evidence of the Veteran's lung cancer was first documented in 1990. After a careful review of the record and resolving all reasonable doubt in favor of the appellant, the Board finds that a service-connected disability (i.e., lung cancer) did cause or contribute substantially or materially to cause the Veteran's death. In this regard, the Board initially notes that herbicide exposure has been conceded on a factual basis. The Board also notes the Secretary's discussion of the findings by the National Academy of Sciences (NAS) based on its extensive review of the sound medical and scientific studies and reports, which contain a great deal of medical and scientific data of many diseases, including lung cancer, found to have a positive association to the exposure to herbicide agents. See 59 Fed. Reg. 29723 (June 9, 1994). In addition, the competent medical evidence of record reflects that the Veteran had been diagnosed with lung cancer. Finally, the Certificate of Death establishes that the cause of the Veteran's death was cancer of the lung, metastatic. Accordingly, the Board finds it reasonable to conclude that the record evidence, together with the findings by the NAS, supports a casual relationship between the Veteran's in-service exposure to herbicide agents and the subsequent development of lung cancer, which did cause, or contribute substantially or materially to cause, the Veteran's death. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is granted. ORDER Entitlement to service connection for the cause of the Veteran's death, for purposes of receiving DIC, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs