Citation Nr: 1135233 Decision Date: 09/20/11 Archive Date: 09/23/11 DOCKET NO. 03-29 191A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Diliberto, Associate Counsel INTRODUCTION The Veteran had active service from November 1968 to November 1972 and from January 1973 to January 1990. He died in May 2002. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, that denied the benefit sought on appeal. The appellant appealed that decision and the case was referred to the Board for appellate review. In February 2005, September 2009 and June 2010 the Board remanded the Veteran's claim for further development. Full compliance with that Board's June 2010 remand orders was not accomplished. However, in light of the favorable determination with respect to that issue the Board finds that further remand is not necessary. FINDINGS OF FACT 1. The official death certificate shows that the Veteran died in May 2002 and that the immediate cause of death was multiple myeloma. 2. The Veteran was exposed to herbicides while serving in Thailand at U-Tapao Air Base between October 1973 and October 1974. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the criteria for establishment of service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.302, 3.303, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the appellant's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was met by way of letters from the RO to the appellant dated July 2002, February 2005 and June 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim of entitlement to service connection for cause of death, section 5103(a) notice must include: (1) a statement of the conditions, if any, for which the Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The June 2010 notice provided did complied with these requirements. However, any other notice errors are harmless given that the appellant's claim is being granted. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the appellant and her representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and have not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the appellant in the adjudication of her appeal. Therefore, the Board finds that the RO has satisfied the duty to notify and the duty to assist and will proceed to the merits of the appellant's appeal. The appellant has claimed entitlement to service connection for the cause of the Veteran's death. To establish service connection for the cause of a veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of 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 or be etiologically related thereto. 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 there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effect 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. 38 C.F.R. § 3.312(c)(3). Further, 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. 38 C.F.R. § 3.312(c)(4). The Veteran died in May 2002 from what his Certificate of Death described as "multiple myeloma." The appellant contends that the Veteran's multiple myeloma was due to his period of service. In the case of a veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, VA regulations provide that he 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 C.F.R. § 3.307(a)(6)(iii). The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e). The record does not demonstrate that the Veteran served in the Republic of Vietnam during his military service. The record reveals that the Veteran was awarded the Vietnam Service Medical, the Republic of Vietnam Gallantry Cross with Palm and the Republic of Vietnam Campaign Medal. Nevertheless, despite the appellant's representative's assertions, receipt of these medals is not conclusive evidence of service in Vietnam. M21-1, Part III, Para. 4.24(e)(1). Thus, in the absence of evidence that the Veteran served in Vietnam, the automatic presumption of service connection afforded for specific disease associated with exposure to herbicides is not for application. The Board does note that service connection may still be granted for a disease associated with herbicide exposure if such exposure can be otherwise established. In this regard, the appellant has alleged that exposure to herbicides occurred while the Veteran was stationed in Thailand. In such cases VA must follow the evidentiary development procedures located in the VA Adjudication Procedure Manual (Manual of M21-1MR) that are applicable to the Veteran's claim. See Campbell v. Gober, 14 Vet. App. 142, 144 (2000); Patton v. West, 12 Vet. App. 272, 282 (1999). Recently, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q) was adopted for application when the Veteran alleges exposure to herbicides in Thailand. That provision states that if a Veteran served with the U.S. Air Force in Thailand during the Vietnam Era at one of several Royal Thai Air Force Bases, and his or her duties involved being near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports or other credible evidence, herbicide exposure is to be conceded on a direct basis. In this case, the Veteran's service personnel records show that he served in Thailand from October 1973 to October 1974 at U-Tapao Air Base. Moreover, the record indicates that the Veteran worked as a Weapons Release Shift Supervisor on B-52s. His performance evaluation reports indicate that his duties involved being near the air base perimeter. Accordingly, the Board concedes that the Veteran was exposed to herbicides during service. As such, and because the medical evidence reflects that the Veteran's cause of death was multiple myeloma, the Board finds that service connection is warranted for the cause of the Veteran's death. ORDER Service connection for the cause of the Veteran's death is established. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs