Citation Nr: 1200596 Decision Date: 01/09/12 Archive Date: 01/20/12 DOCKET NO. 08-21 21768 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to February 1969. He died on August [redacted], 2005. The appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in Winston-Salem, North Carolina. The claimant testified before the undersigned Acting Veterans Law Judge at a March 2011 video conference hearing. FINDINGS OF FACT 1. The appellant is the surviving spouse of the Veteran. 2. It is at least as likely as not that the Veteran served along the demilitarized zone (DMZ) in Korea during the period between April 1, 1968 and August 31, 1971. 3. The Veteran died of multiple system atrophy (MSA) on August [redacted], 2005. 4. MSA is sufficiently similar to Parkinson's disease so as to be regarded as the same disease for purposes of applying the herbicide presumption set forth in 38 C.F.R. §§ 3.307, 3.309. CONCLUSION OF LAW It is at least as likely as not that the Veteran's death was due to a disease or injury that was incurred during his service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board considered the regulations pertaining to the VA's statutory duty to assist the claimant with the development of facts pertinent to his claim. Given the favorable action taken herein below, the Board finds that no further assistance in developing the facts pertinent to the appellant's claims is required at this time. Service Connection for the Cause of the Veteran's Death The claimant, who is the surviving spouse of the Veteran, contends that her husband died due to a disease or injury incurred in military service. An autopsy report dated in September 2005 indicates that the Veteran died on August [redacted], 2005 as a result of MSA. Service connection may be granted for the cause of the Veteran's death if a disorder 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. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death; rather, it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In this case, the appellant contends that her husband served along the DMZ while he was in Korea and that he was exposed to herbicides there. She contends that MSA is so similar to Parkinson's disease that they should be considered the same entity for purposes of applying the presumption of service connection for herbicide exposed Veterans. If a Veteran was exposed to a herbicide agent then certain diseases, including Parkinson's disease, will be considered service connected even though there is no record of such disease in service. MSA is not listed among the diseases subject to presumptive service connection. A Veteran who served in active military, naval, or air service in Vietnam during the Vietnam era is presumed to have been exposed to a herbicide agent during such service, unless there is affirmative evidence that the Veteran was not exposed to any such agent during that service. Service in Vietnam includes service in the waters offshore Vietnam and service in other locations if the conditions of service required the Veteran to perform duty in, or visit, Vietnam. 38 U.S.C.A. § 1116(f), 38 C.F.R. § 3.307(a)(6)(iii). However, service in Vietnam does not include service that took place exclusively in the territorial waters offshore Vietnam, if the Veteran never set foot on land there. See Haas v. Peake, 544 F.3d 1306, 1308-1309 (Fed. Cir. 2008), cert. den. 129 S.Ct. 1002 (2009). Additionally, the presumption of herbicide exposure applies to Veterans who served in or near the Korean DMZ between April 1, 1968 and August 31, 1971 in an area in which herbicides are known to have been to have been applied during that period. 38 C.F.R. § 3.307(a)(6)(iv). The Veteran's DD214 shows that he served in the Army as a medical specialist from July 1967 to February 1969. He had slightly more than 1 year of foreign service in Korea. Service personnel records show that the Veteran was assigned to the 7th Medical Battalion, 7th Infantry division while he was in Korea. His permanent station or location was at Camp Casey, Korea. Camp Casey is approximately 15 miles from the DMZ. The Department of Defense (DOD) maintains a list of units that it identified as operating in or near the DMZ during the qualifying time period. This list does not indicate that the Veteran's unit was in or near the DMZ. However, it indicates that certain other units from the 7th Infantry Division did operate in that region. A lay statement from W.E.S. stated that he was in the 1st Battalion, 73rd Armor Division, which is a unit that operated along the DMZ during the requisite time period. He indicated that a medic from the 7th Medical Battalion would usually accompany the unit to Camp Beaver during exercises along the DMZ. At the March 2011 Board hearing, the claimant credibly testified that her husband told her that he served along the DMZ. In this case, the Veteran's service records are unclear as to whether he actually served along the DMZ. However, given the proximity of Camp Casey to the DMZ, it is plausible that the Veteran may have travelled to the DMZ as part of his duties. This lends credence to the claimant's testimony that the Veteran told her that he served there. The evidence is in equipoise concerning whether the Veteran served along the DMZ, so giving the claimant the benefit of the doubt, the Board will conclude that the Veteran served along the DMZ and is entitled to a presumption of herbicide exposure. As previously noted, MSA is not a disease to which the presumption specifically applies. 38 C.F.R. § 3.309. However, Parkinson's disease is. An October 2011 letter from a private physician, Dr. R.D.F., stated that. "[t]he pathology of MSA includes inclusions of alpha synuclein in various regions of the central and less often peripheral nervous system. These are similar to inclusions that one finds in Parkinson's disease.... While we do not know the exact cause of MSA, the presence of cases that often overlap with Parkinson's disease and similar inclusions bodies in the brain provide some evidence for a link between MSA and [Parkinson's disease]." The Board obtained a expert medical opinion from Dr. S.A.W. concerning the relationship between MSA and Parkinson's disease. Dr. S.A.W. stated that MSA is "closely related" to Parkinson's disease and that the disease process is also very similar. The diseases share many clinical features. A patient with MSA demonstrates many of the cardinal features of Parkinson's disease. However, the patient with MSA has additional symptoms. Pathologically, the diseases are similar. They share a common pathogenic lesion composed of aggregates of insoluble synuclein proteins in neurons and glial cells. She concluded the diseases are so closely related that "the two diseases should be considered essentially the same for the purpose of applying the herbicide presumption." Based on these medical opinions, the Board will apply the presumption of service connection to the Veteran's MSA. Thus, service connection for the cause of the Veteran's death is granted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs