Citation Nr: 1316631 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 10-13 748A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South 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 K.S. Hughes, Counsel INTRODUCTION The Veteran had periods of active service totaling approximately 20 years ending with his retirement in April 1990. The Veteran died in November 2006 and his widow is the appellant in this matter. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing in December 2010, and a transcript of this hearing is of record. Additional evidence consisting of an April 2013 response from the Defense Finance and Accounting Service (DFAS) was submitted following the issuance of the January 2013 supplemental statement of the case. This evidence was not accompanied by a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. However, given the favorable determination herein, the Board finds that a remand for initial RO consideration is not required prior to addressing her claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in November 2006. The Certificate of Death lists the immediate cause of death as respiratory failure due to, or as a consequence of, carcinoma of the lung (lung cancer). 2. It is reasonably shown that the Veteran served on land in the Republic of Vietnam during the Vietnam era; it is presumed he was exposed to Agent Orange by virtue of such service. 3. It is presumed that the Veteran's lung cancer was due to exposure to herbicides in Vietnam. CONCLUSION OF LAW The Veteran's death was caused by a disability incurred in his active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that the Veteran served in Vietnam and died of an Agent Orange presumptive illness. Dependency and Indemnity Compensation is warranted when a veteran dies due to a service connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection is warranted for disability due to disease or injury that was incurred or aggravated in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain diseases (among them respiratory cancers (cancer of the lung, bronchus, larynx, or trachea)) may be service-connected on a presumptive basis (as due to exposure to herbicides) if manifested in a veteran who served in Vietnam during the Vietnam Era. 38 U.S.C.A. §§ 1113, 1116; 38 C.F.R. § 3.309(e). Veterans who, during active 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 to an herbicide agent [to include Agent Orange], unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. Service in Vietnam includes service in the waters offshore, inland ("brown water") waterways or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313; see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (upholding VA's interpretation that service in Vietnam requires that a veteran have set "foot-on-land" in Vietnam). The Veteran's death certificate shows that he died from respiratory failure due to carcinoma of the lung. That fact is not in dispute. The Veteran's DD Form 214 and service records do not show that he served in Vietnam. Consequently, his service in Vietnam (and the appellant's entitlement to consideration of the instant claim under 38 U.S.C.A. § 1116) must be corroborated by other means. The Veteran's service personnel records show he served in Thailand from December 1971 to December 1972 in the United States Air Force with the 432d Field Maintenance Squadron. The appellant has testified that, during this period, the Veteran was sent from Thailand to Vietnam to repair an aircraft. As support for her contention, in July 2011, she submitted a letter from the Veteran dated in May 1972 in which he refers to TDY in Vietnam for six days during the last week of April 1972 that involved changing an oil tank on an engine. In August 2012, the RO made a Formal Finding of lack of information required to corroborate the allegation of the Veteran's exposure to herbicides in Vietnam. Notably, although it is noted that all efforts to obtain the needed information have been exhausted, this effort consisted of requesting verification of the Veteran's exposure from the Air Force Historical Research Agency. No other sources were contacted. [Notably, the RO had also made an earlier, July 2009, formal finding regarding lack of information to verify exposure to Agent Orange or service in Vietnam. This determination was based on responses from the National Personnel Records Center (NPRC).] Regardless, in April 2013, the appellant submitted an April 2013 response from the Supervisor, Operational Support Branch, Operational Control Division, of DFAS which certifies that, based on a review of the Veteran's 1972 Master Military Pay Account (MMPA) and the reviewer's over 39 years of Military Pay experience, the Veteran served on Temporary Assignment within the Republic of Vietnam in April or May 1972. Accordingly, resolving reasonable doubt in the appellant's favor, the Board finds that it is reasonably shown that the Veteran indeed served in Vietnam during the Vietnam era. Hence; it is presumed he was exposed to Agent Orange by virtue of such service In summary, the record shows that the Veteran served in Vietnam during the Vietnam Era and died due to a disease (lung cancer) which may be service connected on a presumptive basis as due to exposure to herbicides in Vietnam. All of the requirements for establishing service connection for the cause of his death are met. Service connection for the cause of his death is warranted. There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the appellant as a result of any VCAA deficiency in view of the fact that the full benefit sought by the appellant with respect to this issue is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The RO will assign an effective date in the course of implementing this grant of service connection, and the appellant will have the opportunity to initiate an appeal from this 'downstream' issue if she disagrees with the determination which will be made by the RO in giving effect to the Board's grant of service connection. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). ORDER Service connection for the cause of the Veteran's death is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs