Citation Nr: 1330269 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-32 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert Brown, Jr., Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from December 1961 to September 1969. The Veteran died in January 2007; the appellant is the Veteran's surviving spouse. The appellant testified during a videoconference Board hearing before the undersigned in June 2013. A copy of the transcript is of record. In conjunction with the hearing, the appellant submitted additional evidence accompanied by a waiver of RO consideration. The Board notes that service connection for the cause of the Veteran's death was denied in a July 2007 rating decision. The appellant did not appeal that decision, nor was new and material evidence received within one year. Thus, the rating decision became final. See 38 C.F.R. § 20.1103 (2012). As such, the Veteran would typically be required to submit new and material evidence to reopen her claim for service connection for the cause of the Veteran's death. See 38 C.F.R. § 3.156(a) (2012). However, in July 2012, the Veteran's service personnel records were obtained, which support temporary duty assignments in Southeast Asia. In such an instance, where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. See 38 C.F.R. § 3.156(c). The Board will therefore proceed with the claim for entitlement to service connection for the cause of the Veteran's death on a merits consideration, as opposed to a petition to reopen the claim based on new and material evidence. 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. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran set foot in Vietnam, and exposure to herbicides is presumed. 2. The Veteran died in January 2007. According to the death certificate of record, the Veteran's immediate cause of death was myocardial infarction. 3. The Veteran's myocardial infarction causing death in January 2007 is presumed to be due to his presumed herbicide exposure during his Vietnam service. CONCLUSION OF LAW A disability incurred in active service caused the Veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board has granted entitlement to service connection for the cause of the Veteran's death, which constitutes a complete grant of the claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). To establish entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability either incurred in or aggravated by his military service, or which was proximately due to, the result of, or aggravated by a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 3.312 (2013). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death. 38 C.F.R. § 3.312(c). A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202 -53,216, 53,205 (Aug. 31, 2010). Subsequent to the Veteran's January 2007 death, VA amended 38 C.F.R. § 3.309(e) to include ischemic heart disease. 75 Fed. Reg. 53202 (August 31, 2010). The pertinent part of that amendment added the following to § 3.309(e): "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)." 75 Fed. Reg. 53202, 53216 (August 31, 2010). This amended rule applies to claims received by VA on or after August 31, 2010, and to claims pending before VA on that date. 75 Fed. Reg. 53202 (August 31, 2010). Id. The appellant's current claim was received by VA after that date. Upon weighing the evidence, if there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran died in January 2007, and the Veteran's surviving spouse seeks service connection for the cause of the Veteran's death. She asserts that the Veteran served on temporary duty (TDY) in Vietnam and that his death was related to exposure to herbicides therein. Specifically, during her June 2013 hearing, she asserted that the Veteran served on TDY to Vietnam sometime in August 1964 and again sometime between May 1968 and 1969. She further contends that the Veteran was exposed to herbicides while serving at Eglin Air Force Base. The Veteran was not service connected for any disabilities at the time of his January 2007 death. According to the Veteran's death certificate, the immediate and only cause of death was myocardial infarction. As noted, myocardial infarction is presumptively related to herbicide exposure. 38 C.F.R. §§ 3.307, 3.309(e). Thus, service connection for the cause of the Veteran's death may be established if the evidence shows that the Veteran was exposed to herbicides during his service. Service personnel records show that the Veteran served in the Philippines from approximately June 1964 to January 1966 and December 1966 to June 1968. They further show that the Veteran served TDY abroad, including in Thailand sometime during the period between October 1966 and October 1967. Of note, a performance evaluation report for the period from June 1964 to June 1965 indicates that, while stationed in the Philippines, the Veteran was "assigned TDY to an operational radar site in Southeast Asia." That record further notes that the Veteran was chosen for "two special missions" during that period. Those records also confirm that he served a Eglin Air Force Base from approximately February 1966 to December 1966. Materials submitted by the appellant from the U.S. Department of Defense reveal that Eglin Air Force Base was the site of testing of herbicide agents Orange, Purple, White, and Blue. Those documents reveal that between March 1962 and January 1971, Agent Orange, Agent Purple, and Agent Blue were tested at Eglin Air Force Base in a test area of less than one square mile. Post-service evidence shows that in April and May 1995, in conjunction with an unrelated claim for VA benefits, the Veteran reported multiple periods of TDY to Vietnam while assigned to the 5th TAC (tactical air control) group. He reported service in "Phu Qua," Vietnam, as well as treatment at a dispensary there sometime around February 1968 or 1969. He also reported serving on kitchen patrol in August 1964 in Tan Son Nhut, Vietnam. Additionally, during a July 1995 VA examination, the Veteran reported four months of TDY service in Vietnam in 1965 while serving in the Philippines, and four months of TDY service in Vietnam between 1966 and 1967 while serving in the Philippines. He also reported some other trips "in and out of Vietnam" transporting and setting up radar equipment. The Board finds that the post-service accounts of the Veteran having served TDY in Vietnam in 1964 to set up radar equipment are both competent and credible. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his or her personal knowledge and experience); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (finding that the Board is within its province to weigh lay evidence and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection). Those reports offered by the Veteran in 1995 and by the appellant in June 2013 are largely consistent with the performance evaluation report for the period from June 1964 to June 1965 documenting that the Veteran was assigned TDY to Southeast Asia to an operational radar site and was selected for two special missions during that period. While the Veteran's 1995 reports of Vietnam service were made in support of an unrelated claim for VA benefits, the Board finds them to be particularly probative because they were not offered for the purpose of establishing service in Vietnam or herbicide exposure. Given the foregoing evidence, the Board finds it reasonable that the Veteran set foot in Vietnam. There is nothing to refute the statements of the appellant or, prior to his death, the Veteran, and those statements are considered particularly credible in light of the information documented in the service personnel records. See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted) (noting that "definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as the quality or power of inspiring belief. . . . Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence."). Therefore, the Board concludes that the Veteran set foot in Vietnam during the Vietnam era, and is therefore, presumed to have been exposed to herbicides. Because the Veteran's fatal myocardial infarction is presumptively associated with exposure to herbicides, service connection for the cause of the Veteran's death is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.307, 3.309. ORDER Entitlement to service connection for cause of the Veteran's death is granted. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs