Citation Nr: 1333063 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-34 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from March 1959 to September 1980 and died in August 2005. The appellant, who is the Veteran's widow, initially appealed an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2011, the appellant testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In an April 2011 decision, the Board denied the appellant's claim. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (court). In a February 2013 Memorandum Decision, the court vacated the Board's decision and remanded the matter back to the Board for action consistent with the court's decision. A copy of the court's Memorandum Decision is in the claims file. FINDING OF FACT Resolving all reasonable doubt in the appellant's favor, the Veteran's death from lung cancer was related to his active military service, including through exposure to herbicides coincident with his service in Thailand. CONCLUSION OF LAW The cause of the Veteran's death was related to an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5103, 5103A, 5107 (West 2003 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As the Board's decision to grant service connection for the cause of the Veteran's death herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. II. Factual Background and Legal Analysis The appellant seeks service connection for the cause of the Veteran's death that she maintains is due to his exposure to Agent Orange while in the United States Air Force. She noted that he was a food services accounting manager, responsible for multiple sites on base, including bases in Thailand, and that storage units were at the base periphery where herbicide sprays were used. See Board hearing transcript at page 6. The appellant stated that the Veteran had a history of smoking cigarettes and was treated for angina but was a healthy man who never mentioned having respiratory problems in service. Id. at 11 and 13. According to the evidence of record, the Veteran died in August 2005 at the age of 63. The August 2005 death certificate indicates that the immediate cause of the Veteran's death was an adenocarcinoma of the lung, metastatic. An autopsy was not performed. During the Veteran's lifetime, he was service-connected for degenerative arthritis of the dorsal and lumbar spine, evaluated as 20 percent disabling; cholecystectomy, evaluated as 10 percent disabling; and a prominent left wrist bone and fracture of the left thumb, assigned a noncompensable disability evaluation. The Veteran was diagnosed with lung cancer mid-2005. See May 2005 VA orthopedic examination report and August 2005 VA discharge summary. As noted, he died in August 2005. Under 38 U.S.C.A. §§ 1110 and 1131; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Case law has established that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Certain chronic diseases, including malignant tumors, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This is also a direct service connection theory of entitlement. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death that it combined to cause death, or aided or lent assistance to the production of death. 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 C.F.R. § 3.312(c)(1). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). 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. In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(3), (4). In this case, the appellant contends, in pertinent part, that the Veteran was exposed to Agent Orange during his active military service, including in Thailand, that caused or contributed to his post service diagnosis of, and death from, lung cancer. If a veteran was exposed to a herbicide agent during active military, naval, or air service, specified diseases, including respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), shall be service connected even though there is no record of such disease during service, provided further that the disease is manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The central issue in this case is whether the Veteran was exposed to Agent Orange during his service. A veteran who, during active service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to herbicides during that service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307. Here, the appellant does not currently contend (and the record does not suggest) that the Veteran had service in Vietnam. As such, a presumption of herbicide exposure is not warranted. 38 C.F.R. §§ 3.307(a)(6)(iii). Rather, it is contended that the Veteran was exposed to herbicides during service at Nakhon Phanom (NKP) Royal Thai Air Force Base (RTAFB), and Korat RTAFB, in Thailand. The appellant asserts that herbicides were sprayed around the perimeter at NKP and Korat RTAFBs. Service records confirm that the Veteran was stationed at NKP from July 1971 to July 1972, as a cook and service supply clerk. A Chronology of Duty Assignments in the claims file appears to indicate that he served at Korat RTAFB from June 1974 to May 1975, as a food service supervisor. The evidence of record is not totally unequivocal that the Veteran was, in fact, actually exposed to Agent Orange during his service. Nonetheless, the Board finds that the evidence is at least in a state of relative equipoise in showing that it is as likely as not that he was exposed to Agent Orange while at NKP and Korat RTAFBs. During her February 2011 Board hearing, the appellant offered testimony to the effect that the Veteran was a delivery driver and taught children baseball or was a coach on a team in the fields for children playing ball in service. See Board hearing transcript at page 6. The appellant noted the Veteran's work in shipment supervision and that some base maps placed storage units on the base perimeter where he might have been exposed to Agent Orange. Id. The Veteran's service records verify his service at NKP and Korat RTAFBs, and show that he was active in sports including baseball. See e.g., July 1978 performance evaluation noting that the Veteran was "very active in the local community" and "coach[ed] little league teams on base". A map of the Korat Air Force Base apparently from 1973 (according to an August 6, 2013 letter from the appellant's attorney, at page 2), and submitted by the appellant, shows that the softball field was close to the base perimeter. Thus, concerning the appellant's claim based on the Veteran's herbicide exposure in Thailand, the VA Compensation Service has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases. See M21-1MR, IV.ii.2.C.10.q. See also undated VA "Memorandum for Record" regarding "Herbicide use in Thailand during the Vietnam era" in the claims file. Specifically, veterans who served on certain military installations in Thailand during the Vietnam era, including Korat and NKP, and whose work assignments or other duties required them to be in and around the perimeter areas of the airbases are presumed to have been exposed to herbicides. The Board finds that, in the aggregate, the appellant's credible accounts of the Veteran's statements concerning his routine exposure to the perimeter areas of the airbases in Thailand are reasonable and consistent with his duty assignments as a cook and food services supply clerk, food service supervisor, and his volunteer activities as a little league baseball coach. Therefore, the Board finds that it is at least as likely as not that the Veteran was exposed to herbicides in service. Thus, resolving all reasonable doubt in his favor, the Board finds that service connection for the cause of the Veteran's death from lung cancer is warranted. 38 U.S.C.A. §§ 1310, 5107; 38 C.F.R. § 3.312. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs