Citation Nr: 1336552 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 07-37 850A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from June 1962 to November 1973. The Veteran died in July 2006. The appellant is the Veteran's surviving spouse. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board Remanded the appeal in October 2011. FINDINGS OF FACT 1. The Veteran served in Thailand during the Vietnam War, but his service has not been shown to have involved activity around the perimeter of the Air Force Base at which he was stationed. 2. The accuracy of a statement provided by the Veteran to his spouse prior to his death indicating that he landed in Vietnam on route to Thailand cannot be corroborated. 3. The evidence fails to establish that it is as likely as not that the Veteran had actual exposure to herbicides or may be presumed to have been exposed to herbicides. 4. The Veteran's death in July 2006 was due to small cell lung cancer which metastasized. 5. At the time of the Veteran's death, service connection had been established for arthritis of the left shoulder and for residuals of excision of a neuroma, right foot. 6. The small cell lung cancer which caused the Veteran's death is not attributable to his active military service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met, nor may the cause of his death be presumed to be service-connected. 38 U.S.C.A. §§ 1101, 1110, 1116, 1310 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks service connection for the cause of the Veteran's death. She contends that a presumption that the Veteran was exposed to Agent Orange is applicable, either based on his service in Thailand, or based on an itinerary that included a landing in Vietnam on his way to Thailand. She contends that the respiratory cancer which caused the Veteran's death may be presumed due to the Veteran's presumed or actual exposure to herbicides. Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform a claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, section 5103(a) notice must be tailored to the claim. The notice should include (1) a statement of the disabilities, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). A letter providing this notice was sent to the appellant in July 2012, after the Board's October 2011 Remand. Additionally, the appellant's submissions reflect that she was aware of the types of evidence she could submit that might be relevant to substantiate her contention that the Veteran had actual or presumptive exposure to herbicides. Neither the appellant nor her representative have suggested that she has in any way been prejudiced with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). As to VA's duty to assist, all available relevant records appear to have been obtained. Service treatment records are associated with the claims file, as well as personnel and administrative records. The appellant has provided a statement indicating that she attempted to obtain additional evidence from the service department and was advised that no records of flight patterns, such as the Veteran's route to Thailand, were kept. In compliance with the Board's 2011 Remand, development of the claim as set forth in VA Fast Letter 09-20 and current procedures for claims of Veterans with service in Thailand was conducted. The Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that VA medical opinion was not obtained in this case to address whether the Veteran's lung cancer was otherwise the result of his military service. The appellant has indicated that the Veteran's providers were unable to determine a cause for the Veteran's cancer. The record in this case is negative for any indication, other than through the operation of a statutory presumption, that the Veteran's lung cancer, diagnosed more than three decades after he separated from service, was the result of his military service. The critical question at this juncture of the case is whether the Veteran was exposed to herbicides in service, which is not a question that relies on medical expertise. In this case, since the probative evidence does not establish that it is at least as likely as not that the Veteran had actual exposure or presumptive exposure to herbicides, and the appellant has stated that the cause of the Veteran's cancer was otherwise not known, further medical opinion is not required. 38 U.S.C.A. § 5103A(a)(applicable to DIC claims). See DeLaRosa v. Peake, 515 F. 3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). If a chronic disorder, such as diabetes mellitus, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Malignant tumors are defined as chronic diseases. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d). Diseases associated with herbicide exposure for purposes of the presumption include respiratory cancers. 38 C.F.R. § 3.309(e). A Veteran who, during active military, naval or air service, served in Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, 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). "Service in Vietnam" means actual service in the country of Vietnam from January 9, 1962 to May 7, 1975, and includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Facts and Analysis The Veteran's DD-214 notes that he served in Thailand for 301 days. Service treatment records demonstrate that in January 1973 and February 1973, and July 1973 and August 1973, the Veteran was provided medical treatment at Ubon Airfield, Thailand. Available service personnel records reflect that the Veteran was stationed at Ubon Airfield at time of performance evaluations in July 1973 and October 1973. The July 1973 performance record shows that the evaluation was performed by the 1982 Communications Squadron. The October 1973 evaluation, also showing the Veteran as assigned to the 1982 Communications Squadron, was conducted for purposes of the Veteran's separation. The evidence clearly shows that the Veteran was assigned to duty in Thailand at Ubon Air Force Base. These records reflect that the Veteran was a computer technician. The records disclose that the Veteran trained Thai personnel to perform computer maintenance. The appellant contends that the computers the Veteran performed service on were installed in airplanes and that the Veteran had actual exposure to herbicides because he worked on airplanes that were used to spray defoliants or that flew through areas where herbicides were used. If a veteran served on certain air bases in Thailand as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then VA policy is to acknowledge herbicide exposure on a facts found or direct basis, if the Veteran provides a statement that actual duties required him/her to be on the perimeter of the base. The Veteran's military occupation as a computer technician is not among the specialties recognized as requiring perimeter duty or patrol. The Veteran did not provide a statement prior to his death to indicate that his actual duties required him to be on the perimeter of the base. The established guidelines for development in cases alleging exposure to herbicides do not authorize the Board to determine that maintenance functions in and round aircraft, without other exposure factors, establishes actual herbicide exposure. Thus, the evidence of record is against a finding that the Veteran was exposed to herbicides on a direct basis during his service in Thailand. The evidence of record provides no indication in the service personnel records or service treatment records that the Veteran ever set foot in Vietnam. As the Veteran was not assigned to service in Vietnam, the governing regulations place the burden on the appellant to establish that the Veteran did set foot in Vietnam. There is no record of the route of the Veteran's itinerary to or from Thailand, and the Veteran is unavailable to provide any details that could allow further verification of his assertion that he set foot in Vietnam. The appellant has specifically acknowledged that the service department has indicted that no records which might show what flight(s) the Veteran took were kept. The Veteran submitted claims for service connection for hearing loss, tinnitus, and joint disorders, among other claims, in 2005, some 35 years after his service separation, but never actually claimed service in Vietnam or exposure to herbicides. In the June 2005 claim submitted by the Veteran prior to his death, the Veteran denied that he was exposed to Agent Orange. Question 5a of VA Form 21-526, Part B, Section II, asks, "Were you exposed to herbicides?" The Veteran checked the "No" response. In response to question 5c, "In what country were you exposed?" the Veteran wrote "n/a," which the Board interprets as "not applicable." Thus, the Veteran did not provide any written contention prior to his death that he was exposed to herbicides or that he was physically present in Vietnam. As such, the entirety of the appellant's claim rests on the accuracy of the appellant's recollections of information that the Veteran verbally provided to the appellant during the Veteran's terminal illness. The Board does not doubt the credibility of the appellant's statement that the Veteran told her he landed in Vietnam. However, the Board notes that the accuracy of the Veteran's recollection cannot be corroborated. The Veteran's statement was not recorded or written, so it is not possible to determine whether the Veteran was certain that he landed in Vietnam, or whether he recalled only that it was possible that he was on a plane that landed in Vietnam. The appellant has not indicated that the Veteran described the type of plane he was transported on, when it landed in Vietnam, or where else the plane landed, or other details which might have allowed verification that the Veteran landed in Vietnam during his service. Without more specific information about the route, type of plane, and other details, it is not possible for the service department or other agency, such as the JSRRC, to verify that the Veteran landed in Vietnam or research that contention. The appellant married the Veteran after his service discharge, and thus cannot provide details from her own recollection. That is, she has no firsthand knowledge of the Veteran setting foot in Vietnam, and she did not witness it with her own eyes. In the absence of any method of verification of the accuracy of the veteran's statement to the appellant before his death or the appellant's recollection of that statement, the evidence of record does not establish that it is at least as likely as not that the Veteran was physically present in Vietnam. The evidence regarding the Veteran's service in Thailand is adverse to a finding that was exposed to herbicides while stationed in Thailand. The presumption of exposure to herbicides is not applicable in this case. While no presumption of herbicide exposure has been satisfied, the appellant is nevertheless entitled to show that the Veteran was actually exposed to herbicides while in service. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). However, in this case, the appellant has stated that she has no allegation that the Veteran was exposed to herbicides other than the Veteran's assignment to Thailand, his duties around aircraft, and his landing in Vietnam. Those allegations are addressed above, and there is no evidence of direct exposure that has not been considered in determining whether a presumption of exposure or presumption of actual exposure is applicable. Prior to the Veteran's death, he was awarded service connection for arthritis of the left shoulder and for residuals of excision of a Morton's neuroma from the right foot. To establish service connection for the cause of a veteran's death, the evidence must show that a service-connected disability was either the principal (primary) or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) cause of death when such disability-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). It is undisputed that the Veteran's death was caused by small cell lung cancer, as this is clearly set forth on the Veteran's death certificate. The appellant does not allege, and the record does not raise, any indication or contention that the Veteran's service-connected left shoulder or right foot disabilities caused or contributed materially or substantially to his death. The Board has considered each legal theory which might entitle the appellant to service connection for the cause of the Veteran's death. The preponderance of the evidence is against each theory. 38 U.S.C.A. § 5107(b). The claim must be denied. ORDER The appeal for service connection for the cause of the Veteran's death is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs