Citation Nr: 1337064 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 12-14 900 ) 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: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and K.S. ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION 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). The Veteran served on active duty from March 1955 to November 1975. The appellant is his surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, that denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The case is currently under the jurisdiction of the Muskogee, Oklahoma, RO. In July 2013, the appellant testified before the Board by videoconference; a transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran died in March 2011. The certificate of death shows that his primary cause of death was prostate cancer. 2. The evidence of record is in equipoise as to whether the Veteran was exposed to herbicides during active service. 3. A disability of service origin is shown to have been the principal cause of the Veteran's death. CONCLUSIONS OF LAW 1. The Veteran is presumed to have developed prostate cancer as a result of his in-service herbicide exposure. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 2. As the Veteran's prostate cancer was presumptively incurred in service and subsequently caused his death, the criteria for service connection for the Veteran's cause of death have been met. 38 U.S.C.A. §§ 1310 , 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310, 3.159, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. The appellant contends that the Veteran was exposed to Agent Orange during his service with the United States Air Force in Thailand in 1970 and 1971, and that his death from prostate cancer should be service connected. The Veteran died in March 2011. The certificate of death shows that his primary cause of death was prostate cancer. Service connection for the cause of a Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory cause of death. 38 C.F.R. § 3.312(a) (2013). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b) (2013). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). A current disability must be related to service or to an incident of service origin. A Veteran seeking disability benefits must establish the existence of a disability and a connection between the Veteran's service and the disability. Boyer v. West, 210 F.3d 1322 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). Additionally, service connection may be established on a presumptive basis for a disability resulting from exposure to an herbicide agent. A Veteran who, during active military, naval, or air 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 during such service to an herbicide agent, 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); VAOPGCPREC 7-93 (1993), 59 Fed. Reg. 4752 (1994). The list of diseases associated with exposure to herbicide agents includes prostate cancer. 38 C.F.R. § 3.309(e) (2013). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). While all Veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent, the evidence of record does not document that the Veteran had any service in the Republic of Vietnam. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307 (2013). The Veteran's DD-214 for his period of service from September 1968 to September 1972 specifically includes the notation "Vietnam: No", and his service personnel records do not show any duty in Vietnam. A VA report of contact dated in November 2002 documenting a conversation with the Veteran noted that the Veteran "said that he was never in Vietnam." The records show that the Veteran served as an aircraft maintenance technician and was stationed at Ubon Royal Thai Air Force Base, Thailand, from June 1970 to June 1971. His decorations included the Vietnam Service Medal, which was awarded to Veterans who served between July 1965 and March 1973 in Vietnam, Thailand, Laos, or Cambodia in direct support of operations in Vietnam. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes, as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. That allows for presumptive service connection of the diseases associated with herbicide exposure. VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a Veteran served on one of these air bases 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 herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). The evidence demonstrates that the Veteran's primary cause of death was prostate cancer. Accordingly, if the Veteran is found to have been exposed to an herbicide agent during military service, presumptive service connection is warranted for the Veteran's cause of death. The service records do not contain affirmative evidence showing that the Veteran served as a military policeman or near the air base perimeter while stationed at Ubon Royal Thai Air Force Base, Thailand. Nevertheless, the appellant has provided letters written by the Veteran during his duty period at Ubon Royal Thai Air Force Base as well as photographs from the same period. She and the Veteran's daughter testified (and the letters and photographs confirm) that the Veteran reported frequent trips outside the Air Base while stationed in Thailand, including to a local hospital orphanage where he visited with and helped raise money for children, and to nearby town for shopping and recreational activities including movies. The appellant and the Veteran's daughter also testified that the Veteran had reported living for a time in housing outside of the air base while new barracks were constructed within the air base, necessitating him crossing the base perimeter every day to report to work. The appellant argues that these frequent trips in, over, and around the perimeter exposed to the Veteran to herbicides. Resolving reasonable doubt in favor of the Veteran, and considering the length of the Veteran's service in Thailand, the Board finds that it is at least as likely as not that the Veteran's duties and activities, including his many trips to the orphanage and town outside the base during his time stationed at Ubon Royal Thai Air Force Base, and his living for a period of time outside the base, would have required him to frequently traverse the perimeters of the base where herbicides were sprayed. In summary, the evidence of record shows that the Veteran served in Thailand during the Vietnam era, the period in which VA has acknowledged that herbicide agents were used near the air base perimeter at Ubon Air Force Base. The evidence establishes that after service discharge, the Veteran developed prostate cancer which ultimately caused his death. Therefore, resolving reasonable doubt in favor of the claimant, the Board finds that service connection for the cause of the Veteran's death is warranted on a presumptive basis. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs