Citation Nr: 1526906 Decision Date: 06/24/15 Archive Date: 06/30/15 DOCKET NO. 14-02 885 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota THE ISSUE Whether new and material evidence has been received to reopen the Appellant's claim of entitlement to service connection for the cause of the Veteran's death claimed as the result of herbicide exposure and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from December 1951 to January 1972. He died in May 2009. The Appellant is the Veteran's surviving spouse. There is a motion to advance this case based on the Appellant's age, but, considering the Board is able to grant the claim in full, there is no need to rule on the motion. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the St. Paul, Minnesota, Regional Office (RO) which determined that new and material evidence had not been received to reopen the Appellant's claim of entitlement to service connection for the cause of the Veteran's death claimed as the result of herbicide exposure. In September 2014, the RO tacitly determined that new and material evidence had been received to reopen the Appellant's claim and denied the claim on the merits. The Board has reviewed the physical claims file and both the Veterans Benefit Management System (VBMS) and the "Virtual VA" files. As to the issue of whether new and material evidence has been received to reopen the Appellant's claim of entitlement to service connection for the cause of the Veteran's death, the Board is required to consider the question of whether new and material evidence has been received to reopen the claim without regard to the RO's determination. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). FINDINGS OF FACT 1. In July 2011, VA denied service connection for the cause of the Veteran's death. The Appellant was informed of the decision and her appellate rights in July 2011. She did not subsequently submit a notice of disagreement (NOD) with the decision. 2. The additional documentation submitted since the July 2011 rating decision is new and material and raises a reasonable possibility of substantiating the Appellant's claim. 3. The Veteran died in May 2009, and the death certificate states that the immediate cause of death was respiratory failure; the underlying cause of death was aspiration pneumonia; and other contributing conditions included "diffuse large B-cell lymphoma (in remission), autologous peripheral blood stem cell transplant (4/3/2007), pulmonary emphysema, [and] diabetes mellitus." 4. It is at least as likely as not that the Veteran's job duties and responsibilities at Nakhon Phanom Royal Thai Air Force Base (RTAFB) during the Vietnam War involved exposure to herbicides (namely, the dioxin Agent Orange) along the base's perimeter. CONCLUSIONS OF LAW 1. The July 2011 rating decision denying service connection for the cause of the Veteran's death claimed as the result of herbicide exposure is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2014). 2. New and material evidence sufficient to reopen the Appellant's claim of entitlement to service connection for the cause of the Veteran's death claimed as the result of herbicide exposure has been presented. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2014). 3. Service connection for the Veteran's cause of death is granted, since the conditions contributing to his death included B-cell lymphoma and diabetes mellitus, which are presumptively linked to Agent Orange exposure. 38 U.S.C.A. §§ 1110, 1116, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309(e), 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103, must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate his claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In this decision, the Board reopens and grants the Appellant's claim of entitlement to service connection for the cause of the Veteran's death claimed as the result of herbicide exposure. As such, no discussion of VA's duties to notify and to assist is necessary as to that issue. II. Application to Reopen Service Connection for the Cause of the Veteran's Death Generally, absent the filing of a NOD within one year of the date of mailing of the notification of the initial review and determination of a claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2014). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In July 2011, the RO denied service connection for the cause of the Veteran's death claimed as the result of herbicide exposure "because the evidence does not establish any relationship between it and the Veteran's military service." The Appellant was informed in writing of the adverse decision and her appellate rights in July 2011. She did not submit a NOD with the adverse decision. The evidence upon which the July 2011 rating decision denying service connection was formulated may be briefly summarized. The Veteran's May 2009 death certificate states that the immediate cause of death was respiratory failure; the underlying cause of death was aspiration pneumonia; and other contributing conditions included "diffuse large B-cell lymphoma (in remission), autologous peripheral blood stem cell transplant (4/3/2007), pulmonary emphysema, [and] diabetes mellitus." The Veteran's service treatment records do not refer to respiratory failure, aspiration pneumonia, diffuse large B-cell lymphoma, pulmonary emphysema, or diabetes mellitus. The Veteran's service personnel records state that he served at Nakhon Phanom Royal Thai Air Force Base (RTAFB) from November 1967 to November 1968. In a May 1998 written statement, the Veteran advanced that "I feel that I was exposed to AO during my tour of duty at NICP Thailand." New and material evidence pertaining to the issue of service connection for the cause of the Veteran's death was not received by VA or constructively in its possession within one year of written notice to the Appellant of the July 2011 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional documentation received since the July 2011 rating decision includes copies of the Veteran's service personnel records and his death certificate, a copy of the Air Forces' Project Checo Southeast Asia Report, VA publications, and written statements from the Appellant. The Project Checo Southeast Asia Report states that there was "heavy use of herbicides" at Nakhon Phanom RTAFB. The Air Force report establishes that herbicides were used at Nakhon Phanom RTAFB. It is of such significance that it raises a reasonable possibility of substantiating the Appellant's claim for service connection for the cause of the Veteran's death when considered with the previous evidence of record. As new and material evidence has been received, the Appellant's claim of entitlement to service connection for the Veteran's death claimed as the result of herbicide exposure is reopened. III. Service Connection for Cause of Death The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2014). With regard to the claim for the cause of the Veteran's death, a surviving spouse of a qualifying veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2014). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2014). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(c) (2014). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death. A causal relationship must be shown. 38 C.F.R. § 3.312 (2014). If a Veteran was exposed to herbicides during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of that disease during service, provided that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2014). As noted above, the Veteran's May 2009 death certificate includes contributing conditions of diffuse large B-cell lymphoma and diabetes mellitus. Diffuse large B-cell lymphoma is a form of non-Hodgkin's lymphoma. The presumptive diseases for exposure to herbicides includes hairy cell leukemia and other chronic B-cell leukemias, non-Hodgkin's lymphoma, as well as diabetes mellitus. 38 C.F.R. § 3.309(e) (2014). The central question in this case is whether the Veteran likely had Agent Orange exposure. 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 herbicides, unless there is affirmative evidence to establish that the Veteran was not exposed to herbicides during that service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2014). During his lifetime, the Veteran did file a claim for service connection for non-Hodgkin's lymphoma based on Agent Orange exposure, so we do have statements from him as to the circumstances of his service. He did not allege service in Vietnam. Rather, he stated that while he served at Nakhon Phanom, he was assigned to a helicopter squadron as a quality control inspector. In a November 1998 statement, he indicated that his military occupational specialty was jet engine mechanic, but then he was assigned to quality control in July 1968. He was stationed in Thailand from November 1967 to November 1968. 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). Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. See Compensation & Pension Service Bulletin, May 2010. The Veteran indicated that he served as a flight line mechanic and then a quality control inspector during his service at Nakhon Phanom. His service personnel records, including very favorable performance reviews, confirm this fact. To the Veteran's, and, by extension, the Appellant's, benefit, the performance reviews describe the Veteran as being extremely conscientious and dedicated to his duties. The Veteran's descriptions are generally credible and consistent with the circumstances of his service. Moreover, the performance evaluation for the time period April 1967 to April 1968, which covers part of the time he was in Thailand, comments on the fact that his duties included supervising and accomplishing all phases of flight line maintenance. The Board finds the statements as to the circumstances of his service in Thailand to be competent and credible. Thus, under the ordinary meaning of the words, the evidence demonstrates that the Veteran arguably served "near the perimeter" while at Nakhon Phanom since his duties extensively placed him on the flight line. The Court recently reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). Here, although there is no specific record of assignment to perimeter duty, the Board finds that consistent assertions regarding the time the Veteran spent along the perimeter of the Royal Thai Air Force Base in Nakhon Phanom to be credible. Therefore, as a factual matter, i.e., on a fact found basis, in view of the aforementioned guidance from the M21-1 MR, the Board finds that the Veteran was as likely as not exposed to herbicide agents while he was stationed at the Royal Thai Air Force Base in Nakhon Phanom during his one-year tour of duty from November 1967 to November 1968, during the Vietnam era. See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q). Thus, resolving all reasonable doubt in his favor, the Board finds that service connection for the cause of the Veteran's death is warranted, since conditions contributing to death included diffuse large B-cell lymphoma and diabetes mellitus. 38 U.S.C.A. §§ 1310, 5107; 38 C.F.R. § 3.312 . (CONTINUED ON NEXT PAGE) ORDER The Appellant's application to reopen her claim of entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to service connection for the cause of the Veteran's death claimed as the result of herbicide exposure is granted. ______________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs