Citation Nr: 1602052 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 13-11 404 ) 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: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 to October 1988. He died in November 2005. The appellant is the Veteran's surviving spouse. The appellant's claim of entitlement to service connection for the cause of the Veteran's death was originally denied by the RO in rating decisions of July and September of 2006, which, after written notification in July and September of 2006, the appellant did not appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 decision by the Muskogee, Oklahoma, Regional Office (RO), which denied the appellant's claim on the merits after re-adjudication based upon a de novo review directed in July 2010 on the basis of the holding of the United States District Court in the class action of Nehmer v. United States Department of Veteran's Affairs. 38 C.F.R. § 3.816 (2015). See Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov't of the U. S., 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). The appellant filed a notice of disagreement (NOD) on October 2012. A statement of the case (SOC) was provided on April 2013. The appellant perfected her appeal with the timely submission of a statement in lieu of a VA Form 9 (Substantive Appeal) on April 2013. Accordingly, the Board construes the issue on appeal to be as listed on the cover page. The appellant was provided with a Board hearing before the undersigned Veterans Law Judge in October 2015. A copy of the transcript has been associated with the claims file and reviewed accordingly. The appellant submitted additional evidence of a lay statement and photographs on October 2015. This additional evidence was accompanied by a signed waiver of consideration by the RO. Therefore, the Board shall consider it in the first instance. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran died in November 2005; the Certificate of Death establishes that the immediate cause of the Veteran's death was Lewy body dementia due to (or as a consequence of) Parkinson's disease. 2. At the time of the Veteran's death, he had not established entitlement to service connection for any disabilities. 3. The record evidence establishes that the Veteran did not serve in country in the Republic of Vietnam during the Vietnam Era. 4. The record evidence establishes that the Veteran served in the United States Air Force, as a security police manager, in Thailand from October 1971 to October 1972 at the Udorn Royal Thai Air Force Base, in an area in which herbicides were used on or near the perimeters of the Thailand military bases. 5. The record evidence is in relative equipoise as to whether the Veteran was actually exposed to herbicide agents while on active duty in Thailand during the Vietnam Era. 6. The record evidence is in relative equipoise as to whether there is a causal relationship between the Veteran's exposure to herbicide agents in service and the subsequent development of his fatal Parkinson's disease. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the appellant, a disease or injury of service origin did contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2015); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA 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 will not be further discussed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). The appellant has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the Veterans Law Judge who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the presiding Veterans Law Judge identified the issue to the appellant, noted the bases for the RO's denial, and indicated the evidence necessary to substantiate the claim. The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim on appeal and the appellant provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. Background and Analysis The survivors of a Veteran who has died from a service-connected disability or compensable disability may be entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310. The death of the Veteran will be considered to have been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a); see also 38 U.S.C.A. §§ 1110, 1131. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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) (2015). A service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1) (2015). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2015). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303(a). For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e) (2015). The following diseases are deemed associated with herbicide exposure, under current law: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2015). The foregoing diseases shall be service connected if a Veteran was exposure to an herbicide agent during active military, naval, or air service, 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 such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 (West 2014) and 38 C.F.R. § 3.307(d) (2015) are also satisfied. For purposes of presumptive service connection based on exposure to an herbicide agent, the diseases listed at section 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (2014). Accordingly, the law provides that for claims based on the chronic effects of exposure to Agent Orange, presumptive service connection may be established for certain diseases, including Parkinson's disease, as specified above. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). This statutory presumption, however, is not for application in this case as the Veteran does not have the requisite service in-country in the Republic of Vietnam during the Vietnam Era. That notwithstanding, in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As such, the Board must not only determine whether the Veteran had a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam (see 38 C.F.R. § 3.309(e)), but must also determine whether the disability was the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). In other words, the fact that the Veteran did not meet the requirements of 38 C.F.R. § 3.307(a)(6)(iii) does not in and of itself preclude the appellant from establishing service connection as she may, in the alternative, establish service connection by way of proof of actual direct causation, showing that the Veteran was directly exposed to Agent Orange during service, which, in turn, caused his Parkinson's disease. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d). In this function, 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 the "Project CHECO Southeast Asia Report: Base Defense in Thailand. The Compensation and Pension (C&P) Service has determined that a special consideration on herbicide exposure on a factual basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q) ('M21-1MR'), provides that herbicide exposure may be conceded on a direct, facts-found basis if the Veteran served with the United States Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and served as an Air Force security policeman, security control dog handler, member of the security police squadron, or otherwise served near the air base perimeters as shown by evidence of military occupation specialty (MOS), daily work duties, performance evaluation reports, or other credible evidence. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In considering the Veteran's MOS as a security police manager, and that he served in the United States Air Force in Thailand from October 1971 to October 1972, the Board resolves all reasonable doubt in favor of the appellant and finds that the Veteran worked on or near the Udorn RTAFB air base perimeter in an area in which herbicides were used. Hence, the Veteran's actual exposure to herbicides during active service may be conceded on a factual basis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q) (2010). As evidenced by the record, it has been shown by competent medical evidence that the Veteran was diagnosed with Parkinson's disease following his retirement from military service. However, a review of the Veteran's service treatment records does not show any complaint of or treatment for a Parkinson's disease or any other neurological disease while in service. Further, no evidence is available documenting the existence of Parkinson's disease or other neurological disability within one year of separation from active duty. As such, the Board finds that presumptive service connection for Parkinson's disease as a chronic disease (i.e., other organic diseases of the nervous system) is not warranted. 38 C.F.R. §§ 3.307, 3.309(a). After a careful review of the record and resolving all reasonable doubt in favor of the appellant, the Board finds that a service-connected disability (i.e., Parkinson's Disease) did cause or contribute substantially or materially to cause the Veteran's death. In this regard, the Board initially notes that the Veteran's actual exposure to herbicides in service has been conceded on a factual basis. The Board also notes that the Secretary's discussion of the findings by the National Academy of Sciences (NAS) based on its extensive review of the sound medical and scientific studies and reports, which contain a great deal of medical and scientific data of many diseases, including Parkinson's Disease, was found to have a positive association to the exposure of herbicide agents. See 75 Fed. Reg. 53,202 (Aug. 31, 2010); see generally Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (explaining that the NAS's statistical analysis of the scientific and medical data pertaining to the health effects of Agent Orange exposure remains a source of relevant, competent medical evidence that VA may "consider when assessing whether the totality of the evidence is sufficient to establish direct service connection"). In addition, the competent medical evidence of record reflects that the Veteran had been diagnosed with Parkinson's disease. Finally, the Certificate of Death establishes that the immediate cause of the Veteran's death was Lewy body dementia due to (or a consequence of) Parkinson's disease. Accordingly, the Board finds it reasonable to conclude that the record evidence, together with the findings by the NAS, supports an actual direct causal relationship between the Veteran's in-service exposure to herbicides and his subsequent development of Parkinson's Disease, which did cause, or contribute substantially or materially to cause, the Veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107(b); 38 C.F.R. § 3.102, 3.303(d), 3.312; Combee v. Brown and Gilbert v. Derwinski, both supra. The appeal is granted. ORDER Entitlement to service connection the cause of the Veteran's death is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs