Citation Nr: 1612950	
Decision Date: 03/30/16    Archive Date: 04/07/16

DOCKET NO.  15-23 972	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

Appellant and her daughter




ATTORNEY FOR THE BOARD

E. Redman, Counsel


INTRODUCTION

The Veteran served on active duty from August 1952 to August 1972.  The Veteran died in November 2013.  The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  Jurisdiction of the case is currently held by the Atlanta, Georgia RO.

A Travel Board hearing was held on February 10, 2016, before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2014) and who is rendering the determination in this case.  A transcript of the hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT


1.  The Veteran died in November 2013 of cardiovascular disease. 
 
2.  Resolving all doubt in the Veteran's favor, the cardiovascular disease/ischemic heart disease that caused the veteran's death is presumed to be related to exposure to herbicide agents during his active military service in Thailand.


CONCLUSION OF LAW

By extending the benefit of the doubt to the appellant, the cardiovascular disease that caused the Veteran's death was incurred in or aggravated by his service exposure to herbicides.  38 U.S.C.A. §§ 1101, 1110, 1310, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Because the issue of entitlement to service connection for the cause of the Veteran's death is being granted in full on appeal, no further notice or development under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) is needed. 

Legal Analysis 

The appellant has contended, including at her October 2010 travel board hearing, that the issue on appeal should be granted because the Veteran's death from cardiovascular disease, diagnosed during his life as ischemic heart disease, is related to his exposure to herbicides while in service. 

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. 
 § 1110; 38 C.F.R. §§ 3.303, 3.304.

To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred or aggravated in service either caused or contributed substantially or materially to cause death.  For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related.  For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 

In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the Veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death.  See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). 

Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death.  Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed.  38 C.F.R. § 3.312(c)(3). 

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.  See 38 C.F.R. § 3.312(c)(4). 

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. 
§ 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e) (2015).  Lung cancer is listed as a disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e).  

The appellant has claimed that the Veteran was exposed to herbicides while stationed in Thailand.  VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War.  In a May 2010 bulletin, C&P indicated that it had 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. 

According to a June 2014 report from the Defense Personnel Records Information Retrieval System (DPRIS), a primary source for this information was the recently declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report:  Base Defense in Thailand.  Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P determined that there was some evidence that herbicides of a tactical nature, or that of a greater strength than the commercial variant, were used on the Thailand base perimeters. 

According to the bulletin, 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.  See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR).  However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975.  The designated Thailand bases were the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang.  M21-1MR. 

Stated another way, C & P has determined that special consideration should be given to Veterans whose duties placed them on or near the perimeters of Thailand military bases.  Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those Veterans.  Significantly, C & P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure."

According to the Veteran's death certificate, he died in November 2013 of cardiovascular disease.  During his lifetime (in April 2004 treatment records) the Veteran was diagnosed with ischemic heart disease. 

The appellant seeks service connection for the cause of the Veteran's death as a result of the Veteran's death from cardiovascular disease (ischemic heart disease).  The record reflects that the Veteran served a tour of duty in Thailand and that his Military Occupational Specialty (MOS) was in supply equipment repair.  The record includes lay statements from the appellant and letters written by the Veteran when he was in service indicating that he was also maintenance chief, inspector for ground power equipment, and in quality control.  These statements indicate that he had to inspect equipment and work stations and was stationed at U-Tapao Thailand.  He also inspected equipment on the flight line.  The appellant contends that such duties required the Veteran to be around the perimeter of the fence at times.  She also testified that, having grown up on a farm and having experienced the effects of spraying chemicals on the farm, that the Veteran would likely have been exposed to herbicides based upon it traveling in the air, and in puddles the Veteran walked through.   

Evidence of record clearly establishes that the Veteran served at one of the designated Thailand air bases (i.e. U-Tapao).  The Veteran also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicides were used near those air base perimeters in Thailand.  The Board finds the Veteran's duties as maintenance chief and ground power equipment inspector could require work on the perimeters of U-Tapao as consistent with the circumstances, conditions, and hardships of his service.  In any event, as noted, the C & P has determined herbicide use occurred in the perimeter areas of U-Tapao Air Base.  There also is no evidence in the file that is inconsistent with the evidence that the Veteran would have been exposed to the perimeters of the base while stationed at U-Tapao. 

Resolving all doubt in favor of the appellant, and based on the facts found, the Board has determined that the Veteran was exposed to herbicide agents, to include Agent Orange, during active service in Thailand.  38 C.F.R. § 3.102.  In addition, the evidence shows that the Veteran died of cardiovascular disease (diagnosed during his lifetime as ischemic heart disease).  Finally, the Veteran's heart disease is presumed to have been caused by his conceded herbicide exposure.  38 C.F.R. §§ 3.307(a)(6), 3.309(e).

In view of the foregoing discussion, the Board concludes that entitlement to service connection for the cause of death is warranted.



ORDER

Entitlement to service connection for the cause of death is granted.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs