Citation Nr: 1632974 Decision Date: 08/19/16 Archive Date: 08/26/16 DOCKET NO. 15-03 613A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington 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. Sauter, Associate Counsel INTRODUCTION The Veteran served on active duty June 1957 to January 1980. The Veteran died in March 1996 and the appellant is his surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran was provided a July 2016 hearing via video teleconference before the undersigned Veterans Law Judge. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died in March 1996. The certificate of death lists the immediate cause of death as cancer of the larynx. 2. The probative evidence of record is at least in equipoise as to whether the Veteran's duties while stationed at the U-Tapao Royal Thai Navy Airfield regularly required him to work near the base perimeter, where herbicide was sprayed. 3. Although the Veteran was not service-connected at the time of his death, the record shows that he was exposed to herbicides in service, and was diagnosed with larynx cancer; therefore, service connection is warranted. CONCLUSIONS OF LAW 1. Cancer of the larynx is presumed to have been incurred due to herbicide exposure during the Veteran's service in Thailand. 38 U.S.C.A. §§ 1110, 1112, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). 2. A disability presumptively incurred in service contributed substantially and materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.326(a) (2015). In the present case, the Board is granting the claim for service connection for cause of death. This decision constitutes a full grant of the benefits sought on appeal; therefore, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Law and Analysis The appellant contends that service connection is warranted for the cause of the Veteran's death. Specifically, she states that he was exposed to herbicides while serving on the U-Tapao Royal Thai Navy Airfield (U-Tapao) during the Vietnam War, and such exposure was a contributing factor to his death from larynx cancer. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Additionally, certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either (1) the principal (primary) cause of death or (2) a contributory cause of death. To be considered a principal (primary) cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to a veteran's death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2014). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam and at other locations during the Vietnam era (including Thailand) will be considered to have been incurred in service, if the evidence demonstrates that the Veteran was exposed to herbicides during service. 38 U.S.C.A § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a compensable degree within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Importantly, cancer of the larynx is associated with herbicide exposure for purposes of the presumption. 38 C.F.R. § 3.309(e). VA procedures for verifying exposure to herbicide in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR). VA has determined that herbicides were used on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security. Special consideration of herbicide exposure on a facts-found or direct basis is to be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. The Veteran's military personnel record documents that he was stationed at U-Tapao during the Vietnam era. He was an Avionic Weapon Delivery Systems Superintendent and Bomb-Navigation Systems Technician. At the July 2016 Board hearing, the appellant explained that the Veteran's primary job duties required him to work on the flight line. She provided a map of U-Tapao which showed that the flight line directly abutted the East perimeter of the base. The Veteran's direct supervisor at U-Tapao, R.M., submitted a July 2015 statement corroborating the claims of work near the base perimeter. R.M. explained that, "From what I can remember the bomber parking ramp backed up to the base perimeter on the east side. We spent the majority of our duty time on this ramp. The road we had to drive to get there from the main base paralleled the perimeter fence for about a half mile. Also, the barracks that we lived in backed up to the perimeter, about 100 yards from the fence. If Agent Orange was used anywhere in this vicinity then we would have been exposed to it." The Board finds the statements as to the Veteran's primary job location on the flight line to be credible. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The statements described similar practices that were consistent with the Veteran's documented duties. The statements regarding the proximity of the flight line to the base perimeter are also credible and supported by historical maps of the base during the time of the Veteran's service and current satellite imaging of the airfield. Further, R.M. described what he knew, as the Veteran's direct supervisor at U-Tapao, and plainly did not attempt to improperly bolster the appellant's claim, or describe things with certainty of which he could not be sure. As such, and with no evidence to weigh against those statements, the Board finds that the credible evidence of record supports a finding that the Veteran's duties regularly required him to work on the perimeter of U-Tapao. As VA has presumed that herbicides were used around the perimeter of U-Tapao, the Veteran's herbicide exposure is therefore presumed based on the above facts. As he had a current diagnosis of cancer of the larynx, and there is no evidence to rebut the presumptive relationship of the cancer of the larynx to his herbicide exposure, 38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d), service connection is warranted on a facts-found basis. Consequently, service connection for the cause of the Veteran's death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs