Citation Nr: 1751480 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-27 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the Veteran's cause of death, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1966. The Veteran died in January 2006. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) St. Paul Pension Management Center in St. Paul, Minnesota. During the course of the appeal, the case was transferred to the Regional Office (RO) in St. Louis, Missouri. In her September 2013 substantive appeal, the appellant requested a local hearing. The Board observes, however, in January 2014 correspondence from her representative, she withdrew her request for a hearing. Accordingly the Board considers the hearing request withdrawn. 38 C.F.R. § 20.704(e). In May 2015 the case was remanded by the Board for further development to include providing the claims file to the appellant's accredited representative in order for the representative to provide a completed VA Form 646 and/or an Informal Hearing Presentation. In August 2015, the Board reopened the claim and remanded it for further development, to include obtaining complete service personnel records in order to verify whether the Veteran set foot in Vietnam. The appellant has submitted relevant evidence after the August 2017 supplemental statement of the case that has not been considered by the agency of original jurisdiction (AOJ). Since the substantive appeal was received after February 2, 2013, no waiver of initial AOJ consideration is necessary and the Board may proceed. See 38 U.S.C. § 7105(e) (2012). FINDINGS OF FACT 1. The Veteran died in January 2006. His death certificate lists the immediate cause of death as acute gastrointestinal blood loss anemia due to esophageal varices due to hepatitis C with underlying causes from pneumonia and lung cancer. 2. At the time of the Veteran's death, he was not service-connected for any disability. 3. There is no evidence that shows the Veteran served in the country of Vietnam and is not presumed to have been exposed to herbicides during his period of service, to include his service in Thailand from January 15, 1964, to January 14, 1965. 4. The Veteran's conditions, to include lung cancer are not presumed to have been incurred during active service or otherwise be related to service. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed to, by an event, injury, or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1112, 1113, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.§§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The appellant in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Dependency and Indemnity Compensation (DIC) The appellant contends that she is entitled to dependency and indemnity compensation based on service connection for the cause of the Veteran's death in January 2006. She filed a claim for service connection for the cause of the Veteran's death in April 2011. She argues that his cancer developed as a result of his exposure to Agent Orange in Vietnam and/or his service in Thailand. At the time of his death, the Veteran was not service-connected for any disability. Therefore, it is necessary to first determine whether service connection is warranted for the Veteran's cause of death. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of a veteran's death, the evidence must show that the disability was incurred in or aggravated by active service; and, it was the principal or contributory cause of death. 38 C.F.R. § 3.312. To be considered a principal 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. 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. § 1310; 38 C.F.R. § 3.312 (b), (c). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents. This presumption applies even though there is no record of such disease during service if it manifests to a compensable degree any time after service in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam-including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The Board notes that respiratory cancers, including lung, are included on the exclusive list covered by this presumption. 38 C.F.R. § 3.309(e). The Veteran's service treatment records are silent for any findings of, treatment for, or diagnosis of any of the death causing conditions, to include lung cancer. Moreover, the appellant has not asserted that the Veteran's conditions, to include lung cancer were initially manifested during service. Service connection on a direct basis is not being raised and the record makes clear that service connection on a direct basis is clearly not warranted. Herbicide Agent Exposure In various statements, the appellant claimed that lung cancer, which was the underlying cause of the Veteran's death, was due to herbicide agent exposure in either Vietnam or Thailand. See January 2012, May 2012, and August 2012 statements. Indeed, she indicates that Agent Orange was sprayed everywhere while the Veteran served in Thailand. She also noted that the Veteran "changed planes in Vietnam on his return trip home". As noted, the Board reopened the appellant's claim and remanded it for further development. The RO was directed to obtain the Veteran's complete service personnel records as well as conduct a thorough review as to the Veteran's exposure to Agent Orange in either Vietnam, during a stop-over flight upon return to the United States; or while serving active duty in Thailand. In an October 2015 letter, the AOJ requested additional information from the appellant relevant to her contentions regarding the Veteran's Agent Orange exposure. In a subsequent October 2015 statement, the appellant indicated that she had no additional information to submit. The AOJ obtained the Veteran's complete personnel file. The Veteran's official military personnel file and service treatment records indicated that he served in the Army from July 9, 1963, to July 8, 1966. His primary military occupational specialty was a 62B30 Engineer Equipment Maintenance Repairman. He was attached to the 561st Engineering Company and Company A of the 809th Engineering Battalion while he served in Thailand from January 15, 1964, to January 14, 1965. The United States Army and Joint Services Records Research Center (JSRRC) concluded that documentation or evidence do not confirm the use, testing, spraying, or storage of Agent Orange or tactical herbicides in Thailand for the period from January 15, 1964, to January 14, 1965. It was noted, however, the Public Health website confirmed the dates of herbicide usage from February 28, 1961, to May 7, 1975 along the outermost perimeter fence lines at Royal Thai Air Force bases. JSRRC stated that the historic records indicate the 561st Engineer Company operated from the Korat area to Kabin Buri Province to assist the 809th Engineer Battalion in construction on the Bangkok By-Pass Road. It noted that records do not indicate any personnel being sent to Vietnam, or their personnel being exposed to Agent Orange performing their duties in Thailand. In September 2017, the appellant submitted copies of pictures of the Veteran performing his duties in Thailand. She also reiterated that her late husband, the Veteran, was exposed to Agent Orange in Thailand. Unfortunately, based on all the information received it is concluded there is no documented proof the Veteran was exposed to herbicides in Vietnam or Thailand. Although the appellant indicates the Veteran reported a stop-over in Vietnam upon his return to the United States; and also reported that Agent Orange was sprayed throughout the Country of Thailand, and not just the perimeter, the Board has placed greater probative weight on the service department records which do not show that the Veteran had a stop-over in Vietnam; or that he was sent to any areas in Thailand where Agent Orange was used. The appellant did not point to any specific facts or documentation that the Veteran actually stopped over in Vietnam or was exposed to herbicides while in Thailand. Treatment records do not include any notations of service in Vietnam or exposure to herbicides. In fact, a notation in his January 2006 treatment notes specifically notes no Agent Orange exposure. Although the appellant sincerely believes that the Veteran's death was due to herbicide exposure, the most probative evidence of record does not support any exposure to herbicides in service or any stopover in Vietnam. In other words, the detailed descriptions of the duties of the Veteran's unit from the Service Department are far more probative than the appellant's contentions that he was exposed to herbicides. The Veteran's service personnel records do not show that he served at the Royal Thai Air Force Base at U-Tapao. Further, there is no indication that his duties placed him near any perimeters, and his service personnel records do not indicate any duties near the perimeter. Thus, the objective evidence of record does not show that he was exposed to Agent Orange in Thailand. After a full review of the record, the weight of the evidence demonstrates that the Veteran's cause of death condition, to include lung cancer, is not the result of herbicide exposure and is not otherwise related to service for the reasons discussed above. The Veteran's service records are silent for cancer related symptoms or complaints. Despite lay statements to the contrary, the weight of the evidence does not support a conclusion that the Veteran served in the Republic of Vietnam in satisfaction of the above-noted VA criteria; or that he was exposed to Agent Orange in Thailand. A delay of more than three decades following active duty service (before lung cancer was diagnosed) also weighs heavily against the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable for this DIC application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the Veteran's cause of death, to include as due to herbicide exposure is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs