Citation Nr: 1753660 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 10-05 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for cause of death. REPRESENTATION The Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Grace J. Suh, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force (USAF) from September 1964 to September 1968, during the Vietnam Era. For his service, he received the National Defense Service Medal, Air Force Good Conduct Medal, Republic of Vietnam Campaign Medal, Vietnam Service Medal, and Air Force Longevity of Service Award. The Veteran passed away on March 9, 2008. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In June 2012, the Appellant testified before the undersigned at a Board videoconference hearing; a transcript has been associated with the claims file. In January 2017, the Board issued a decision denying the Appellant's service connection claim for cause of death. She appealed that decision to the United States Court of Appeals for Veterans' Claims (Court). By a September 2017 Order, the Court, pursuant to a Joint Motion for Remand (JMR), vacated the Board's January 2017 decision and remanded the matter for further action consistent with the JMR. FINDINGS OF FACT 1. The Veteran passed away in March 9, 2008 due to rectal and prostate cancers. 2. The most probative evidence of record does not establish the Veteran served in the Republic of Vietnam during the Vietnam Era. 3. The most probative evidence of record establishes the Veteran served on a temporary duty assignment as a fuel specialist at the U-Tapao Royal Thai Naval Air Force Base (RTNAFB) in Thailand from April 13, 1967 to July 17, 1967. 4. Neither the Veteran's military occupational specialty (MOS), daily work duties, nor performance evaluations establish that he served near the U-Tapao RTNAFB base perimeter. 5. There is affirmative evidence of record establishing the Veteran was not exposed to an herbicide agent while serving at the U-Tapao RTNAFB CONCLUSION OF LAW The criteria for service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1116, 1310 (West 2014); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant's claim is a dependency and indemnity compensation (DIC) claim based on service connection for cause of death. DIC is payable to the surviving spouse of a deceased veteran in the event of a service-connected death. 38 C.F.R. § 3.5. Service connection may be established for a disability that caused a veteran's death either principally or contributorily. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). Determining whether service connection for cause of death is warranted is based on the same statutory and regulatory scheme which governs service connection for a disease or injury incurred in or aggravated by active duty service. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, a veteran, who served on active duty in the Republic of Vietnam during the Vietnam Era, is presumed to have been exposed an herbicide agent during such service, absent affirmative evidence establishing that he was not. 38 C.F.R. § 3.307(a)(6), (d). If a veteran exposed to an herbicide agent pursuant to 38 C.F.R. § 3.307(a)(6) develops a disease delineated in 38 C.F.R. § 3.309(e), it shall be service connected on a presumptive basis even though there is no record of such disease during service. 38 C.F.R. § 3.309(e) provides an exhaustive list of the diseases that may be service connected on a presumptive basis. Similarly, a veteran who served on active duty with the USAF in Thailand during the Vietnam Era will be presumed to have been exposed during such service to an herbicide agent if he served at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhom Phanom, Udorn, Takhil, Korat, or Don Muang; and served as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the base perimeters. See VA Adjudication Procedures Manual M21-1, Part IV, Subpart ii, Chapter 1, Section H(5)(b); see also 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Service near a base perimeter may be shown by a veteran's MOS, daily work duties, performance evaluations, or other credible evidence. Initially, the Appellant contends the Veteran's death was caused by prostate cancer, which stemmed from his exposure to herbicide agents in service. See June 2012 Board Hearing Transcript at 11. First, the Board first addresses whether the Veteran's prostate cancer either principally or contributorily caused his death. The Board notes the Certificate of Death associated with the claims file shows the Veteran passed away on March 9, 2008 and that his immediate cause of death was carcinoma of the rectum, unknown cell type. No other conditions were sequentially listed. Nonetheless, during a June 2012 Board videoconference hearing, the Appellant testified the Veteran was first diagnosed with prostate cancer in 2006. June 2012 Board Hearing Transcript at 6. His prostate cancer spread, causing rectal cancer. Id. at 4. The Appellant's representative explained that according to a November 2007 bone scan interpreted by the Veteran's private treatment provider, Dr. J.H., his prostate cancer had metastasized into the rectum and the lumbar spine. Id. at 5. A review of the December 2007 Radiation Oncology Treatment Summary does not fully support this contention. Dr. S.R.K, simply indicated the Veteran had both locally advanced and metastatic prostate cancer as well as locally advanced rectal cancer. The only evidence of metastatic disease found involved the lumbar spine. However, in a July 2012 letter, a coroner submitted a letter to the State of Louisiana Department of Health and Hospitals stating a review of their files revealed an error on the Veteran's Certificate of Death. The coroner requested the Certificate of Death be amended to include adenocarcinoma of the prostate after carcinoma of the rectum, without any supporting rationale. It is unclear whether this amendment was made as the record contains no amended Certificate of Death. However, according to the Certificate of Death any other conditions listed sequentially after the immediate cause of death led to the same. Giving the Appellant the benefit of the doubt, the Board finds the Veteran's prostate cancer was a contributory cause of his death. See 38 C.F.R. § 3.312(c)(1) (contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death); see also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As 38 C.F.R. § 3.309(e) includes prostate cancer among the diseases associated with exposure to herbicide agents, the Board must next determine whether the evidence of record establishes demonstrates the Veteran served in the Republic of Vietnam. The Board acknowledges the Appellant's assertion the Veteran was exposed to herbicide agents in Vietnam. During the June 2012 Board videoconference hearing, the Appellant avowed that he told her that he served in Vietnam on a private mission, which he was not supposed to discuss. Id. at 7. In support, the Appellant's representative cited the Veteran's receipt of the Vietnam Service Medal and Republic of Vietnam Commendation Medal. Id. at 11. Additionally, the Appellant submitted a Fact Sheet regarding the Republic of Vietnam Campaign Medal to corroborate the Veteran's service in Vietnam. However, the Board notes the Republic of Vietnam Campaign Medal is not only awarded to service members who served a minimum of 60 days in Vietnam, it is also awarded to those who served outside the geographical limits of South Vietnam, but contributed to direct combat support to the forces in Vietnam for an aggregate of six months. The Vietnam Service Medal is also awarded under similar conditions; to all members of the Armed Forces of the United States serving at any time between July 4, 1965 and March 28, 1973 in Vietnam, its contiguous waters, or airspace; or in Thailand, Laos, Cambodia, or the airspaces, and in direct support of operations in Vietnam. See Department of Defense Manual of Military Decorations and Awards, 1348.33-M, C6.6.1.1.3 at 39 (September 2006). Thus, the award of these medals is not dispositive of in-country service. Further, the VA is in receipt of a June 2009 statement from S.C., the Veteran's high school friend. S.C. stated he and the Veteran often spoke about his service in Vietnam. However, S.C. did not provide any specific details of their conversations. Of note, S.C. indicated the Veteran went to Vietnam on TDY. In a July 2013 Statement in Support of Claim, the Appellant relayed that she overheard conversations between the Veteran and his friend, H.J., about his secret missions in Vietnam. She asserted it during these conversations the Veteran and H.J. realized they served on the same missions in Vietnam. However, this is inconsistent with a November 2012 statement received from H.J. In this statement, H.J. relayed that through their conversations he discovered that he and the Veteran both served in Vietnam. H.J. stated that the Veteran spoke about his missions in Vietnam and how traumatized he was by the experience, but he never confirmed they served in the same missions in Vietnam. Rather, H.J. stated they shared the same nightmares about service. Of import, H.J. indicated he served in-country in Vietnam from May 1969 to January 1970, which is inconsistent with the Veteran's foreign service dates detailed below. While the Board acknowledges the Appellant, S.C., and H.J. are certainly competent to relay their conversations with the Veteran, their lay statements have no probative value in terms of establishing whether he served in Vietnam as they have no personal knowledge of his reported service in-country. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a witness must have personal knowledge in order to be competent to testify to a matter; competent testimony is limited to that which the witness actually observed and is within their realm of knowledge). The Board notes that prior to the Veteran's passing he indicated he served in Vietnam from 1966 to 1967 in a March 2011 Veteran's Application for Compensation and/or Pension (Application). However, that is the extent of the information provided. In an attempt to verify the Veteran's service in Vietnam, the VA submitted a request through the Defense Personnel Records Information Retrieval Systems (DPRIS). A June 2013 DPRIS response advised that a search of the available records from April 1967 through June 1967 for the 6217th Combat Support Group, which was the higher headquarters for the 6217th Supply Squadron stationed at the Ching Chuan Kang Air Base in Taiwan, was negative for any TDY to Thailand or that he performed secret missions into Vietnam. The DPRIS response directed the VA to examine the Veteran's AF Form 7 for further details regarding his duty assignments, duty locations, and special duty assignments. The Veteran's service personnel records (SPRs) show that he was stationed at the Ching Chuan Kang Air Base in Taiwan with the 6217 Supply Squadron as a fuel specialist from January 1, 1966 to January 12, 1968. See Airman Military Record AF Form 7, Chronological Listing of Service. Further, his SPRs confirm that during this period of foreign service, he was on TDY to Thailand from April 13, 1967 to July 17, 1967. Id., Foreign Service Summary. No other foreign service is recorded. Thus, the evidence of record does not support the Appellant's contention the Veteran and H.J. served on the same missions in Vietnam. Contrary to the June 2009 statement from S.C., no other TDYs are documented. While the Veteran's assignment to the Ching Chuan Kang Air Base in Taiwan from January 1, 1966 to January 12, 1968, does not exclude his assertion that he served in Vietnam from 1966 to 1967 in the March 2011 Application, a September 2013 e-mail from an archivist with the Air Force Historical Research Agency (AFHRA) directly contradicts his claim. In the September 2013 e-mail the archivist confirmed the 6217th Supply Squadron was located at the Ching Chuan Kang Air Base in Taiwan and that some of its personnel were provided to U-Tapao RTNAFB in 1967. The 6217th Supply Squadron supported operational missions originating from Thailand. In 1967, the U-Tapao RTNAFB was in the process of being built. Because it was a USAF base being constructed in Thailand all missions were classified as "secret" because the Thai government did not want any publicity about assisting the United States in its war efforts against the Communist aggression. Aside, from this general "secret" classification, there were no "secret" missions originating from U-Tapao RTNAFB landing in Vietnam because the base was just operational, with only a few aircraft arriving. Given the detail contained in the Veteran's SPRs regarding his foreign service and the September 2013 e-mail from the AFHRA archivist, the Board finds they outweigh the appellant's general assertions in probative value. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). Accordingly, the Board finds the preponderance of the evidence does not establish the requisite service in Vietnam for presumptive service connection for prostate cancer due to herbicide agent exposure under 38 C.F.R. §§ 3.307(a)(6), 3.309(e). See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009) (holding that the benefit of the doubt doctrine is not applicable based on "pure speculation or remote possibility"). In the alternative, the appellant contends the Veteran was exposed to herbicide agents while serving in Thailand. In the July 2013 Statement in Support of Claim, the Appellant stated the Veteran was a fuel handler while serving in Thailand. In this position, he came into contact with herbicide agents as he moved supplies from Thailand to Vietnam. As noted above, the Veteran's SPRs confirm that he was in the USAF and served on TDY from April 13, 1967 to July 17, 1967 at the U-Tapao RTNAFB. See VA Adjudication Procedures Manual M21-1, Part IV, Subpart ii, Chapter 1, Section H(5)(b). However, as his MOS as a fuel specialist is not among the MOSs expressly identified, the Board must examine the evidence of record to determine whether his MOS, daily work duties, performance evaluations, or other credible evidence support the proposition that he served near a base perimeter during the dates he was on TDY. In this regard, along with the September 2013 e-mail, the AFHRA archivist provided a map of the U-Tapao AFB from 1968 showing the fuel storage areas; it was a fenced in area to the right hand side of the map. The archivist explained the fuel storage tanks were represented by squares with black circles inside. According to the map the fuel storage tanks, which are represented by squares with black circles inside are centrally located on the south end of the base, well away from the perimeter on land on the north, east, and west ends of the base. Additionally, the archivist provided an aerial photograph of the base taken in May 1969, which depicts the fuel area in the upper right hand portion. The archivist explained the fuel storage area contained large round white storage containers, very close to the Gulf of Siam. A review of the photograph confirms the presence of large round white storage containers, very close to the shoreline adjoining a large body of water. The geographic area shown by the aerial photograph reveals an appreciable distance between the shoreline to the northern and eastern most points of the base depicted in the photograph, which does not appear to include the perimeter on land as other structures are shown. The western most point of the base depicted in the photograph shows land mass, devoid of structures for the most part. However, according to the map, this area consisted of a golf driving range extending well past the fuel storage areas. Thus, the Board must conclude the fuel storage area was not near the base perimeter on land. According to an October 1967 Performance Report among the Veteran's SPRs, during the performance period from September 1966 to September 1967, his duties consisted of refueling and defueling assigned and transient aircraft with jet fuel, avfuel, oils, and demineralized water; record stock fund reimbursable and cash transaction; maintain quality control of fuels and oils; operate various types and models of aircraft refueling equipment; perform operator's preventative maintenance on such equipment; and comply with existing fire, safety, and security directives. Nothing noted among his duties suggest he was required to move supplies from Thailand to Vietnam as the Appellant claims. Cf. July 2013 Statement in Support of Claim. More importantly, none of the duties indicate he was required to be near the base perimeter on land. Aside from the Veteran's SPRs and the September 2013 e-mail from the AFHRA archivist, along with its attachments, the only other evidence of record bearing on the nature and circumstances of the Veteran's service while at the U-Tapao RTNAFB is the Appellant's lay statements. As she does not have any personal, independent knowledge of the requirements of his duties in service, the Board is unable to accord her lay statements any probative value. See Layno, supra. For this reason, the Board finds there is no credible evidence demonstrating he served near a base perimeter while serving at the U-Tapao RTNAFB. Even if the Board found the Veteran served near a base perimeter, there is affirmative evidence demonstrating he was not exposed to an herbicide agent while serving at the U-Tapao RTNAFB. 38 C.F.R. § 3.307(d) ("affirmative evidence to the contrary" does not require a conclusive showing, but such a showing as would in consideration of all the evidence that the disease was not incurred in service). With respect to herbicide agents, in the September 2013 e-mail the archivist explained although higher headquarters did note there was nearby vegetation that could conceal an approaching enemy, no vegetation control program was suggested. Instead, they suggested more manpower, bunkers, putting up a fence, towers, and lights. Therefore, there was "NO herbicide use at all in 1966 or 1967." In support, the archivist supplied extracts regarding vegetation control at U-Tapao RTNAFB from January through December 1967. See AFHRA Call No. K-GP-SUP635-HI, Jan.-Jun. 1967, IRIS No. 444462; AFHRA Call No. K-GP-SUP635-HI, Jul.-Dec. 1967, IRIS No. 444463. The extract pertaining to the period between January and June 1967 confirm the based was being constructed and contained no mention of any vegetation control on base. Per the archivist's review, the base defense issues were a very low priority because there were no attacks on any base in Thailand. Attacks on bases in Thailand did not occur until April 1968. Following a formal inspection in November 1967, the Inspector General noted the "[b]ase appearance was satisfactory considering the amount of construction in progress, [...] lack of vegetation and dust due to the hot dry climate at [that] time of year." The extract addressing the period between July and December 1967 noted ongoing construction and a security study of the U-Tapao RTNAFB and its surrounding area. Notably, vegetation outside the base was not listed among the security concerns. The extracts are silent as to any contracts for vegetation control during this period. While vegetation outside the base was not a concern, the extract documented that vegetation on base posed a problem because it provided cover for thieves. Even so, the vegetation on base was not removed. Rather, physical barriers and armed security were utilized to address this issue. A September 1967 Based Defense Security Study outlined the terrain surrounding the U-Tapao RTNAFB and the potential security concerns. It noted mountainous and densely vegetated terrain surrounding the U-Tapao RTNAFB, and that the base itself had no perimeter fence. However, in terms of external defense and interim measures the vegetation was not a concern. Rather, the addition of more manpower, vehicles, communication equipment, and fencing were the priorities identified. Thus, there is no evidence even suggesting the spraying of herbicide agents was undertaken much less contemplated during this period. As another matter, the Board acknowledges the Appellant's claim in her November 2012 Statement in Support of Claim, that the Veteran had a persistent rash on his face, which she believed was due to herbicide agent exposure. However, there is no evidence showing that she is competent to opine as to the medical etiology regarding such a complex issue. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007), abrogated on other grounds by Walker v. Shinseki, 708 F.3d 1331 (2013), (holding that while a lay person is not competent to opine as to medical etiology or render medical opinions, they are competent to establish the presence of observable symptomatology); Jones v. West, 12 Vet. App. 460, 465 (1999) (holding that only those with specialized medical knowledge, training, or experience are competent to render a medical diagnosis). As she admitted in a March 2016 letter, he never sought treatment for the rash. As a result, there is no competent medical diagnosis or opinion available to contradict the evidence above. In light of the above, the Board finds the preponderance of the evidence is against presumptive service connection for prostate cancer due to herbicide exposure during service in Thailand during the Vietnam Era. See VA Adjudication Procedures Manual M21-1, Part IV, Subpart ii, Chapter 1, Section H(5)(b); see also 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e); Fagan, supra. Distinct from presumptive service connection due to herbicide exposure, malignant tumors are eligible for service connection as a chronic disease pursuant to 38 C.F.R. §§ 3.307(a), 3.309(a), provided it manifested to a compensable degree within one year of separation from service. In this instance, the first relevant post-separation medical evidence of record is a July 2006 treatment note from Dr. J.L.M. indicating a biopsy needed to be scheduled as soon as possible because the Veteran's symptoms were very suspicious for prostate cancer; this was 38 years post-separation. Subsequently, he was diagnosed with prostate cancer. Thereafter, he was diagnosed with rectal cancer. See March 2007 W.K. Medical Center Treatment Note (the treatment provider found a large rectal mass). Moreover, the Appellant has never indicated his prostate and/or rectal cancers had their onset within one year of his separation from service. As result, the Board finds the preponderance of the evidence does not substantiate service connection on a presumptive basis as a chronic disease. See 38 C.F.R. §§ 3.307(a), 3.309(a); see also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan, supra Nevertheless, the fact that presumptive service connection may not be warranted does not preclude service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1942 (Fed. Cir. 1994). As it relates to service connection on a direct basis due to herbicide agent exposure, despite the Appellant's assertions, the evidence detailed above establishes he was not exposed to an herbicide agent in service. Exercising due diligence, the Board has reviewed the Veteran's service treatment records (STRs) to determine whether there is any evidence suggesting his prostate cancer or rectal cancer first manifested in service or was otherwise related thereto. However, his STRs are silent as to any prostate or rectal issues in service. Thus, while the evidence of record establishes a current disability, it does not establish an in-service incurrence. See Shedden, supra. Necessarily, the nexus element cannot be established. Accordingly, the Board finds the preponderance of the evidence does not support service connection for either prostate or rectal cancer on a direct basis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan, supra. ORDER Service connection for cause of death is denied. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs