Citation Nr: 1700534	
Decision Date: 01/09/17    Archive Date: 01/18/17

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 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. Tayeh, Associate Counsel
INTRODUCTION

The Veteran served on active duty in the U.S. Air Force from September 1964 to September 1968. He died in March 2008 and the Appellant is his surviving spouse. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by a Department of Veterans Affairs (VA) Regional
Office (RO).

In October 2014, the Board remanded the appeal for additional development. The appeal is again before the Board for further proceedings.

The Board has reviewed the electronic records maintained both in Virtual VA and the Veterans Benefits Management System (VBMS).

The Appellant testified by video conference at a June 2012 Board hearing. The transcript has been associated with the file.


FINDINGS OF FACT

1.  The Veteran died in March 2008, and the immediate causes of death were carcinoma of the rectum, unknown cell type and adenocarcinoma of the prostate.

2.  At the time of the Veteran's death, the Veteran was not service-connected for any disability.

3.  The Veteran did not serve on land or in the waters offshore of the Republic of Vietnam during the Vietnam War Era; therefore, exposure to an herbicide agent may not be presumed.

4.  The Veteran served at the U-Tapao Royal Thai Air Force Base in Thailand from April to July 1967 but did not serve as a security policeman, security patrol dog handler, or member of a security police squadron, or otherwise serve near the base perimeter as shown by his military occupational specialty, daily work duties, performance evaluations, or other credible evidence, and thus exposure to an herbicide agent may not be presumed, and he was not otherwise exposed to an herbicide agent during service.

5.  The Veteran's carcinoma of the rectum, unknown cell type and adenocarcinoma of the prostate did not manifest in service, and such disabilities were not otherwise etiologically related to service.


CONCLUSION OF LAW

Carcinoma of the rectum, unknown cell type and adenocarcinoma of the prostate, which were the immediate causes of the Veteran's death, were not incurred in or aggravated by service, and the criteria for service connection for the cause of the Veteran's death have not been satisfied. 38 U.S.C.A. §§ 1112, 1116, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Compliance with Board Remand

In October 2014, the Board remanded the case and directed the RO to send the Appellant an updated VCAA notice letter that properly informed her of how to establish a claim for service connection due to herbicide exposure in Thailand.  The notice was to specifically cover the types of evidence that could be provided, to include buddy statements and other lay evidence.  The Board also directed the RO to readjudicate the Appellant's claim based upon review of all available evidence, to include the September 2013 response from an archivist at the Air Force Historical Research Agency (AFHRA).  In November 2015, the RO sent the Appellant a letter informing her of the requirements for supporting a claim for herbicide exposure in Thailand.  The RO readjudicated the claim in a May 2016 supplemental statement of the case, considering all of the evidence in the case, including the September 2013 email from the AFHRA archivist.  Therefore, the Board's prior remand instructions have been substantially complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Duties to Notify and Assist

VA has met all the duty to notify and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326.  

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  When VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must also notify the claimant of the information regarding how an effective date and disability rating are determined.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In a claim for service connection for a veteran's cause of death, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service-connected.  Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007).

The RO provided pre-adjudication notice to the Appellant in a May 2008 letter.  The Appellant was notified of the information necessary to substantiate her claim and of her and VA's respective obligations for obtaining specified pieces of information. The letter did not, however, provide information regarding how effective dates and disability ratings are determined.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b).  In accordance with the Board's October 2012 remand, the RO sent the Appellant an updated VCAA letter in October 2012, which included information on how VA determines effective dates and disability ratings.  In accordance with the Board's October 2014 remand, the RO sent the Appellant an updated VCAA letter in November 2015 that included corrected information on claims for service connection due to herbicide exposure in Vietnam and Thailand, and the evidence needed to substantiate such claims.  

While the Appellant was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the March 2009 rating decision, the Board concludes this defect was cured by the RO sending proper notice in October 2012 and November 2015, and readjudicating the claim in its May 2016 supplemental statement of the case.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006).  For these reasons, the Board concludes that VA has satisfied its duty to notify.

VA has also fulfilled its duty to assist the Appellant in obtaining identified and available evidence needed to substantiate her claim.  Service treatment records, service personnel records, relevant post-service treatment records, records from the AFHRA, the Veteran's death certificate, and lay statements have been associated with the record.  

When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2016).  The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record.  Here, during the Board hearing, the appellant was informed as to the basis for the RO's denial of her claims, and she was informed of the information and evidence necessary to substantiate each claim.  Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103.

Because there is no indication in the record that additional evidence that would possibly substantiate the claim is available and unassociated with the file, the Board concludes that VA has satisfied its duty to assist.

Governing Law

Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.  In determining whether a service-connected disability contributed substantially or materially to death, the evidence must show that it combined to cause death or that it aided or lent assistance to the production of death.  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 C.F.R. § 3.312(c)(1); See Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994).

In general, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability.  In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions.  38 C.F.R. § 3.312(c)(2).

A disability present at the time of the Veteran's death may be service-connected if the facts establish that the disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury or disease in active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Generally, to establish a right to compensation for a present disability, the claimant must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

A Veteran who served on active duty in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 (Vietnam War Era) shall be presumed to have been exposed to an herbicide agent during active service, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a).  Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. §§ 3.307(a)(6)(iii), 3.313.  Furthermore, there is a presumption of service connection for a Veteran who was exposed to an herbicide agent during active service and is diagnosed with a qualifying disability, such as prostate cancer, that manifested to a compensable degree at any time after service, unless there is affirmative evidence to show that the disease is not related to exposure to an herbicide agent.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e).  

The Board notes that there are no statutory or regulatory presumptions regarding herbicide exposure in Thailand.  However, VA will presume that a Veteran who served in Thailand during the Vietnam War Era was exposed to herbicide agents if: (1) the Veteran was in the Air Force, (2) the Veteran served at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and (3) the Veteran served as a security policeman, security patrol dog handler, or member of a security police squadron, or otherwise served near a base perimeter, as shown by the Veteran's military occupational specialty (MOS), daily work duties, performance evaluations, or other credible evidence.  M21-1, Part IV, Subpart ii, Ch. 1(H)(5)(a).

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Analysis

The Appellant alleges that her husband's terminal prostate and rectal cancers were caused by his exposure to herbicides during one or more secret missions inside Vietnam. The Appellant also alleges that the Veteran's in-service rash demonstrates that he was exposed to herbicides in service.

Service personnel records indicate that the Veteran served on active duty in the Air Force from September 1964 to September 1968 before being honorably discharged.  He was stationed in Taiwan from December 1966 to January 1968.  The Veteran was stationed for Temporary Duty (TDY) at the U-Tapao Royal Thai Air Force Base in Thailand from April to July 1967.  The Veteran's MOS was Aircraft Fuel Specialist.  The records do not mention any service in Vietnam or its waters offshore.

The Veteran's service treatment records are negative for complaints, diagnoses, or treatment related to cancer.  For example, the September 1964 entrance examination noted no defects of the genitourinary system, and the Veteran was found qualified for enlistment. An August 1966 medical examination noted no defects and on the Report of Medical History the Veteran stated he was in good health. The Veteran's August 1968 separation examination noted no defects of the genitourinary system, and the Veteran was ultimately qualified for separation. There is a June 1967 record from the U-Tapao base hospital noting treatment for a rash on the Veteran's hands and arms. The Veteran was diagnosed with Dyshidrosis and prescribed hydrocortisone for treatment. There was no indication that the rash was related to cancer.  

On his March 2001 application for VA pension benefits, the Veteran stated he served in Vietnam from 1966-67.

Private medical treatment records show that the Veteran was first diagnosed with prostate cancer in 2006 and later diagnosed with rectal cancer in 2007.  The claims file shows no complaints or treatment for cancer symptoms prior to 2006.
 
In April 2007, the Veteran filed a service connection claim for prostate cancer, asserting that his disability was "due to herbicide exposure in Vietnam."  The Veteran passed away in March 2008.  According to his March 2008 death certificate, the Veteran's immediate cause of death was carcinoma of the rectum, unknown cell type.  In July 2012, the coroner issued an updated death certificate listing the immediate causes of death as carcinoma of the rectum, unknown cell type and adenocarcinoma of the prostate.  In April 2008, the Appellant filed an application for Dependency and Indemnity Compensation, claiming service connection for the cause of her husband's death and accrued benefits (the Board denied the accrued benefits claim in its October 2012 decision).

The record includes supporting statements from two of the Veteran's friends.  In his June 2009 statement, S. C. stated that he knew the Veteran since high school and that he knew the Veteran went to Vietnam because the two often talked about Vietnam.  In his November 2012 statement, H. J. stated that he served in Vietnam, and after meeting the Veteran in 1998, the two soon began talking about their experiences in Vietnam.  H. J. stated that the Veteran shared with him stories of his missions in Vietnam and how they traumatized him.  

The Appellant has also offered various statements in support of her contentions.  In her VA Form 9 Appeal, the Appellant wrote, "My husband did go to Vietnam, but it was on a secret mission, so I do not have a record of it."  In her August 2013 Statement in Support of Claim, the Appellant wrote, "On several occasions, I personally overheard conversations between my husband and one of his friends discussing 'secret missions' as part of my husband's job going into Vietnam from Thailand."  At the June 2012 Board hearing, the Appellant testified, "My husband told me that he went to Vietnam, but it was on a private mission, an op some call it, and he wasn't supposed to talk about it, tell nobody about it he said, but he did go."  In her November 2012 Statement in Support of Claim, the Appellant wrote, "I believe my husband came in contact with herbicides while in Vietnam because he had a rash on his face, it was a dry rash. He would never go to the doctor for it.  He would always wash it down and put oils and lotion on it every day."  

In September 2013, an archivist at the AFHRA responded to an RO inquiry regarding the Veteran's service. In citing Air Force records, the archivist noted that while the Veteran's squadron supported operational missions originating from Thailand, they did not participate in any secret missions as "there were no secret missions to South Vietnam originating from U-Tapao, with the exception of the normal operational classification of 'secret' for the KC-135 air refueling and B-52 bombing aircraft that flew over, but did not land in, Vietnam."  The archivist further noted that at the time, there was no need to spray herbicides around the perimeter for vegetation control as U-Tapao was still under construction and it had no perimeter fence.  Based on his review of the available records, the archivist concluded that "U-Tapao had NO herbicide use at all in 1966 or 1967."

First, as indicated by the Veteran's death certificate, the immediate causes of his death were rectal and prostate cancer.  The Board finds that although these disabilities were present at the time of death, the preponderance of the evidence is against findings that these disabilities were related to service. While prostate cancer is on the list of presumptive diseases associated with herbicide exposure, the competent and probative evidence establishes that the Veteran did not serve in Vietnam or its waters offshore.

The Veteran was certainly competent to state, as he did in his 2001 and 2007 claims, that he had served in Vietnam.  The Board has little doubt that the Veteran believed he was in Vietnam. However, there is no indication in the Veteran's service records that he served in Vietnam or its offshore waters, or that he was sent on a secret mission to Vietnam at any point during his service. The Veteran's service personnel records do not confirm missions or service in Vietnam. The RO made multiple attempts to ascertain whether the Veteran was sent to Vietnam on a secret mission that otherwise was not documented in his service personnel file, but it was unable to locate any such records. The AFHRA archivist reviewed detailed records documenting the activities of the Veteran's squadron, and concluded that the Veteran's squadron did not go on secret missions. Further, the types, places and circumstances of the Veteran's service do not support a finding that the Veteran served in Vietnam. For these reasons, the Veteran's reports that he was sent on secret missions to Vietnam, to include his reports to his wife, S. C., and H. J., are inconsistent with the remaining evidence of record. Thus, the Board finds that the Veteran is not a credible historian with respect to his reports of secret missions in Vietnam, and concludes that such reports are not credible and have no probative value.  

The Board also finds that the Appellant, as well as S. C. and H. J. are competent to report what they heard the Veteran say, and the Board finds those reports credible.  However, none of these lay witnesses have any personal knowledge of the Veteran's activities in service beyond what they heard from the Veteran. Thus, the Appellant, S. C., and H. J. are not competent to attest to whether the Veteran served in Vietnam, and therefore, such reports have no probative value.

For these reasons, there is no competent and credible evidence to show that the Veteran had actual service in Vietnam.  Therefore the presumption of herbicide exposure in Vietnam is not warranted, and the presumption of service connection based on herbicide exposure in Vietnam does not apply. See 38 C.F.R. § 3.307.  

Second, the evidence does not show that the Veteran was otherwise exposed to herbicides in service, to include in Thailand.  Service personnel records show that throughout his time in the Air Force, to include his time in Thailand, the Veteran's MOS was that of Fuel Specialist. An October 1967 Performance Report evaluating the Veteran's performance between  September 1966 and September 1967 (including the period he was TDY in Thailand) described the Veteran's duties as, "Refuels and defuels assigned and transient aircraft with jet fuel, avfuel, oils, and demineralized water; records stock fund reimbursable and cash transactions; maintains quality control of fuels and oils; operates various types and models of aircraft refueling equipment; performs operator's preventative maintenance on such equipment; and complies with existing fire, safety, and security directives." There are indications that the Veteran's duties put him on the base perimeter. Further, there is no lay argument from the Veteran during his lifetime or from the Appellant that the Veteran worked on or near the base perimeter at U-Tapao. The Board finds that although the Veteran was a member of the Air Force who served at U-Tapao during the Vietnam War Era, he was not a security policeman, security patrol dog handler, or member of a security police squadron, nor did he otherwise serve on or near the base perimeter. Thus, the Board concludes that exposure to herbicides in Thailand may not be presumed.  See M21-1, Part IV, Subpart ii, Ch. 1(H)(5)(a). There is no indication that the Veteran was otherwise exposed to herbicides while serving in Thailand.  Therefore, herbicide exposure in Thailand is not shown.

Further, the evidence does not show that the Veteran was otherwise exposed to herbicides in service. The Veteran did complain about, and received treatment for, a rash on his arms and hands in June 1967.  Further, the Appellant states that the Veteran had a rash on his face that he treated with oils and lotion on a daily basis, and that the rash was acquired through contact with herbicides in service.  The Appellant is competent to report observing the rash on the Veteran's face, and the Board finds that report credible. However, the determination as to the etiology of the rash is essentially a medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Because the record does not indicate that the Appellant has medical expertise and training, to include in the field of dermatology, the Board finds that the Appellant's lay opinion that the Veteran's rash was caused by contact with herbicides in service is of no probative value. For the above reasons, the alleged in-service event or occurrence of exposure to herbicides in service is not shown by the evidence.

Third, the Veteran's rectal and prostate cancers are not otherwise shown to have been related to service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. There is no other lay argument and there is no medical evidence to indicate that the Veteran's cancer manifested in service or is related to service. The Board notes that because the record is silent for complaints, treatment, or diagnoses of these cancers for decades after discharge from service, it is unlikely the cancer manifested in service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it is proper to consider the Veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised).  Because there is no evidence to show the Veteran's rectal and prostate cancers are otherwise related to service, service connection on a direct basis is not warranted. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

For the above reasons, the Board concludes that the preponderance of the evidence is against a finding that a disability incurred in or caused by service caused or contributed substantially or materially to the Veteran's death.  As the preponderance of the evidence is against the claim of service connection for the Veteran's cause of death, the benefit of the doubt doctrine is not applicable, and the claim must be denied.  38 U.S.C.A. § 5107(b).  


ORDER

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



____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs