Citation Nr: 1705796 Decision Date: 02/27/17 Archive Date: 03/03/17 DOCKET NO. 12-26 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from November 1965 to October 1969. The Veteran died in April 1995, and the appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 determination by a Regional Office (RO) of the Department of Veterans Affairs (VA). All records on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed. FINDINGS OF FACT 1. The Veteran died in April 1995, and the immediate cause of death was myocardial infarction, and the significant condition contributing to death was heart disease. 2. At the time of the Veteran's death, service connection was in effect for no disability. 3. The evidence shows that the Veteran did not serve in Vietnam during the Vietnam era; the Veteran did not serve as a security policeman, security patrol dog handler, or member of the security police squadron during his service in Thailand; the Veteran did not otherwise serve near the base perimeter pursuant to his daily work duties during his service in Thailand; the Veteran was not otherwise exposed to an herbicide agent or herbicides during service; and, the Veteran's heart disease and myocardial infarction were not otherwise etiologically related to service. 4. A disease incurred in or aggravated by service did not contribute substantially or materially to cause or accelerate the Veteran's death. CONCLUSION OF LAW Myocardial infarction and heart disease, the immediate and contributory 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 Duties to Notify and Assist VA has a duty to provide notification to the appellant with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). Regarding the issue of entitlement to service connection for the Veteran's cause of death, VA has a duty to 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). Specifically, notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his 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 by letter in April 2011. The appellant was notified of how to substantiate the claim for service connection for the Veteran's cause of death, to include the explanations required under Hupp. The appellant was also provided information regarding the allocation of responsibility between the appellant and VA, and information on how VA determines effective dates. The Board acknowledges that the April 2011 letter did not notify the appellant as to how VA determines disability ratings. However, remand of the case to provide the appellant with information on how VA determines disability ratings would not possibly result in the provision of new information to substantiate the appellant's claim. As such, remand of the case for notice as to how VA determines disability ratings is not warranted. For these reasons, the Board concludes that VA has satisfied its duty to notify. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment and personnel records, relevant post-service treatment records, and lay statements have been associated with the record. In this case, VA is not required to obtain a VA medical opinion as to the etiology of the Veteran's heart disability. As discussed below, no in-service herbicide exposure is shown. Therefore, it is not necessary for VA to obtain an opinion as to whether the Veteran's heart disability was related to the alleged exposure to herbicides, as this in-service event has not been established. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (VA examination is necessary when there is competent evidence of a current disability or persistent or recurrent symptoms thereof; establishment of an in-service event, injury or disease; and indication that the current disability may be associated with an in-service event). Because there is no indication in the record that any other 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. Service Connection for Veteran's Cause of Death 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 the 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 also 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 may be service-connected if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, to establish a right to compensation for a present disability, a veteran 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). Here, the appellant contends that the Veteran was exposed to an herbicide agent or commercial herbicides in service, that his heart disability was related to his in-service exposure, and that his heart disability caused or contributed substantially or materially to the Veteran's cause of death. The Veteran's certificate of death states that the Veteran died in April 1995 at his residence. The immediate cause of death was myocardial infarction, with onset immediately prior to death, and the myocardial infarction was a consequence of heart disease. The Veteran was not service-connected for a disability at the time of his death. A Veteran who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to an herbicide agent. 38 C.F.R. §§ 3.307, 3.309. Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina) is deemed to be associated with exposure to an herbicide agent, under current VA regulation. 38 C.F.R. § 3.309(e). The record includes an undated VA Memorandum, citing to the Project CHECO Southeast Asia Report: Base Defense in Thailand, that states that there are no records of tactical herbicide spraying in Thailand after 1964. While the Thailand CHECO Report does not report the use of tactical herbicides on allied bases in Thailand, it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Therefore, based on this VA Memo, if a Veteran's military occupational specialty or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. The Memo noted that security police units were known to have walked the perimeters, especially dog handlers. The Memorandum states that only commercial herbicides that would have been approved by the Armed Forces Pest Control Board were used within the Thailand base, such as small-scale brush or weed clearing activity along the flight line or around living quarters. The Memorandum reiterated that there are no records of such activity involving tactical herbicides. See also M21-1, Part IV, Subpart ii, 1.H.5 (providing that herbicides exposure is conceded if the Veteran served as a security policeman, security patrol dog handler, or member of the security police squadron during his service in Thailand, or if the Veteran otherwise served near the base perimeter pursuant to his daily work duties during his service in Thailand or pursuant to performance evaluation reports or other credible evidence). First, the Board acknowledges the appellant's initial report in her April 2011 claim that the Veteran served in Vietnam, and the Board acknowledges that the Veteran often told the appellant that he flew mission into Vietnam, as she noted in her December 2011 notice of disagreement. However, there is no probative evidence to confirm that the Veteran had service in Vietnam. The Veteran's Air Force Form 7 shows that the Veteran had foreign service in Thailand at the Nakhon Phanom Royal Thai Air Force Base from November 1968 to October 1969. There is no indication in the Veteran's service personnel records that he served in Vietnam at any time. Because the report that the Veteran served in Vietnam is inconsistent with the remaining evidence of record, including the credible service personnel records, which affirmatively shows that the Veteran served in Thailand, but not Vietnam, the Board finds that the argument that the Veteran served in Vietnam is not credible. For these reasons, the report that the Veteran served in Vietnam has no probative value. Second, the appellant contends that the Veteran's heart disability was related to exposure to herbicides (non-tactical herbicides) or an herbicide agent (tactical herbicides) during his service in Thailand. The appellant essentially argues that the Veteran's work duties were in close proximity to the base perimeter at Nakhon Phanom Royal Thai Air Force Base, and that therefore exposure to herbicides should be presumed pursuant to M21-1, Part IV, Subpart ii, 1.H.5. The appellant argues that as a weapons mechanic in Thailand, the Veteran would have served "near the perimeter of the base, as ammunition dumps, and the aircraft bunkers were near the perimeter, and as a weapons mechanic, this would have been his normal work environment." However, the evidence does not show that the Veteran was exposed to herbicides or an herbicide agent in Thailand. First, his service personnel records do not show that the Veteran served as a security policeman, security patrol dog handler, or member of the security police squadron during his service in Thailand, and there is no argument by the appellant and no indication in the service personnel records that the Veteran's duties included weed clearing with herbicides. The Veteran's Air Force Form 7 shows that the Veteran served at the Nakhon Phanom Royal Thai Air Force Base in Thailand from November 1968 to October 1969, and that he served as a weapons mechanic during this time. Also, the Veteran's DD-214 shows that his MOS was weapons mechanic. There is no indication in the Veteran's service personnel records that the Veteran's duties as a weapons mechanic required regular close proximity or contact with the base perimeter. Further, the November 2012 DPRIS response confirms that the Veteran's munitions maintenance unit history was negative for herbicides exposure, and that history did not report that the Veteran or the unit members' duty locations were in proximity to the base perimeter. The Board acknowledges that the appellant believes that the Veteran's duties as a weapons mechanic would have placed him routinely on the flight line, in the hangers, and in the munitions maintenance and storage areas, and that the Veteran was exposed to herbicides in these areas. The appellant argues that because the Veteran's unit was the munitions maintenance squadron, "duty along the perimeter of the base should be assumed, as the weapons stores were usually removed from the operational areas of the base." The Board also acknowledges that the Veteran believed he was exposed to herbicides or an herbicide agent in service. See October 2012 appellant statement. The Board also acknowledges the appellant's argument that these areas in which the Veteran worked was within a "500 meter buffer zone" from the base perimeter. See September 2012 Form 9 statements. However, first, though the appellant references the Project CHECO Memorandum, to a paper by Phil Carroll, and to excerpts from a report to Congress to make an argument that the Veteran was exposed to herbicides, there is no affirmative evidence of record to support her contention that the Veteran's specific places, types, and circumstances of service, to include his work duties, would have exposed him to herbicides at the base perimeter or between the main runway and the taxiway, which were the areas in which these references stated were sprayed with herbicides. Further, the maps of the base that the appellant submitted do not show where the Veteran would have served as part of his duties as a weapons mechanic. Indeed, there is no affirmative evidence in the Veteran's service records that the Veteran's work duties would have placed him in or near defoliated areas on the base, including on the flight line and at the base perimeter. There is also no indication that the appellant herself has specific knowledge or training regarding where the Veteran and the Veteran's unit would have worked on the base in Thailand. For these reasons, the Board finds that the appellant's argument that the Veteran's duties as a weapons mechanic would have placed him routinely on the flight line, in the hangers, and in the munitions maintenance and storage areas (and therefore that he allegedly served close to base perimeter), is speculative at best and has no probative value. Second, though the appellant references a paper by Phil Carroll and excerpts of a report to Congress to show that tactical herbicides were stored at Nakhon Phanom Royal Thai Air Force Base, there is no evidence that the Veteran's work duties would have required him to handle tactical herbicides, to include tactical herbicides in storage. Further, the appellant references an Army Field Manual regarding Tactical Employment of herbicides to argue that the Veteran was exposed to herbicides in a 500 meter buffer zone from the base perimeter. This manual does not apply to the use of non-tactical herbicides, which, as discussed above, were the type of herbicides used in Thailand. Therefore, this manual providing information regarding a 500 meter buffer zone does not help to substantiate the appellant's claim that there is a 500 meter buffer zone around non-tactical herbicide sprayed areas. The Board notes that there is no presumption of "secondary exposure" to tactical herbicides based on being in proximity to, or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Further, aerial spraying of tactical herbicides in Vietnam did not occur everywhere in that country and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam. There are no clinical studies demonstrating harmful health effects for any such secondary or remote herbicide agent contact that may have occurred. For these reasons, the Veteran's places, types, and circumstances of service do not support a finding, and there is no affirmative evidence to show, that the Veteran served near the base perimeter pursuant to his daily work duties during his service in Thailand. Thus, exposure to non-tactical herbicides in Thailand may not be presumed. Because the Veteran did not serve in Vietnam, exposure to an herbicide agent may not be presumed. Further, there is no indication in the record or argument by the appellant that the Veteran was otherwise exposed to an herbicide agent or herbicides in service. Thus, the in-service event of exposure to an herbicide agent or herbicides is not shown. The Veteran's heart disability is not presumed to have incurred in service. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a); 3.309(e). The Board acknowledges that the record includes a May 2014 letter from the appellant's doctor, Dr. R. M. The Board acknowledges that this letter was received by VA after certification of the appeal to the Board. As discussed below, Dr. R. M.'s medical opinion is entirely based on a non-probative finding that the Veteran was exposed to an herbicide agent in service. However, as discussed above, the Board has found that there is no probative evidence of in-service exposure to an herbicide agent. The RO noted the same in its February 2013 Formal Finding of Insufficient information to Concede Herbicide Exposure. Thus, remand of the case for the Agency of Original Jurisdiction (AOJ) to review this May 2014 letter in the first instance would not possibly result in a different outcome and would only serve to put additional burdens on VA without any benefit flowing to the appellant. Thus, the Board concludes that it is not necessary for the Board to attempt to obtain a waiver from the appellant of AOJ review of this May 2014 letter in the first instance under 38 C.F.R. § 20.1304, or to remand the case to the AOJ for issuance of a supplemental statement of the case. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). In this May 2014 letter, Dr. R. M. essentially argued that the Veteran was exposed to an herbicide agent, and she stated that on review of layouts of the airstrip and base, she believes that the Veteran's "living situation" would have been in very close proximity to the base perimeter. Dr. R. M. also stated that "it is very likely that the Agent Orange would have come into the actual living or work zone with wind drifts at times. [The Veteran] may also at times have had to cross the perimeter, perhaps to work on something that 'failed' outside the main area." There is no indication that Dr. R. M. observed or otherwise has direct knowledge of the specific location on base of the Veteran's work duties or living quarters during his service in Thailand. Indeed, it is unclear based on Dr. R. M.'s referenced airstrip aerial view why the Veteran's "living situation" was in close proximity to the base perimeter. There is also no indication that Dr. R. M. has scientific knowledge or training as to the extent to which herbicides can travel in the wind. For these reasons, the Board finds that Dr. R. M. is not competent to provide reports as to how the Veteran may have been exposed to an herbicide agent in Thailand, and that such reports are speculative at best. Further, Dr. R. M. argues that the Veteran was exposed to an herbicide agent, Agent Orange; however, as noted above, the Memorandum for the Record regarding herbicides use in Thailand shows that tactical herbicides were not used in Thailand. For these reasons, Dr. R. M.'s belief that the Veteran was exposed to an herbicide agent in Thailand is speculative at best and has no probative value. It follows that the May 2014 medical opinion that the Veteran's heart disability was related to exposure to an herbicide agent in Thailand is speculative at best and has no probative value. The Veteran's heart disability is not otherwise shown to have been caused or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The evidence indicates no event, injury, or disease in service that could have caused or aggravated a heart disability. The Board also notes that because the record is silent for treatment or complaints for heart disease for decades after service, it is very unlikely that this disability began 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 he now raised). For example, the appellant stated in her December 2011 notice of disagreement that the Veteran had never been treated for heart disease prior to this death. Also, there is a normal EEG dated October 1967 in the service treatment records, and the Veteran's September 1969 separation examination shows no heart defects or complaints on separation. Because an in-service incurrence or aggravation of a disease or injury is not shown, the second Shedden element is not met, and service connection for the Veteran's heart disability is not warranted on a direct basis. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In denying this claim, the Board does not intend to diminish the Veteran's service to his country. However, 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 Veteran's cause of death is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs