Citation Nr: 1800855 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 13-32 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of death of the Veteran. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1959 to September 1963. The Veteran died in May 2006. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Philadelphia, Pennsylvania. This matter was transferred to the St. Petersburg, Florida RO. The Veteran testified before the undersigned Veterans' Law Judge in a September 2016 Board Hearing at the St. Petersburg RO. A copy of the transcript is of record. FINDINGS OF FACT 1. The Veteran died on May [REDACTED], 2006, of a malignant neoplasm of the prostate with metastases. 2. At the time of death, the Veteran was not service-connected for any disability. 3. The preponderance of evidence supports a finding that the malignant neoplasm of the prostate with metastases was etiologically related to, or the result of, active duty service, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. § 1310, 5103, 5013A (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Dependency and indemnity compensation benefits are payable to the surviving spouse of a Veteran, if the Veteran died as a result of a service-connected disability. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.5 (2017). 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. § 1310 (2012); 38 C.F.R. § 3.312 (2017). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312(a) (2017). A service-connected disability will be considered as the principal, or primary, cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2017). A contributory cause of death inherently is one not related to the principal cause of death. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; 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) (2017); Gabrielson v. Brown, 7 Vet. App. 36 (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 an unrelated disability. In the same category there would be included service-connected disease or injuries of any rating, but of a static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2) (2017). Service connection may be established for a disability resulting from injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110 ,1131 (2012); 38 C.F.R. § 3.303 (2017). For Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending May 7, 1975, service connection may be presumed for certain diseases that become manifest within a particular period after service, based on presumed exposure to herbicide agents. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307, 3.309(e) (2017). An Air Force Veteran who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during that service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(v) (2017). Whenever the Secretary of VA determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for purposes of service connection. 38 U.S.C. § 1116(b)(1) (2012). The Secretary of VA has determined that a positive association exists between exposure to herbicide agents and prostate cancer. 38 C.F.R. § 3.309(e) (2017). The Appellant filed a claim for service connection for cause of death of the Veteran in December 2010. The Appellant claimed the Veteran was exposed to herbicide agents while working on C-123 aircraft in the Philippines. Prior to his death, the Veteran stated he was assigned to the 464th Troop Carrier Wing and was stationed at Clark Air Force Base (AFB) in the Philippines. The Veteran claimed that as an aircraft mechanic, he had to clean herbicide agents off of the aircraft in order to perform the required maintenance. The Veteran stated that the aircraft departed from the Philippines for defoliation missions in Vietnam, and then returned to the Philippines for maintenance. Additionally, the Veteran claimed he received dental treatment while stationed in the Philippines. The Appellant, through representation, reiterated the Veteran's contentions and claimed the Veteran was exposed to herbicide agents while maintaining C-123 aircraft that were used for defoliation missions in Vietnam. The record contains a statement from a fellow Airmen, T.K., which supports the Veteran's statement. T.K. stated that he was stationed with the Veteran at Pope AFB in North Carolina, and that they both went on temporary duty orders in 1962. The Veteran was stationed at Clark Air Force Base in the Philippines while T.K. was stationed in Vietnam. T.K. also stated the C-123 aircraft returned to Clark Air Force Base for maintenance after conducting defoliation missions in Vietnam. Another statement from H.O., stated that the Air Force Historical Agency confirmed that C-123 aircraft from Clark AFB were used for defoliation missions. Although the Veteran's service separation form does not list foreign service or an assignment at Clark Air Force Base, there is evidence which supports the Veteran's own and buddy statements. An October 1960 performance evaluation shows the Veteran maintained C-123 aircraft. An in-service dental treatment record shows the Veteran was stationed at Clark Air Force Base in January 1962. The Veteran's service separation form shows his last duty assignment was with the 464th Organizational Maintenance Squadron. Box 26 of that form shows a good conduct medal was awarded while the Veteran was also assigned to the 464th Combat Support Group. The Veteran's Airman Military Record, AF Form 7, shows he was awarded the Air Force Distinguished Unit Award. The award's citation stated the 464th Troop Carrier Wing, which included the 464th Combat Support Group and Organizational Maintenance Squadron, participated in airlift and defoliation activities in Southeast Asia from November 1961 to May 1963. Box 19 of that form also shows the Veteran was assigned to the 464th Organizational Maintenance Squadron and Tactical Air Command from October 1962 to September 1963. Release from active duty orders from September 1963 show that the Veteran and M.K. were assigned together at the 464th Organizational Maintenance Squadron, and then transferred to the Air Force Reserves together. The Board finds the service dental records indicate that the Veteran was stationed at Clark Air Force Base, and support the Veteran's own and buddy statements. The Board finds the Airman Military Record, service separation form, and performance evaluations indicate that the Veteran regularly and repeatedly maintained C-123 aircraft, and also support the Veteran's own and buddy statements. The Board finds that the unit award citation and Airman Military Record indicate that the C-123 aircraft maintained by the Veteran while assigned to the 464th Organizational Maintenance Squadron were used for defoliation operations in Southeast Asia. Accordingly, the Board finds that the preponderance of the evidence supports a finding that the Veteran was exposed to herbicide agents while maintaining C-123 aircraft in service that were used for defoliation in Vietnam. Therefore, the Veteran is presumed to have been exposed to herbicide agents during service. Because the cause of death was a malignant neoplasm of the prostate with metastases, for which service connection is granted on a presumptive basis, the claim for service connection for the cause of the Veteran's death is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for cause of death of the Veteran is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs