Citation Nr: 1802351	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  16-35 168A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for the cause of death.


REPRESENTATION

Appellant represented by:	Douglas E. Sullivan, Esq.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Cruz, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1971 to May 1975.  He died in December 2009.  The appellant is the Veteran's surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In October 2017, the appellant appeared at a Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2012).


FINDINGS OF FACT

1.  The Veteran's active military service includes foreign service at U-Tapao Royal Air Force Base in Thailand.

2.  The Veteran died in December 2009.  The certificate of death lists the underlying causes of death as pancreatic cancer with METS, left inguinal hernia, constipation, and diabetes mellitus type II.

3.  The Veteran's MOS (military occupational specialty) as an air traffic controller and other duties placed him near the perimeter at U-Tapao Air Force Base in Thailand.

4.  Resolving reasonable doubt in favor of the appellant, the evidence supports a finding that the Veteran served near the perimeters of the U-Tapao Air Force Base in Thailand during the Vietnam Era, and is presumed to have been exposed to herbicides during service in Thailand.


CONCLUSION OF LAW

The criteria for entitlement to service connection for the cause of the Veteran's death have been met.  38 U.S.C. §§ 1110, 1116, 1154, 1310, 5107 (West 2012); 38 C.F.R. §§ 3.102 , 3.303, 3.307(a), 3.309(e), 3.312 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159, requires VA to assist a claimant in obtaining evidence necessary to substantiate a claim.  It also requires VA to notify the claimant and the claimant's representative of any information, medical evidence, or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim.  See 38 U.S.C. 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). Given the positive outcome of the below decision, a discussion of VA's duty to notify and assist is not necessary at this time.  

Service Connection

Pursuant to 38 U.S.C.A § 1310, dependency and indemnity compensation (DIC) benefits are paid to a surviving spouse of a qualifying veteran who died from a service-connected disability.  See 38 U.S.C. § 1310 (West 2012); Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).  A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death.  38 C.F.R. § 3.312(a).  The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto."  38 C.F.R. § 3.312(b).  It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death."  38 C.F.R. § 3.312(c)(1).  

In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310.

Any veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii).  "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. § 3.313 (a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of § 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam).

In addition, recent findings indicate that herbicides were also used in Thailand. In May 2010, VA published a "Compensation & Pension (C&P) Service Bulletin" which establishes "New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea."  In explaining the need for the new procedures, the bulletin noted that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. 

VA determined that a special consideration of herbicide exposure on facts found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases.  It was noted that the majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang.  It was also noted that if a US Air Force Veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicides exposure should be acknowledged on a facts found or direct basis.  This applies only during the Vietnam Era, from February 28, 1961 to May 7, 1975. (See May 2010 C&P Service Bulletin; Project CHECO Southeast Asia Report: Base Defense in Thailand; see also VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C). 

When such a veteran contracts a disease associated with exposure to herbicides under § 3.309(e), including diabetes mellitus type II, that becomes manifest to a compensable degree within the time period specified in 38 C.F.R. § 3.307 (a)(6)(ii), the disease will be presumptively considered to have been incurred in service, even though there is no evidence of it during service.

While all Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to an herbicide agent, here, the appellant claims she is entitled to the presumption of herbicide exposure because her deceased husband was stationed at U-Tapao Royal Air Force Base in Thailand.

The Veteran's military personnel records reflect that the Veteran was stationed at the U-Tapao Airfield in Thailand.  His DD Form 214s and military personnel records reflect that his MOS was air traffic controller.  His duties included working in the air control tower.  The appellant provided a map of U-Tapao Airfield.  The tower was located near the flight line/runway along the perimeter of the base.  Additionally, there is a notation in an Airman Performance Report indicating that he was at times assigned to details outside of his normal duties.  There is no other indication as to what those other duties were, nor what they entailed.  7/19/2016 STR-Medical, at 64, 95; 2/7/2017 Correspondence, at 10.

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. § 5107; 38 C.F.R. § 3.102; 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), citing Gilbert, 1 Vet. App. at 54.

In this case, the Board finds that service connection should be granted for the Veteran's cause of death.  Specifically, the Veteran has verified service in U-Tapao Air Force Base in Thailand during the Vietnam Era.  His MOS placed him near the flight line and the perimeter of the base.  As such, the Board concedes that he was exposed to herbicides during active service.  The record evidence also shows that and underlying cause of death was diabetes mellitus type II.  Diabetes mellitus II is explicitly listed as a disease for which presumptive service connection is granted due to in-service herbicide exposure under 38 C.F.R. § 3.309(e) and therefore service connection is appropriate for that disease.

The Board notes that the record is insufficient to grant service connection for the other underlying causes of death.  However, this is not a bar to granting service connection for his cause of death for DIC purposes in general.  As discussed above, when a claim is one for DIC benefits, a veteran's death will be considered service connected where a single service-connected disability was either the principal or a contributory cause of death.  All causes on death need not be service connected to qualify for DIC benefits- only one.  38 C.F.R. § 3.312.  Therefore, because the Veteran's diabetes mellitus II is presumptively service connected due to herbicide exposure, and because it was an underlying cause of death, service connection for his cause of death should be granted.


ORDER

Service connection for the Veteran's cause of death is granted.




____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs