Citation Nr: 1803565 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-09 402A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan 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 C.S. De Leo, Associate Counsel INTRODUCTION The Appellant is the surviving spouse of the Veteran who served on active duty from June 1953 to January 1958, and June 1958 to June 1974. He passed away in February 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. The appellant resides within the jurisdiction served by the VA Regional Office (RO) in Detroit, Michigan. In October 2017 the Appellant presented testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At the hearing the Appellant requested that the record be left open for 30 days to allow submission of additional evidence in the form of letters or such from the Veteran identifying his location while serving in Thailand. FINDINGS OF FACT 1. The Veteran passed away in February 2011; his certificate of death lists his cause of death as advanced metastatic prostate cancer. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. During active service, the Veteran was stationed at the Royal Thai Air Force Base Takhli, Thailand. 4. The evidence is at least evenly balanced as to whether the Veteran was exposed to herbicides during his service in Thailand. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for the cause of the Veteran's death have all been met. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Analysis The appellant is claiming entitlement to service connection for the cause of the Veteran's death. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.§ 1310 (a); 38 C.F.R. § 3.5 (a)(1). Service-connected disability will be considered as the principal (primary) cause of death when such 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). 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; 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). 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 (a). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires evidence showing (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Veteran meets the requirements for a presumption of herbicide exposure. 38 C.F.R. § 3.307. Several diseases, notably prostate cancer and respiratory cancers (cancers of the lung, bronchus, larynx and trachea) are presumed to be related to herbicide exposure. 38 C.F.R. § 3.309 (e). VA laws and regulations provide that, if a Veteran was exposed to herbicides during service, certain listed diseases, including ischemic heart disease and diabetes mellitus, are presumptively service-connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicides. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). VA now recognizes that tactical or tactical-like herbicides were used on the fenced-in perimeters of military bases in Thailand. See Veterans Benefits Administration (VBA) C&P Service Bulletin (May 2010). Thus, VA has determined that exposure to herbicides will be conceded for veterans whose duties placed them at or near the perimeters of certain Thailand military bases, including Takhli, during the Vietnam era (February 28, 1961, to May 7, 1975), allowing for presumptive service connection of the diseases associated with herbicide exposure. See VA Adjudication Procedures Manual (M21-1) part IV, subpt. ii, ch. 1, sec. H.5.a (change date: November 12, 2015). VA based this determination of evidence contained in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Specifically, the M21-1 provides that if a veteran served with the U.S. Air Force at a specified Royal Thai Air Force Base (RTAFB) as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure is to be conceded on a direct/fact-founds basis. See M21-1, part IV, subpt. ii, ch. 1, sec. H.5.b. Central to this claim is whether prostate cancer, which is noted on the death certificate, is related to the Veteran's service. Service treatment records do not show any findings or symptoms relating to cancer. Rather, the Appellant contends that the Veteran developed cancer as a result of presumed herbicide exposure. 38 C.F.R. § 3.307. As discussed above, certain cancers are presumptive linked to herbicide exposure. 38 C.F.R. §§ 3.307, 3.309. Here, as discussed below, the Veteran's service records show that he was stationed in Thailand. Thus the dispositive question in this case is whether or not while stationed at the air base in Thailand, he was near the perimeter and exposed to Agent Orange. Specifically, service personnel records reflect that the Veteran was stationed at the Takhli Royal Thai Air Force Base (RTAFB) for a period of time during 1966 to 1967. The Veteran's MOS was In-Flight Refueling System Repair Technician, as indicated on several DD 214 reports documenting his discharge from service. The Veteran's service personnel records include orders for temporary duty to attend IFR specialist class dated December 6, 1966. The itinerary provides that on or about December 10, 1966 for approximately 11 days, he traveled from Takhli RTAFB, Thailand, to Kadena Air Base, Okinawa. Thereafter, he returned to Takhli RTAFB. Additionally, a service personnel record titled Chronological Listing of Service also documents the Veteran's duty assignment in Thailand. The record indicates the Veteran was assigned to Detachment 1, 4252 SW, Takhli AB Thailand. The estimated date of arrival is illegible but there is a date identifying a performance report of May 20, 1966. The record also indicates an additional assignment noted as Detachment 1, 4258 SW, RTAFB, Thailand noting the estimated date of arrival as February 2, 1967. The death certificate indicates that the Veteran died in February 2011 and the cause of death was advanced metastatic prostate cancer. Thus, if the Veteran was exposed to herbicides in Thailand, the Appellant would be entitled to service connection for the cause of the Veteran's death, in that prostate cancer would be presumed to be related to his military service. Cf. VA Adjudication Procedures Manual, M21-1, IV.iii.2.A.1.a,b (there is a reasonable possibility of service-connected death if the death certificate lists one of the Veteran's service connected disabilities as a contributory cause of death, and DIC should be granted when the contributory cause of death listed on the death certificate matches one or more of the deceased Veteran's service connected disabilities). The record reflects that the Veteran served a tour of duty in Thailand and that his MOS was In-Flight Refueling System Repair Technician. The Appellant contends that the Veteran explained to her that while stationed in Thailand his duties included those of aircraft mechanic, and she asserts that prostate cancer, a presumptive condition, was the result of Agent Orange exposure while serving in Thailand and thus the cause of the Veteran's death. Specifically, during the Board hearing, the Appellant testified that the Veteran was a mechanic on KC-135s, B-52s, becoming a First Sergeant in his later years. During this time, the Appellant stated he was first stationed in England, thereafter Travis Air Force Base, K.I. Sawyer, and eventually Italy. In between this time, the Appellant explained he was stationed in Thailand for 10 months and his MOS was aircraft mechanic. She explained they were married in England in 1956 and while he was in Thailand she and their daughter lived in England. The Appellant further stated that the Veteran told her they were located on the outskirts of the air field, which the Appellant described as working "near the fence line." She went on to state that he communicated this to her when he returned home but they also corresponded by letter while the Veteran was on assignment in Thailand, which possibly showed his exact location or something stating where he was staying. The Appellant explained however they moved many times over the years and she was uncertain if any of the letters remained in her possession. The Appellant further explained that in a statement dated in 2005, (June 2005 VA Form 21-4138 Statement in Support of Claim) the Veteran explained that he was stationed at Royal Thai Air Force Base Takhli in Thailand from November 15, 1966 to September 20, 1967. Consistent with the Appellant's testimony, in a June 2005 statement, the Veteran explained that during duty in Thailand he reported for temporary duty to attend a special class on flight refueling at Kadena Air Force Base in Okinawa, Japan. The Veteran stated that he travelled by C-124 aircraft and returned to Thailand after completing training. On the return trip, the Veteran reported landing in Vietnam to change aircraft. The Appellant asserts that these documents, particularly the Veteran's military orders, and his statement, prove that he served near the air base perimeter. Additionally, following the Board hearing, the Appellant also provided a photo sent to her by the Veteran of his location that suggest he was located or working near the perimeter of the base. Thus, the evidence of record establishes that the Veteran served at one of the Thailand air bases, Takhli RTAFB, and that his duties as an aircraft mechanic, refueling aircraft, required work very near the perimeter fence of Takhli RTAFB. The evidence is therefore at least evenly balanced as to whether the Veteran worked near the perimeter of the Takhli air base in Thailand during the Vietnam era, and the reasonable doubt created by this relative equipoise must be resolved in the Veteran's favor. 38 U.S.C.§ 5107 (b); 38 C.F.R. § 3.102. As VA's Adjudication Manual provides that if a veteran who did not have one of the required MOS served otherwise near the air base perimeter as shown by evidence of daily work duties or other credible evidence, herbicide exposure is to be conceded on a direct/fact-founds basis, the Board finds that the Veteran was exposed to herbicides. As the Veteran was exposed to herbicides during his military service, it is presumed that his prostate cancer is related to his military service. As this was the cause of the Veteran's death, with no other contributing factors, entitlement to service connection for the cause of the Veteran's death is warranted. ORDER Entitlement to service connection for the cause of death is granted. ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs