Citation Nr: 1806032 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-37 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant's Daughter ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty as a Colonel at the United States Air Force from April 1944 to August 1972. Unfortunately, he died in September 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction is now with the RO in Seattle, Washington. In October 2017, the appellant's daughter, accompanied by the appellant's representative, presented an argument at a videoconference hearing before the undersigned Veterans' Law Judge. The appellant was not able to attend the hearing due to her health problems. A transcript of the hearing is associated with 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) (2012). FINDINGS OF FACT 1. The Veteran died in September 2011, and the official cause of death was progressive debility and decline (disease associated viruses) and myelodysplasia with contributory conditions of hypertension, coronary artery disease (CAD), prostate cancer, and hypothyroidism. 2. During his lifetime, the Veteran's only adjudicated, service-connected disability was bilateral hearing loss rated as 100 percent disabling effective March 11, 2002. 3. The evidence is at least in equipoise as to whether the Veteran set foot in the Republic of Vietnam; therefore, the Veteran is presumed to have been exposed to herbicide agents therein. 4. The Veteran's CAD and prostate cancer are presumed to be related to his in-service exposure to herbicide agents, and aided or lent assistance to the production of his death. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant's favor, the criteria to establish service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1310, 5107 (2012); 38 C.F.R. §§, 3.102, 3.303, 3.307, 3.309, 3.312, 3.313 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In light of the favorable action taken herein, the Board finds that further discussion of the Veterans Claims Assistance Act of 2000 (VCAA) is not required at this time. Service Connection for Cause of Death - Applicable Laws and Regulations Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). The regulations under 38 C.F.R. § 3.312(c) also provide that: (1) Contributory cause of death is inherently one not related to the principal cause. 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. (2) Generally, 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. (3) Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. (4) There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. In order to be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. A May 2009 fast letter issued by the VA indicated that while the Thailand CHECO Report did not report the use of tactical herbicide agents on allied bases in Thailand, it did indicate sporadic use of non-tactical (commercial) herbicide agents within fenced perimeters. Therefore, if a Veteran's military occupational specialty (MOS) or unit was one which regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicide agents. See Fast Letter 09-20 (May 6, 2009). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (CAD) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kapos's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on the appellant's behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Analysis The appellant seeks service connection for the cause of the Veteran's death. Specifically, she asserts that the Veteran was present in both the Republic of Vietnam, as well as in Thailand during his active duty. VA received a copy of the Veteran's Certificate of Death, which reflects that in September 2011 the Veteran died of progressive debility and decline (disease associated viruses) and myelodysplasia with contributory conditions of hypertension, coronary artery disease (CAD), prostate cancer, and hypothyroidism. As discussed above, presumptive service connection for CAD and prostate cancer is warranted when a veteran was exposed to herbicide agents. The Board notes that a July 2014 VA memorandum determined that the information provided by the appellant along with the Veteran's military records was insufficient to verify whether he set foot in Vietnam; however, after reviewing all the relevant evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran set foot in the Republic of Vietnam during service. Throughout the course of this appeal, the appellant has advanced that during service as an Air Force rescuer, the Veteran landed in Vietnam. In support of this assertion, the Veteran's son who is a Colonel submitted a statement dated December 2011, in which he indicated that his father was stationed at Tachikawa Japan in September 1962 prior to the Vietnam War. His father took command of the 36th Air Rescue Squadron, and when military activities began in Vietnam in 1963, his father's squadron was assigned the task of monitoring the coast of Vietnam. As the war escalated, they were required to provide closer support, to include developing a forward base to operate helicopters out of. The Veteran's son further stated that his father told him stories of his time in Vietnam, how they had to cut the base out of the jungle, laid pierced planking, and set up buildings. He further noted that his father spent time on the base during several trips to oversee the progress. He specifically remembered that on one occasion, his father's superior Colonel D. who was stationed in Hawaii, went together with his father to see the base in Vietnam. The appellant also submitted a statement dated December 2011, in which she indicated that her husband was on the ground in Vietnam in the early to mid-1960s as commander of the 36th ARS. She stated that during this time her husband took numerous trips to Vietnam, where he inspected his troops and worked with his units on the ground in Da Nang and Saigon. She further noted that in 1963, she took a trip with her husband out of Tachiwaka, Japan, where he was stationed, and landed in Saigon, Vietnam, to de-plane during refueling. She indicated that the pilot took the plane on a very steep descent to the runway. She remembered that it was raining that day when they walked into the terminal and they could hear bombs blasting in the distance. The appellant included with her statement a few pages of a book her husband was writing about his life story. The Veteran's book at page 86 reads as follows: "on our first stop we spent two days in Manila, then on to Saigon for a refueling stop where the war was going on and we could hear the "booming" of large guns from the airport." On page 93, the Veteran wrote "I enjoyed a typical airlift mission to deliver two Army helicopters to Vung Taw, Viet Nam. Vung Taw was a resort area...but we couldn't take time to enjoy it. The 62nd had a variety of airlift missions to Saigon, Cameron Bay, De Nang, and other bases in SE Asia." The appellant also submitted a photograph of the Veteran posing with another service-member in what looks like a military base. On the back of it, in handwriting, (which the appellant noted was her husband's handwriting) there is a notation "Danang 1965." The Board observes that the Veteran's military personnel records confirm that the appellant and the Veteran were married while he was in service. During the October 2017 hearing, the appellant's representative noted additional mentions from the Veteran's book where he indicates that he visited Vietnam. For example that he accompanied Colonel D to staff visits in Okinawa, Vietnam, Thailand, and the Philippines. The representative quoted from the book where the Veteran wrote "While in Vietnam, we would also pay a courtesy visit to the headquarters of the Seventh Air Force in Saigon on each trip to review operational problems and corrective actions thereto." The Veteran's military personnel records confirm that the Veteran was attached to the 36th Air Rescue Squadron (Air Recovery Squadron) stationed in Tachikawa, Japan from September 1962 until February 1966; thus he did serve during the Vietnam Era. The Veteran's military personnel record also reflect that he was awarded the Armed Forces Expeditionary Medal (AFEM) under the following authority "AFR 900-10 (Viet Nam)." Persons entitled to receive the AFEM are those who were engaged in "direct support" of such actions. In turn, "direct support" is defined as including the services supplied to the combat forces in the area of operations by ground units, ships, and aircraft. To qualify for the AFEM, the service member must be a "bona fide member[ ] of a unit engaged in the operation." See Exec. Order No. 10977, 26 FR 11471 (4 December 1961). the Board notes that the Veteran, in this instance, would have qualified for the AFEM, without ever actually setting foot on the ground in Vietnam himself; however as he was attached to the 36th Air Rescue Squadron and authority under which he received the medal which specifically noted Vietnam, the Board finds highly persuasive the argument that he set foot in Vietnam while in service. As this determination has been made, the Board finds it unnecessary to reach the question of any herbicide agent exposure in Thailand. At any rate, aside from the Veteran's receipt of the AFEM, the appellant and their daughter have competently and credibly presented evidence and argument of the Veteran setting foot in Vietnam to perform rescue missions. During his lifetime, the Veteran, himself, wrote a book specifically describing his missions in Vietnam. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board finds, after resolving any reasonable doubt in the appellant's favor, that the Veteran set foot in Vietnam while in service. Per the September 2011 Certificate of Death, CAD and prostate cancer, as relevant here, were contributory disabilities leading to the Veteran's death. As determined above, the Veteran set foot in Vietnam during service, and he is therefore presumed to have been exposed to herbicide agents therein. As stated, CAD and prostate cancer are diseases associated with herbicide agent exposure. Since CAD and prostate cancer were listed as contributory conditions which led to the Veteran's death, the only question remaining is whether CAD and prostate cancer substantially or materially contributed to the Veteran's death. Here, the Board finds that CAD affected a vital organ (the heart) and prostate cancer, which was active at least at some point during the Veteran's life are noted to be contributory to "debility and decline (disease associated viruses)," and absent any evidence to the contrary, the Board finds that to his CAD and prostate cancer at the very least aided or lent assistance to the production of his death. Based on the body of evidence as a whole, the criteria to establish service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board is appreciative of the Veteran's faithful, meritorious, and honorable service to our country. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs