Citation Nr: 1806076 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-22 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1970. He passed away in August 1993 and the appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the appellant's claim of service connection for the cause of the Veteran's death. Jurisdiction of the claim was subsequently transferred to the RO in Columbia, South Carolina. In January 2017, the appellant testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of her testimony is associated with the claims file. FINDINGS OF FACT 1. The Veteran was stationed at Kunsan Air Base (AB) in Korea from January 28, 1968 to June 5, 1968 as part of Prime BEEF deployment in support of Combat Fox Operations; this was his only foreign service. 2. The Veteran is not shown to have served in the Republic of Vietnam or any other designated area where the service department has determined that herbicide agents were used, and he is not shown to have been otherwise exposed to dioxin based herbicides during service. 3. The Veteran died in August 1993; the certificate of death and corresponding autopsy report list his immediate cause of death as acute myocardial infarction; and, the autopsy report indicates that arteriosclerotic cardiovascular disease (heart disease) was a contributing cause of death. 4. The Veteran did not have any service-connected disabilities during his lifetime, and his death-causing heart disease was not shown during service or within the first post-service year, and is not otherwise shown to be related to any disease or injury in service, to include claimed in-service exposure to dioxin-based herbicides. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Generally, notice for a cause of death claim must include: (1) a statement of the Veteran's disabilities, if any, that were service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service-connected. The content of the notice letter depends upon the information provided in the claimant's application. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In correspondence dated August 2011, the RO notified the appellant of information and evidence necessary to substantiate her cause of death claim; information and evidence that VA would seek to provide; information and evidence that the appellant was expected to provide; and the process by which disability ratings and effective dates are established. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has adequately assisted the appellant with respect to her claim for benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records and personnel records have been associated with the record. His certificate of death and autopsy report have also been associated with the claims file. The RO requested, and received, information from the Joint Services Records Research Center (JSRRC) indicating that the Veteran's unit in Korea was not stationed on or near the DMZ while he was there. Additionally, at the appellant's January 2017 hearing, the appellant submitted copies of letters written by the Veteran from Kunsan AFB in February 1968, March 1968 and April 1968 along with a waiver of review of that evidence by the Agency of Original Jurisdiction. The evidence has been associated with the claims file and has been reviewed by the Board. There is no outstanding evidence identified by the appellant with respect to this claim. II. Cause of Death The appellant seeks service connection for the cause of the Veteran's death. She asserts that her late husband was exposed to tactical herbicides during his service in Korea from January 1968 to June 1968, and that his death-causing heart disease resulted from that exposure. Service connection may be granted for the cause of the Veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 C.F.R. § 3.312(a). A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In the present case, the cause of death listed on the Veteran's death certificate was acute myocardial infarction. The corresponding autopsy report lists arteriosclerotic cardiovascular disease as an underlying cause. Certain chronic diseases, such as cardiovascular (heart) disease, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). At the time of the Veteran's death, service connection was not in effect for any disabilities; and, it is undisputed that the Veteran's heart disease was first incurred many years following discharge from service. The appellant asserts, however, that the Veteran was exposed to Agent Orange during service in Korea and that the Veteran's death-causing heart disease was incurred as a result of such exposure. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Effective February 24, 2011, the regulations extended the presumption of exposure to Agent Orange to Vietnam-era veterans who served in a unit determined by VA or the Department of Defense (DoD) to have operated in the Korean Demilitarized Zone (DMZ) between April 1, 1968 and August 31, 1971. 38 C.F.R. §§ 3.307(a)(6)(iv). Most recently, the regulations have extended the presumption of herbicide exposure to individuals who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned 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. ''Regularly and repeatedly operated, maintained, or served onboard C-123 aircraft'' means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 U.S.C. 1116(a)(3); 3.307(6)(v). In addition, VA's Compensation Service has determined that a special consideration of exposure to herbicide agents should be extended on a facts found basis, but not presumed, for certain Air Force veterans whose regular duties placed them on the perimeter (such as a security policeman or security patrol dog handler, for example) of specifically designated Royal Thai Air Force Bases (RTAFBs) in Thailand. In this case, the appellant does not assert, and the evidence does not show, that the Veteran served in Vietnam or Thailand; or, that he regularly and repeatedly operated, maintained, or served onboard C-123 aircraft while stationed in Korea. Rather, she asserts that her late husband should be presumed to have been exposed to tactical herbicides because he served on or near the DMZ in Korea between January and June 1968. Personnel records show that the Veteran was assigned to the 840th Civil Engineer Squadron at Lockbourne AFB in Ohio. His job duties were that of an electrician. He was deployed to Kunsan Air Base in Korea from January 28, 1968 to June 5, 1968 to assist in Operation Combat Fox to support Prime BEEF (Base Engineer Emergency Force). Letters from the Veteran to his parents, post-marked in February 1968, March 1968, and April 1968 show that the Veteran served at Kunsan Air Base and that he was assigned to build additional tent cities to house additional troops on base. The letters also show that the Veteran worked in the electric shop on base, the NCO club, and the Officer's club. He also converted one of the other buildings into additional barracks. The letters do not show that the Veteran served on or near the DMZ. Appropriate development was undertaken to determine whether the Veteran's service in Korea qualifies under the presumption of tactical herbicide exposure. In January 2012, the JSRRC was asked to research the Veteran's unit for the period of time he served in Korea. In a Defense Personnel Records Information Retrieval System (DPRIS) memorandum, the JSRRC responded that the unit research did not show that the Veteran's unit performed any duties on or near the DMZ; or, that the Veteran's unit traveled to or near the DMZ. The appellant asserts that personnel records and the copies of the letters she submitted support a finding that the Veteran served on or near the DMZ. While the letters and personnel records certainly confirm the Veteran's presence in Korea, and more specifically, Kunsan Air Base, they do not show that the Veteran served on or near the DMZ during service in Korea between January and June 1968. The Board places greater weight on the findings of the JSRRC which are based on documented research of objective unit records by personnel who specialize in the field of service-record research, as well as a review of the same personnel records to which the appellant cites as evidence to support her claim. In summary, the appellant's assertions that the Veteran served on or near the DMZ in Korea between January and June 1968 are unsubstantiated, and it is undisputed that the Veteran neither served in Vietnam nor Thailand. Accordingly, the Veteran is not entitled to the presumption of herbicide exposure. 38 U.S.C. §1116; 38 C.F.R. §§ 3.307(a)(6)(iii)-(v); 3.309(e). Likewise, while the appellant is not otherwise precluded from establishing service connection based on in-service herbicide exposure on a direct basis, she has not provided any evidence to suggest that the Veteran was so exposed. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The applicable laws and regulations provide that if a veteran was exposed to herbicides in service, certain enumerated diseases, including heart disease, will be presumed to be the result of such exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313. While the Veteran's death-causing heart disease is one of diseases which is presumed to be due to in-service dioxin based herbicide exposure, there is no competent and credible evidence of in-service exposure to dioxin based herbicides in this case. See 38 C.F.R. § 3.309(e). The Veteran served during the Vietnam era, but the Veteran's service in Korea between January and June 1968 does not qualify under one of the presumptions of herbicide exposure, and actual exposure has not been demonstrated. Moreover, the appellant has not provided competent statements of direct exposure to dioxin based herbicides, and the Veteran provided no such competent statements prior to his death. The preponderance of the evidence weighs against the claim in this case. The appellant has not shown that the Veteran was exposed to dioxin based herbicides during service, and he is not otherwise entitled to a presumption of herbicide exposure. Because in-service exposure to dioxin-based herbicides is not shown, the Veteran is not entitled to the presumption of service connection for heart disease under 38 C.F.R. § 3.309(e). Likewise, the appellant has not shown the existence of any relationship between the Veteran's death-causing heart disease and service. For these reasons, the preponderance of the evidence is against the claim and service connection for the cause of the Veteran's death is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs