Citation Nr: 18141777 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 13-15 972 DATE: October 11, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran’s death certificate shows that he died in December 2009 and that the immediate cause of death was respiratory failure due to pneumonia. Diabetes mellitus type II, chronic kidney disease, and cardiomyopathy were listed as contributory causes of death. The certifying physician on the death certificate was one of the Veteran’s primary care providers. 2. At the time of the Veteran’s death, service connection was established for right and left knee traumatic arthritis (both 0 percent disabling). 3. The Veteran served in the Republic of Vietnam during a time in which herbicide exposure is presumptive. 4. The Veteran’s diabetes mellitus type II had manifested to a compensable degree and was a contributory cause of his death. CONCLUSION OF LAW The requirements for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1310 (2012); 38 C.F.R. §§ 3.5(a), 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to July 1970 and from July 1973 to September 1989. He died in December 2009, and the appellant is seeking benefits as his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA). In August 2015, the Board remanded the case to schedule the appellant for a hearing. The requested hearing was held before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing is of record. On the day of the hearing, the appellant submitted additional evidence for which there is an automatic wavier of initial agency of original jurisdiction (AOJ) consideration. See also August 2018 supplemental statement of the case. The undersigned Veterans Law Judge also held the record open for a 30-day period following the hearing to allow for the submission of additional evidence; however, the appellant did not submit any additional evidence during that time. The Board remanded the case for further development in October 2017, and the case has since been returned to the Board for appellate review. Law and Analysis Dependency and indemnity compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A 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). A contributory cause of death is inherently one not related to the principal cause and must be shown to have contributed substantially or materially to death; combined to cause death; or 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). 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. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death 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. 38 C.F.R. § 3.312(c)(3). 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. 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. 38 C.F.R. § 3.312(c)(4). In determining whether the disorder that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran who served in the Republic of Vietnam between January 9, 1962, and 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 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(d). “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. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), including diabetes mellitus type II manifested to a compensable degree at any time after service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is warranted for the cause of the Veteran’s death. The appellant and her representative clarified during the Board hearing that she is contending that the Veteran had type II diabetes mellitus that was related to his military service and was a significant contributing factor to his death. Specifically, she has contended that he had herbicide exposure from performing his duties as a crew chief while stationed at Kadena Air Base in Okinawa, Japan, because he went to U-Tapao Royal Thai Air Force Base (RTAFB) during that assignment for work that placed him near the perimeter of that base. She has also contended that the Veteran told her that he had planned routes that required him to stop in Vietnam to repair B-52 aircraft, and their son recalled that he had to make an emergency landing in Vietnam to make aircraft repairs. See April 2017 Bd. Hrg. Tr. at 3-13. At the time of the Veteran’s death, service connection was established for right and left knee traumatic arthritis (both 0 percent disabling). The record does not suggest, and the appellant does not contend, that the Veteran’s service-connected disabilities were principal or contributory causes of his death. Regarding the claimed in-service herbicide exposure, the Veteran’s service personnel and treatment records show that he was stationed at the Kadena Air Base in Okinawa from May 1968 to November 1969. A service performance report for the period from April 1968 to April 1969 shows that he was a recovery team member with the 4252 Original Maintenance Squadron, which included performing aircraft inspections, functional checks, and preventative maintenance. A service performance report for the period from April 1969 to October 1969 shows that he was a B-52 crew chief and that his supervision during that time was largely responsible for the aircraft flying more than eighty combat sorties since his assignment as crew chief. The record further shows that the Veteran had combat missions over Laos and Vietnam in B-52 and KC-135 aircraft, but it did not initially provide confirmation that he set foot in Vietnam. See Airman Military Record, p. 2; March 2011 3101 printout and April 2013 VA formal finding memorandum. In April 2017, the appellant submitted what appears to be an August 1969 aircraft flight data record indicating that the Veteran flew a sortie, landing at U-Tapao RTAFB and returning to Kadena Air Base. In response to the Board’s October 2017 remand, the AOJ sent a request to the Air Force Historical Research Agency to attempt to verify the Veteran’s claimed herbicide exposure. In a November 2017 response, an archivist from that agency explained that the paperwork indicating that the Veteran flew a sortie was valid and meant that he was put on a B-52 aircraft and flew through the combat zone to go to U-Tapao RTAFB. The archivist further explained that B-52 aircraft were not authorized to land in Vietnam, unless a safety issue arose and required them to land to avoid loss of the aircraft and/or lives, noting that such a situation happened very rarely. In other words, the archivist indicated that, although landings in Vietnam during combat sorties were not routine practice, emergency landings did occur. The Veteran’s son testified that his father told him that there was one time that his aircraft had to perform an emergency landing because there was a problem with the engine, as noted above. The Board finds the son’s testimony in this regard competent and credible. He had not planned to testify, and he only did so after the Veterans Law Judge asked him whether his father had ever talked to him about his Vietnam or Thailand service. See Bd. Hrg. Tr. at 13; see also, e.g., October 2006 Veteran’s claim (reported service in Vietnam from 1968 to 1969). In addition, the son’s testimony was prior to the AOJ’s receipt of the additional information from the archivist. Based on the foregoing, there is a reasonable doubt as to whether the Veteran served in-country in the Republic of Vietnam during a time in which herbicide exposure is presumptive. See Haas v. Nicholson, 20 Vet. App. 257 (2006), rev’d sub nom., Haas v. Peake, 525 F.3d 1168 (Fed Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (holding that VA’s requirement that a veteran must have been present within the land borders of Vietnam – must have actually set foot therein – at some point in the course of duty in order to be entitled to a presumption of herbicide exposure constitutes a permissible interpretation of 38 U.S.C. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii)). Resolving reasonable doubt in favor of the appellant, the Board finds that the Veteran did have such service, and the presumed herbicide exposure constitutes an in-service event. The Board also finds that the Veteran’s type II diabetes mellitus type II manifested to a compensable degree and was a contributory cause of his death. His death certificate shows that he died in December 2009 and that the immediate cause of death was respiratory failure due to pneumonia. Diabetes mellitus type II, chronic kidney disease, and cardiomyopathy were listed as contributory causes of death. The certifying physician on the death certificate (Dr. N.S.) was one of the Veteran’s primary care providers. The record shows that the Veteran was admitted to St. Luke Hospital West in early November 2009 (the month prior to his death) following shortness of breath and acute chest pain. It was noted that he had suspected congestive heart failure, which was new for him, along with the chest pain. It was also noted that he had a remote history of a cerebrovascular accident and prolonged hospitalization from September 2009 to October 2009 for H1N1 influenza with respiratory failure/pneumonia, renal failure with hemodialysis, ischemic colitis, acute on chronic anemia, and myelodysplastic syndrome. He had been transferred to Dr. N.S.’s team from another doctor’s service, as they were his primary care physicians. The admission assessment included a diagnosis of type II diabetes, in addition to the other problems discussed above. It was noted that the Veteran should continue his diabetes mellitus medications (Lantus, 14 units subcutaneously daily and NovoLog, per sliding scale). See November 5, 2009, private treatment record (history and physical admission report completed by Dr. N.S.); see also, e.g., November 7, 2009, private treatment record (nephrology/critical care consultation; noted no history of ischemic heart disease that treatment provider was aware of). The Veteran’s diabetes mellitus had manifested to a compensable degree at that time, as shown by the required insulin medications. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (compensable evaluation where disorder manageable by restricted diet only). In reviewing Dr. N.S.’s finding on the death certificate in the context of the other evidence of record, the Board finds that her determination that the Veteran’s diabetes mellitus was a contributory cause of his death was based on her consideration of the Veteran’s medical history as her patient, as well as current medical understanding, and is therefore entitled to probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where rationale provided by examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion”); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in context of evidence of record). There is no medical opinion to the contrary. Based on the foregoing, the Board concludes that service connection is warranted for the cause of the Veteran’s death. In reaching this decision, the Board emphasizes that the outcome is specific to the facts of this case. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Postek, Counsel