Citation Nr: 18142541 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-13 458 DATE: October 16, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death, to include as due to herbicide agent exposure, is denied. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in August 2014. His death certificate lists the immediate cause of death as Parkinson’s disease. A September 2014 amendment to the Veteran’s death certificate lists his immediate cause of death as congestive heart failure. No underlying causes of death or contributing factors were listed. 2. A service-connected disorder did not cause or materially contribute to the Veteran’s death; the evidence is against a finding that the Veteran ever set foot in the Republic of Vietnam or was otherwise exposed to herbicide agents in service. 3. The Veteran was not in receipt of a total service-connected disability rating for 10 years at the time of his death, was not rated as being totally disabled continuously for a period of no less than five years from the date of separation from service, and he was not a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for establishing service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.312. 2. The criteria for entitlement to DIC benefits pursuant to § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to November 1976. The Veteran died in August 2014 and the Appellant is his widow. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Neither the Appellant nor her representative has raised any issues with the duty to notify or duty to assist. 1. Service connection for the cause of the Veteran’s death The Veteran died in August 2014. The Appellant is his widow and is seeking service connection for the cause of the Veteran’s death. His August 2014 death certificate lists Parkinson’s disease as the immediate cause of death, while a September 2014 amended death certificate lists congestive heart failure as the immediate cause of death. The Veteran was not service-connected for Parkinson’s disease at the time of his death; however, the Appellant asserts that the Veteran was exposed to herbicide agents on active duty which caused or contributed to his Parkinson’s disease. For the reasons that follow, the Board finds that service connection for the cause of the Veteran’s death is not warranted. As the Board previously found in a January 2006 decision that denied entitlement service connection claim for diabetes mellitus, type II, the evidence is against a finding that the Veteran was exposed to herbicide agents during his active military service. In general, service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310. A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a rebuttable presumption of service incurrence; or one that is proximately due to or the result of service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, 3.310. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A 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, or 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. A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide agent exposure will be presumed for certain specified diseases, including Parkinson’s disease, that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Service in the Republic of Vietnam includes service in the waters offshore and 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). VA’s General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic of Vietnam by demonstrating actual duty or visitation. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C. § 101(29)(A) (establishing that the term “Vietnam era” means the period beginning on February 28, 1961 and ending on May 7, 1975 in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. Additionally, VA amended its regulation governing individuals presumed to have been exposed to certain herbicide agents by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Effective June 19, 2015, the new regulation states that an individual 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 shall be presumed to have been exposed during such service to an herbicide agent. “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 (AFSC) indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 C.F.R. § 3.307(a)(6)(v). A review of the Federal Register reveals that some C-123s were used to actually spray herbicide in Vietnam. 80 Fed. Reg. 35,246 (June 19, 2015). For this reason, the presumption of herbicide exposure under 38 C.F.R. § 3.307(a)(6)(v) is limited to contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. The affected reserve units and dates of service for affected crew members were those assigned to Pittsburgh International Airport, Pennsylvania (1972-1982), Westover Air Force Base and Hanscom Field Air Force Base, Massachusetts (1972-1982), and Lockbourne/Rickenbacker Air Force Base, Ohio (1969-1986). The affected active duty units and dates of service for affected crew members were as follows: Hurlburt Auxiliary Field, Eglin Air Force Base, Florida (1970-1973), Langley Air Force Base, Virginia (1962-1963, 1970-1973), Luke Air Force Base, Arizona (1970-1973), Tainan Air Field, Taiwan (1969-1970), Howard Air Force Base, Panama (1970-1973), Osan Air Base, South Korea (1970-1973), and Clark Air Force Base, Philippines (1969-1970). The affected AFSCs are: flight engineer/aircraft loadmaster (1130-1149); aircrew life support specialist (1220-1229); and aircraft maintenance specialist/flight technician (4314-4359). See http://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnits.pdf. Thus, to warrant presumptive exposure based on contact with a C-123, a veteran must have not only had duties at one of the above listed places, but also have had a duty that entailed that he or she regularly and repeatedly operated, maintained or served onboard C-123 aircraft. Finally, VA’s Adjudication Manual (M21-1) explains that the Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Royal Thai Air Force Bases (RTAFBs), including RTAFB U-Tapao. M21-1, Part IV, Subpart ii. 1.H.5.a (accessed October 10, 2018). The M21-1 directs that herbicide exposure be may be conceded on a facts-found basis if a veteran served in the Air Force in Thailand during the Vietnam Era at one of the listed bases if the veteran served as a security policeman, security dog handler, member of the security police squadron, or otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. M21-1, Part IV, Subpart ii. 1.H.5.b (October 10, 2018). Turning to the evidence, the Board notes that during his appeal of a claim for entitlement to service connection for diabetes mellitus, the Veteran asserted that, although stationed in Thailand, he would occasionally board aircraft that landed in Vietnam to pick up drones. Additionally, he asserted that he handled planes that had been sprayed with herbicides, that the herbicides that were sprayed in Vietnam were carried over to Thailand, and that herbicides were also sprayed in Thailand. The record confirms that the Veteran served with the United States Air Force during the Vietnam era. The medical evidence establishes that, prior to his death, he was diagnosed with Parkinson’s disease and diabetes mellitus. The Board, however, finds that the record does not establish that the Veteran was ever stationed in, or visited the Republic of Vietnam. His DD Form 214 reveals service in Thailand for 94 days as an aircraft mechanic. It does not indicate that the Veteran served in or visited Vietnam. Furthermore, in September 2001, the service department responded that there was no information or document of record regarding any service in Vietnam. In March 2004, the service department further verified that although the Veteran served in Thailand, there was no evidence of herbicide exposure in the Veteran’s file. Additionally, in an effort to help substantiate the Veteran’s claim the service department was queried in March 2004 and asked to search the morning reports of Buffalo Hunters 99th Strategic Reconnaissance Squadron for remarks regarding the landing of drones and exposure to herbicides. In July 2004, the service department responded that there were no morning reports for the period in question. His service personnel records also do not affirmatively establish that his responsibilities included actual duty or visitation in Vietnam. Regarding the Veteran’s assertions prior to his death that he came into contact with planes that had been exposed to Agent Orange and/or that he landed in Vietnam, the reports do not support his assertions. The Board notes the Veteran’s military occupational specialty (MOS) as an Aircraft Maintenance Specialist, an MOS that may reflect military personnel who had regular and repeated exposure to contaminated C-123s. However, as previously noted, the presumption of herbicide exposure is limited to contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. The Veteran’s military personnel records do not reflect that he worked on (or was ever a passenger on) C-123s, but rather, C-130s. The record also does not reflect that the Veteran’s unit was one of the affected active duty units identified as servicing C-123s. See 38 C.F.R. § 3.307(a)(6)(v); 80 Fed. Reg. 35,246 (June 19, 2015). The record does not otherwise show exposure to C-123s or exposure to herbicides while performing his duties on C-130s. Finally, the assertion that the Veteran was exposed to herbicides while stationed in Thailand has not been substantiated. The Board acknowledges that the M21-1, which is generally not binding on the Board (see 38 C.F.R. § 20.101), gives special consideration of herbicide exposure on a facts-found or direct basis to those veterans whose duties placed them on or near the perimeters of certain Thailand military bases. Although his exact period of service has not been verified by VA, the Veteran asserted in various statements that he was temporarily stationed at U-Tapao RTAFB from October 1974 to December 1974. After careful review of the record, however, and assuming the Veteran’s assertions as to his period of temporary duty are correct, there is no corroborating evidence that the Veteran was stationed at or had duties near the base’s perimeter, or that he was otherwise exposed to herbicide agents, while serving in Thailand. Accordingly, the presumptive provisions of 38 C.F.R. § 3.307(a)(6)(iii) are not applicable to this case, and exposure to herbicides in service may not be presumed. See VAOPGCPREC 27-97. In addition, exposure to herbicide agents has not otherwise been substantiated. The Board notes that the availability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a Veteran from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the medical evidence of record does not suggest that the causes of the Veteran’s death manifested during, or were otherwise caused by, his active duty service. Thus, service connection is also not available on a direct basis. 38 C.F.R. § 3.303. Thus, based on the foregoing, the Appellant’s claim of entitlement to service connection for the cause of the Veteran’s death must be denied. The Board acknowledges that a veteran is competent to describe symptoms that he can perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In that regard, the Veteran asserted prior to his death that certain disabilities were related to herbicide exposure during his military service. However, whether the Veteran’s military service or the symptoms experienced following his military service were in any way related to his disabilities prior to his death, including those which caused his death, requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). The Board finds the various medical and factual findings of record are more probative than the Veteran’s more general lay statements. Notably, the Board is finding that the evidence is against a finding that the Veteran was exposed to herbicides agents during service on a presumptive or direct basis. The Appellant has also been given the opportunity to provide additional evidence in support of her assertion that the Veteran’s military service was the cause of the Veteran’s death. While the Board acknowledges her statements that the Veteran was exposed to herbicides during his military service, these statements are not supported by the evidence of record outlined above, nor does the record suggest that the Appellant has been shown to have the education, training, or experience necessary to make a competent opinion as to the etiology of the Veteran’s Parkinson’s disease. Such findings fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d. As the preponderance of the evidence is against the Appellant’s claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, entitlement to service connection for the cause of the Veteran’s death must be denied. 2. Entitlement to DIC benefits under 38 U.S.C. § 1318 Under 38 U.S.C. § 1318(a), benefits are payable to the surviving spouse of a deceased veteran in the same manner as if the death were service-connected. A “deceased veteran” for purposes of this provision is a veteran who dies not as the result of the veteran’s own willful misconduct, and who either was in receipt of compensation, or for any reason (including receipt of military retired pay) was not in receipt of compensation but would have been entitled to receive compensation, at the time of death for service-connected disabilities rated totally disabling. For the benefits to be awarded to the Appellant, the veteran’s service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death; or continuously rated totally disabling for at least five years from the date of the veteran’s separation from service; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former POW who died after September 30, 1999. The total disability rating may be schedular or based on unemployability. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(c). Under 38 C.F.R. § 3.22, DIC benefits may not be awarded based on “hypothetical entitlement” for ten years preceding the veteran’s death, no matter when the claim was filed. See, e.g., Moffit v. McDonald, 776 F.3d 1359 (Fed. Cir. 2015). The Veteran died in August 2014. At the time of his death, the Veteran was only in receipt of a combined 50 percent rating for his service-connected disabilities from October 2004. Prior to that, he was in receipt of a combined 40 percent rating for his service-connected disabilities from March 2000. After review of the record, entitlement to DIC benefits is not warranted under 38 U.S.C. § 1318. While the Board acknowledges the Appellant’s argument that the Veteran was in receipt of service-connected disability benefits for more than 10 years immediately preceding his death, the Veteran was not continuously rated totally disabled (either schedular or based on unemployability) for a period of at least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for a period of not less than five years after discharge from service. (Continued on the next page) Because the durational requirements for a total disability rating under 38 U.S.C. § 1318 have not been met, nor has the evidentiary record shown that the Veteran was a former POW, entitlement to DIC benefits under 38 U.S.C. § 1318 must unfortunately be denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel