Citation Nr: 18143504 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 15-22 731 DATE: October 19, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran’s immediate cause of death was cardio-pulmonary arrest with acute respiratory failure, aspirational pneumonia, and metastatic small cell lung cancer with brain metastasis significantly contributing to his death. 2. After affording the appellant the benefit of the doubt, the Veteran was exposed to herbicide agents during his active duty service in Thailand during the Vietnam War era. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1310, 1311 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1960 to July 1980. He died in September 2011. The appellant was the Veteran’s surviving spouse at the time of his death. The appellant and J.E. testified before the undersigned Veterans Law Judge (VLJ) sitting at the Regional Office (RO) during a February 2018 Board hearing. A transcript of the hearing is included in the claims file. The appellant filed a claim in October 2011 seeking entitlement to service connection for the cause of the Veteran’s death. Specifically, in multiple statements throughout the appeal and during the February 2018 Board hearing, she contended that the Veteran’s death was caused by his in-service exposure to herbicide agents, including Agent Orange, while stationed in Thailand during the Vietnam War era. A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive DIC benefits. 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 the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The 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). 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. 38 C.F.R. § 3.312(c)(4). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As a general matter, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a [claimant] must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection can be established through application of statutory presumptions, to include those diseases associated with exposure to certain herbicide agents, including Agent Orange. For the diseases listed in 38 C.F.R. § 3.309(e), including respiratory cancers, such as cancer of the lung, and ischemic heart disease (IHD), such as coronary artery disease (CAD), the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed. Section 3.303(e) provides that when exposure to herbicide agents is established during active duty, diseases associated with herbicide exposure that manifest at any date, however remote, after service are entitled to service connection, unless they are clearly attributable to causes unrelated to service (“intercurrent causes”). See 38 C.F.R. § 3.307(d). The diseases listed at 38 C.F.R. § 3.309(e) must become manifest to a degree of 10 percent or more at any time after service, except for certain diseases, which are required to have manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during the active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Veteran’s death certificate showed that he died in September 2011. The immediate cause of death was cardio-pulmonary arrest, with acute respiratory failure, aspirational pneumonia, and metastatic small cell lung cancer with brain metastasis significantly contributing to his death. Furthermore, the death certificate showed that CAD, peripheral vascular disease (PVD), and hypertension contributed to the Veteran’s death but did not result in the underlying cause of the Veteran’s death. At the time of the Veteran’s death, only his residuals of bilateral mandible fracture and bursitis of the right shoulder were service connected, and each disability was rated as noncompensable (zero percent disabling). Thus, the question to be answered is whether the Veteran was exposed to herbicide agents during his active duty service, in which case the presumption related to the diseases listed at 38 C.F.R. § 3.309(e), including lung cancer and CAD, would apply. The majority of service members in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (RTAFBs) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. VA regulations indicate that if a veteran was in the Air Force and served on one of those air bases between February 28, 1961, and May 7, 1975, as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by his military occupational specialty (MOS), performance evaluations, or other credible evidence, then exposure to herbicide agents should be acknowledged on a facts-found or direct basis. The Veteran’s service personnel records show that he was stationed at Don Muang RTAFB from August 1968 to August 1969. His service personnel records also show that his MOS was as an Inventory Management Supervisor. However, after affording the appellant the benefit of the doubt, the evidence of record shows that the Veteran served near the air base perimeter while stationed at Don Muang RTAFB. Specifically, the appellant has credibly contended throughout the appeal that the Veteran was exposed to herbicide agents during his station at Don Muang. Additionally, the claims file includes several service personnel records discussing the Veteran’s duties while stationed at this air base. Moreover, in a January 1982 statement, the Veteran stated that he frequently worked with fly away kits and that he was responsible for positioning these kits on the flight line for all inspections and alerts. Given this evidence, and after affording the appellant the benefit of the doubt, the Board finds that the Veteran was exposed to herbicide agents during his active duty service in Thailand during the Vietnam War era. Accordingly, after applying the benefit-of-the-doubt doctrine, the evidence is at least in equipoise in showing that service connection for the cause of the Veteran’s death is warranted. Thus, the appellant’s claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Counsel