Citation Nr: 18147263 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-24 780 DATE: November 2, 2018 ORDER Entitlement to service connection for a brain tumor due to certain herbicide exposure is granted. Entitlement to service connection for cause of death due to a brain tumor is granted. FINDINGS OF FACT 1. . The Veteran served in the U.S. Air Force at the Nakhon Phanom Royal Thailand Air Base, during the Vietnam Era, from June 1967 to June 1968, as a material facilities supervisor and traveled the perimeter. 2. Affording the Appellant the benefit of the doubt, the Veteran’s brain tumor was at least as likely as not caused by his exposure to herbicide. 3. The Veteran died of a brain tumor. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a brain tumor due to certain herbicide exposure have been met. 38 U.S.C §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1101, 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1962 to November 1966 and from November 1970 to November 1974 and from November 1974 to February 1977. The Veteran died in August 2012. 1. Entitlement to service connection for a brain tumor due to certain herbicide exposure 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; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran 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’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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). Furthermore, service connection can be established through application of statutory presumptions, to include those diseases associated with exposure to certain herbicide agents like Agent Orange. While the record indicates that the Veteran served in Thailand during his active duty service, the Veteran’s brain tumor has not been associated with exposure to herbicides for the purpose of presumptive service connection and it is not among the diseases listed in 38 C.F.R. § 3.309(e). Nonetheless, the Veteran is presumed to have been exposed to herbicides, including Agent Orange, while stationed in Thailand. Thus, he is not precluded from showing that his military service caused his current disability on a direct basis because the Board must consider entitlement to service connection on alternative bases. See Combee, 34 F.3d at 1043. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Merits The Appellant contends in her October 2018 hearing that the Veteran traveled the perimeter of the U.S. Air Force at the Nakhon Phanom Royal Thailand Air Base, during the Vietnam Era and the Veteran’s brain tumor was caused by his exposure to Agent Orange applied on the perimeter of this base. The Board upon review of the Veteran’s claims file finds that the evidence supports the Appellant’s contention and service connection is warranted for a brain tumor due to agent orange exposure. Turning to the Veteran’s exposure to Agent Orange, the Board observes that the Veteran’s personnel record places him in the U.S. Air Force at the Nakhon Phanom Royal Thailand Air Base, during the Vietnam Era. The Board likewise observes that the Veteran’s Military Occupational Specialty (MOS) coupled with the Veteran’s statements reiterated by his spouse in the October 2018 hearing are consistent with the place, type, and circumstances of his service as shown by his service record. See 38 C.F.R. § 3.303(a). As such the Board finds the Appellant meets the criteria for presumption of exposure to herbicide agent during active military service in Thailand. See M21-1MR, Part IV.ii.2.C.10.q. Turning to the question of a current disability there is no dispute that the Veteran had a diagnosis of brain tumor from a January 2012 VA treatment note. Thus, the only remaining issue is whether the Veteran’s brain tumor was associated with his exposure to Agent Orange. On this issue, the Board finds the February 2012 “Examination for Housebound Status or Permanent Need for Regular Aid and Attendance” to be the most probative opinion of record. In this report, the Veteran’s physician wrote that the Veteran’s was a result of chemical exposure (i.e. Agent Orange) in Vietnam. The Board in weighing the probative value of this opinion recognizes the inherent and unique position the Veteran’s treating physician has in relation to the history and details of the Veteran’s disease. It is with this understanding that the Board finds that the Veteran’s treating phsycian’s opinion has the most probative value in the claim file. As such, the Board finds that all the component of service connection have been found and service connection is warranted. 2. Entitlement to service connection for cause of death due to a brain tumor 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 was the principal or contributory cause of death. See 38 U.S.C. § 1310; 38 C.F.R. 3.312 (a). Merits The Appellant contends that the Veteran’s brain tumor contributed to the Veteran’s death. The evidence supports the Appellant’s contention and the Board finds that service connection is warranted. The record has no dispute on the principal cause of the Veteran’s death. As noted in the Veteran’s treating physician’s September 2012 correspondence to the Board, the Veteran’s brain tumor caused his death. As there is no contradicting evidence and the claims file nor any reason to doubt the Veteran’s treating physician, the Board finds that the Veteran’s principal cause of death was his now service connected brain tumor. . GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Acosta