Citation Nr: 18149624 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-45 962 DATE: November 14, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in April 2014; the cause of death was respiratory arrest secondary to lung cancer. 2. The Veteran did not serve in Vietnam; he served at Takhli Airfield, Thailand, from 1968 to 1969, but his performance reports do not show any duties that would place him near the perimeter of the airbase or otherwise expose him to herbicides. 3. The service treatment records (STRs) are negative for evidence of lung cancer; and lung cancer was diagnosed many years after discharge from service, and has not been related to service by continuity of symptomatology or competent medical opinion. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1310, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 1966 to July 1974. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for the cause of the Veteran’s death The appellant contends that the lung cancer which led to the Veteran’s death was the result of herbicide exposure during service. She asserts that the Veteran was exposed to Agent Orange while serving at an air base in Thailand during the Vietnam conflict. The death certificate shows that the Veteran died in April 2014. The immediate cause of death was respiratory arrest secondary lung cancer. There were no underlying conditions or secondary causes listed. No autopsy was performed. Pursuant to 38 U.S.C. § 1310, dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997). 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 service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, 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. The record shows that the Veteran was service connected for bilateral hearing loss, tinnitus, and Barrett’s esophagitis at the time of his death. Therefore, the Board will determine if the disability that resulted in his death was incurred due to active service. In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In a DIC claim based on cause of death, the first Caluza requirement, “evidence of a current disability, will always have been met (the current disability being the condition that caused the veteran to die)”. Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). If malignant tumors become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of tumors during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975 is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. “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. The appellant does not contend that the Veteran served in or ever entered Vietnam. Rather, she believes he was exposed to herbicides while at Takhli Air Force Base, Thailand. Exposure to herbicide agents is not presumed for service in Thailand but may be shown by the evidence on a fact found basis. 38 C.F.R. § 3.307(a)(6). VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VBA Adjudication Manual, M21-1, IV.ii.2.C. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. Most troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases 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 MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. Duties that were known to have placed veterans on or near the perimeter included security policeman, security patrol dog handlers, members of the security police squadron, or those who are otherwise shown to be near the air base perimeter by evidence of daily work duties, performance evaluations, or other credible evidence. If there is evidence of such perimeter duty, then exposure to herbicides can be acknowledged. If a veteran was exposed to an herbicide agent during active military, naval, or air service, there are certain diseases that shall be service-connected even though there is no record of such disease during service. Respiratory cancers to include lung cancer are one of these diseases. 38 C.F.R. § 3.309(e). For the purposes of this section, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become 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 active military, naval, or air service. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’d Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). In relevant part, 38 U.S.C. 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The evidence includes the Veteran’s STRs. These are completely negative for symptoms or diagnoses relating to lung cancer. The July 2014 separation examination found that the Veteran’s lungs and chest were normal. A chest X-ray was also normal. The Veteran denied shortness of breath, pain or pressure in the chest, and a chronic cough on a Report of Medical History he completed at that time. The personnel records do not show that the Veteran had Vietnam service. They show that he arrived at Takhli Airfield, Thailand, in December 1968, and that his duty title was an Aircraft Maintenance Specialist. The personnel records include the Veteran’s performance reports for the periods from May 1969 to October 1969. These records describe in detail the Veteran’s duties as an Aircraft Maintenance Specialist and the excellent manner in which he performed them while at Takhli. However, there is nothing in them that would show his daily work duties placed him at or near the air base perimeter. Guard duty or other work along the perimeter was not mentioned. In October 2015, the RO entered a formal finding into the record that there was insufficient information of record to request a research of unit records from Joint Services Records Research Center (JSRRC) for verification of Agent Orange exposure. The post-service treatment records include private records that show the discovery and history of the Veteran’s lung cancer. A 2001 diagnostic study shows abnormality on the Veteran’s left lung. The records are negative for any mention of herbicides, Thailand, or the Veteran’s military service. They do not contain any opinion that relates the Veteran’s lung cancer to service, to include herbicide exposure in service. Furthermore, no such opinion has been received since the death of the Veteran. Based on a review of the relevant lay and medical evidence, the Board concludes that there is no basis for an award of service connection for the cause of the Veteran’s death. Initially, the Board notes that as there is no evidence that the Veteran had Vietnam service, his exposure to herbicides such as Agent Orange cannot be presumed. The appellant does not claim that the Veteran served in Vietnam, and the evidence does not show that he served there or even entered while in route to or from Thailand. Furthermore, the preponderance of the available evidence indicates that the Veteran was not exposed to herbicides while in Thailand. The development required by M21-1, IV.ii.1.H.5.b., has been completed. The Veteran’s performance reports that cover his tour in Thailand have been obtained and reviewed. These do not show that the Veteran was required to go to the air base perimeter due to his daily work duties. There is simply no indication in the probative and competent evidence to show exposure to herbicide agents. As such, the Board must conclude that there is no basis to relate the lung cancer that led to the Veteran’s death to herbicide exposure in service, either on a presumptive or direct basis. 38 C.F.R. §§ 3.307, 3.309(e). The evidence also shows that the Veteran’s lung cancer was first shown several years after his discharge from service. It cannot be presumed to have been incurred during service as a chronic disability. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Finally, the evidence does not show that lung cancer can be related to active service on any other basis. The STRs are negative for lung cancer and, as noted, this disease was first diagnosed decades after discharge. It has not been related to active service by any competent medical opinion. Continuity of symptomatology has been considered; however, there is no indication from the record that the Veteran reported any such symptomatology prior to his death. The Board has considered the appellant’s statements and her sincere opinion that the Veteran’s lung cancer was related to herbicide exposure in service. However, there is no indication that she has had the medical training that would enable her to make such a diagnosis or to relate a complicated disease, such as lung cancer to service. See Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007). As such, the Board finds her opinion as to etiology to be not competent and lacking weight. Therefore, the preponderance of the evidence is against the appellant’s claim under all theories of entitlement, and service connection for the cause of the Veteran’s death is not established. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. McPhaull, Counsel