Citation Nr: 18154258 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-08 721 DATE: November 29, 2018 ORDER Entitlement to service connection for lung cancer for purposes of entitlement to accrued benefits is granted. Entitlement to service connection for diabetes mellitus, type II, for purposes of entitlement to accrued benefits is granted. Entitlement to service connection for the Veteran’s cause of death for purposes of entitlement to dependency and indemnity compensation (DIC) benefits is granted. REMANDED Entitlement to service connection for kidney cancer for purposes of entitlement to accrued benefits is remanded. Entitlement to service connection of hypertension for purposes of entitlement to accrued benefits is remanded. FINDINGS OF FACT 1. The Veteran had claims pending for service connection of lung cancer and diabetes mellitus, type II, at the time of his death. The appellant has successfully substituted as appellant on those claims. She also seeks accrued benefits based on those claims. 2. The Veteran was at least as likely as not exposed to herbicides while stationed at U-Tapao Royal Thai Air Force Base (RTAFB) during active service. 3. Lung cancer is a disease associated with exposure to certain herbicide agents for purposes of presumptive service connection. 4. Diabetes mellitus, type II, is a disease associated with exposure to certain herbicide agents for purposes of presumptive service connection. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection of lung cancer for purposes of entitlement to accrued benefits have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b), 5121; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a), 3.31, 3.1000. 2. The criteria for a grant of service connection of diabetes mellitus, type II, for purposes of entitlement to accrued benefits have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b), 5121; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a), 3.31, 3.1000. 3. The criteria service connection for the Veteran's cause of death for purposes of entitlement to dependency and indemnity compensation (DIC) benefits have been met. § 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to February 1975. The Veteran died in July 2013. The appellant is the Veteran’s surviving spouse who has successfully substituted on the Veteran’s appeals pending at the time of his death, as well as on her own claims for accrued and DIC benefits. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, and an October 2015 rating decision issued by the VA Pension Management Center (PMC) in St. Paul, Minnesota. 1. Entitlement to service connection for lung cancer for purposes of entitlement to accrued benefits Prior to his death, the Veteran sought service connection for lung cancer. The appellant has successfully substituted as appellant on that claim. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of a veteran, be paid to the living person first listed below: (A) the veteran’s spouse; (B) the veteran’s children (in equal shares); (C) the veteran’s dependent parents (in equal shares). 38 U.S.C. § 5121(a), 5121(a)(2); 38 C.F.R. § 3.1000 (a). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121(a)(6). Benefits become accrued if they are owed to a recipient, but unpaid at the time of the recipient’s death, or if the recipient had a claim pending at the time of their death which was later granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Further, if a veteran was exposed to an herbicide agent during active military, naval, or air service in Vietnam, then certain diseases, such as respiratory cancers (to include any lung cancer) and diabetes, shall be service connected even though there is no record of such disease during service. 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. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313 (2017). VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Notably, these were the key compounds found in the tactical herbicides used during that time, with “Agent Orange” being the most common. “Service in Vietnam” for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations of the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975. See 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.313(a). In fact, the United States Court of Appeals for the Federal Circuit (Federal Court) has confirmed VA’s interpretation of 38 C.F.R. § 3.307 (a)(6)(iii) as requiring a service member’s presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation’s presumption. Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008). In addition to exposure within the Republic of Vietnam, exposure to Agent Orange and other herbicides has been noted to have occurred in various places outside of the Republic of Vietnam, including Thailand. VA has determined that U.S. Air Force Veterans who served on Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides. Particularly, to benefit from the presumption of herbicide exposure at one of the above listed air bases, a veteran must have served 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 military occupational specialty, performance evaluation, or other credible evidence. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H.5.a-b (May 22, 2018). Further, on October 22, 2018, VA adopted, as final, an interim final rule published on June 19, 2015, to amend its adjudication regulation governing individuals presumed to have been exposed to certain herbicides. Specifically, VA expanded 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 (“Agent Orange”) during the Vietnam era. Additionally, the regulation established a presumption that members of this group who later develop an Agent Orange presumptive condition were disabled during this relevant period of service, thus establishing that this service constituted “active military, naval, or air service.” The effect of this rule is to presume herbicide exposure for these individuals and to create a presumption that the individuals who are presumed exposed to herbicides during reserve service also meet the statutory definition of “veteran” for VA purposes and eligibility for some VA benefits. The Board finds that the claim should be granted. The record does not support a finding, and the appellant does not contend, that the Veteran ever set foot in the Republic of Vietnam during his active duty service. Rather, the appellant (and the Veteran himself prior to his death) asserts that the Veteran was exposed to herbicides during active service by virtue of his service in Thailand. The Veteran’s military personnel records show that he served at U-Tapao RTAFB. Prior to his death, the Veteran had a confirmed diagnosis of adenocarcinoma of the lung and diabetes. The Veteran’s military occupational specialty is listed as a corrosion control specialist. Military personnel records show that he performed as a member of the corrosion control inspection team that was responsible for all wing assigned aircraft. Specifically, he inspected the various aircraft at the base, removed corrosion by manual, powered and chemical processes, and treated the aircraft with chemical solutions and applied protective coatings. While there is no evidence that he ever operated as a security policeman, security patrol dog handler, or member of a security police squadron, the appellant’s assertion that the Veteran served near the perimeter of the base, is competent and credible. The Veteran’s military occupation specialty while stationed at U-Tapao RTAFB would have placed him in direct contact with any aircraft that came through the base. In support of his claim, his representative has also provided aerial maps of U-Tapao RTAFB, showing that the flight line, where the Veteran would have had direct contact with those aircraft, was located directly adjacent to the perimeter of the base. With his own application, the Veteran himself asserted that he would cross the perimeter of the base frequently. In sum, there is no definitive evidence either way as to whether the Veteran served on the perimeter of U-Tapao RTAFB. In considering this question, the Board must consider all of the evidence of record. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). Given that there is evidence in support of the Veteran’s service on or near the perimeter and evidence against such service, as well as evidence that he came into contact with all aircraft at the base, which could include C-123 aircraft, the evidence is approximately evenly balanced on this question. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that there is “other credible evidence” that the Veteran served on the perimeter of U-Tapao RTAFB. 38 C.F.R. § 3.102 (the benefit of the doubt doctrine applies to “any... point” within a claim). Exposure to herbicide agents is therefore conceded on a direct/facts-found basis. The Board notes that this decision is based on the specific facts in evidence in this case, and does not speak to the validity of any other claim based on service at the various Royal Thai Air Force Bases. 38 C.F.R. § 20.1303. As lung cancer and diabetes were diagnosed prior to his death, and the Veteran was exposed to herbicide agents in service, entitlement to service connection for adenocarcinoma of the lung and diabetes is warranted on a presumptive basis. As noted above, benefits become accrued if they are owed to a recipient based on a claim pending at the time of their death which is later granted. As the appellant is the Veteran’s surviving spouse, and the Board has granted service connection for lung cancer and diabetes, any benefits which have subsequently become accrued as a result of this grant are granted to the appellant. 2. Entitlement to service connection for the Veteran's cause of death for purposes of entitlement to dependency and indemnity compensation (DIC) benefits As noted above, the Board has granted the Veteran’s claim of service connection for lung cancer which was pending at the time of his death. Pursuant to 38 U.S.C § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. See 38 U.S.C § 1310 (2012); Dyment v. West, 13 Vet. App. 141 (1999), aff’d sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran’s death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2017). The disability is the principal cause of death if it was “the immediate or underlying cause of death or was etiologically related thereto.” 38 C.F.R. § 3.312(b). It is a contributory cause if it “contributed substantially or materially” to the cause of death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312(c)(1). In determining whether a veteran’s death was service connected, the first element is always satisfied in that the current disability is the condition that resulted in the veteran’s death. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed.Cir.1999). As noted above, the Board has found that the Veteran’s lung cancer, specifically adenocarcinoma of the lung should be granted service connection, based on a claim that was pending prior to the Veteran’s death. His death certificate gave respiratory arrest due to adenocarcinoma of the lung as his cause of death. Therefore, to the extent that his lung cancer was a direct cause of his death, service connection for the Veteran’s cause of death should also be granted. REASONS FOR REMAND 1. Entitlement to service connection for kidney cancer for purposes of entitlement to accrued benefits is remanded. 2. Entitlement to service connection of hypertension for purposes of entitlement to accrued benefits is remanded. As noted above, the Board has found that the Veteran was likely exposed to herbicide agents during active service. Although service connection has been granted for lung cancer and diabetes on a presumptive basis, kidney cancer and hypertension are not disabilities for which presumptive service connection may be granted secondary to herbicide exposure. This, however, does not preclude service connection on a direct basis, presuming the evidence shows a causal nexus between that exposure and the disability claimed. Therefore, an examination should be obtained which addresses any possible causal nexus between kidney cancer and hypertension and exposure to herbicides in service. The matters are REMANDED for the following action: 1. Invite the appellant to submit any additional evidence in support of her claim.   2. Obtain an opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension and kidney cancer. The examiner must opine whether those disabilities were at least as likely as not related to an in-service injury, event, or disease, including his conceded in-service herbicide exposure. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel