Citation Nr: 18156606 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 15-23 169A DATE: December 10, 2018 REMANDED Entitlement to service connection for the cause of Veteran’s death is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1955 to April 1975. The Veteran died in May 2006, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Appellant and the Appellant’s son testified before the undersigned Veterans Law Judge during an August 2018 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Appellant’s claim so that she is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. §3.159(c). The Appellant contends that the Veteran’s death was proximately caused by ischemic heart disease (IHD) due to exposure to herbicide agents during his service in Thailand and Okinawa, Japan. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309(a). Further, a Veteran who during active military, naval, or air service served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the Veteran was not exposed to any such agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). To benefit from the presumption of service connection for diseases associated with herbicide exposure, the Veteran must have one of the diseases enumerated in 38 C.F.R § 3.309(e), which include IHD. Dependency and Indemnity Compensation (DIC) Benefits, is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5 (2017). 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). The Appellant married the Veteran in August 1956. The Veteran and Appellant separated in May 1984 and remarried in April 1994. The Appellant is properly deemed to be the surviving spouse of the Veteran. The Veteran passed away in May 2006. At the time of his death, the Veteran did not have any service-connected disabilities. His death certificate from May 2006 lists IHD as the immediate cause of death. There are no other diseases listed as either the immediate or contributing causes of death. In this case, the Appellant asserts that the Veteran’s IHD is directly related to service because of his herbicide agent exposure in Thailand and Okinawa. As a preliminary matter, the records do not show that the Veteran served in the Republic of Vietnam. The Veteran’s official military personnel records indicate that he served in Thailand at the Udorn Royal Thai Air Force Base (RTAFB) while on active duty. The Board notes that there are no statutory or regulatory presumptions regarding herbicide exposure in Thailand. However, VA may   presume, in the absence of sufficient evidence to the contrary, that a Veteran who served in Thailand during the Vietnam War Era was exposed to herbicides if: (1) The Veteran was in the Air Force, (2) the Veteran served at one of the RTAFBs of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and (3) the Veteran served as a security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. In this regard, the Veteran’s military occupational specialty was in the dental field and his personnel records do not show any evidence which required him to be near the air base perimeter. Therefore, herbicide exposure due to service in Thailand cannot be conceded. The VA Adjudication Procedure Manual M21-1 (M21-1), Part IV, Subpart ii, 1.H.7.a describes the procedure for verifying exposure to herbicides in locations other that the Republic of Vietnam, the demilitarized zone in Korea, or Thailand. The procedure involves: (1) asking the Veteran for the approximate dates, location, and nature of the alleged exposure; (2) furnishing the Veteran's detailed description of exposure to the Compensation Service for confirmation; and (3) requesting a review of the Department of Defense (DOD) inventory of herbicide operations to determine whether herbicides were used as alleged. If the Compensation Service's review confirms that herbicides were used as alleged, then a determination must be made as to whether service connection is in order. If the Compensation Service's review does not confirm that herbicides were used as alleged, then a request should be sent to the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides.   The Appellant also asserted that the Veteran was exposed to herbicides in Okinawa, Japan. A review of the Veteran’s military personnel records show that he was stationed in Okinawa from November 1962 to July 1964. In 1964, the Veteran rescued an Okinawan man who fell off the pier docks at Tomari Port and could not swim. Although the Appellant’s claim is based upon presumptive service connection for cause of death, the Board is required to consider all theories of entitlement reasonably raised by the record. See Robinson v, Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). It was noted in the Veteran’s service treatment record from September 1972, that he complained of chest pains. In Combee v. Brown, the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Appellant indicated on the VA Form 21-526, Veteran’s Application for Compensation and/or Pension, received in February 2014, that the Veteran had been treated at New Hanover Regional Medical Center for IHD. To date, these records have not been requested. Hence, further development is required to obtain these records. At the hearing conducted with the undersigned, the Appellant and Appellant’s son, stated that the Veteran was treated at Fayetteville and Jacksonville VA Medical Center (VAMC) for his heart condition from 1998. The Veteran’s son stated that he personally escorted his father, the Veteran, to the VAMC in 1998 because that is when he got his truck. See August 2018 Hearing Testimony. These records have not been associated with the Veteran’s file.   The matter is REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Appellant may identify relevant to the claim, to include treatment at New Hanover Regional Medical Center. It was reported during the hearing that the Veteran had undergone heart surgery. 2. Obtain VA treatment records, to include Fayetteville and Jacksonville VAMC from 1998 up to the Veteran’s date of death (May 2006). 3. Develop the Appellant's allegation of exposure to herbicides pursuant to the VA Adjudication Procedure Manual M21-1, Part IV, Subpart ii, 1.H.7.a, Verifying Herbicide Exposure on a Factual Basis in Other Locations for the Veteran’s service in Okinawa, Japan. If necessary, send a request for verification of herbicide exposure to the Joint Services Records Research Center (JSRRC). All steps taken in developing the allegation of herbicide exposure must be clearly documented in the claims file. 4. After the above development has been completed and all obtainable records have been associated with the claims file, and if herbicide exposure based on service in Okinawa, Japan cannot be confirmed, arrange for a VA physician specializing in cardiology to conduct a comprehensive review of the record and provide an opinion as to the relationship, if any, between IHD and his service. Specifically, the physician should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s IHD is related to service. In the alternative, the physician should also provide an opinion whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s IHD manifested to a compensable degree within one year after the Veteran’s separation from active duty. If so, the physician should comment on the nature of those manifestation. The medical opinion must include a complete rationale for any opinion provided. If the physician cannot provide the requested opinions without resorting to speculation, the physician should so state and explain why an opinion cannot be provided without resorting to speculation. The Examiner should comment on the significance of several in-service elevated blood pressure readings, complaints of chest pain, and statement made upon discharge examination that he was taking medication for better blood circulation (see statement made in separation examination of December 1974). Additionally, the examiner must provide an opinion as to whether it is as likely as not that IHD was caused by or aggravated the Veteran’s diagnosed venous insufficiency.   3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide the Appellant and her representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Kim, Associate Counsel