Citation Nr: 1807553	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  13-33 724	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for the Veteran's cause of death.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and Appellant's friend, P.C.




ATTORNEY FOR THE BOARD

Douglas M. Humphrey, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to September 1970.  The appellant is his surving spouse.

This appeal comes before the Board of Veteran's Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  By that rating action, the RO denied service connection for the Veteran's cause of death.  Jurisdiction of the appeal currently resides with the RO in Seattle, Washington.

In September 2016, appellant and her friend, P.C., testified before the undersigned Veterans Law Judge at a Travel Board Hearing.  A transcript of that hearing is of record.  The record was held open for 60 days following the hearing to permit the filing of new evidence, and appellant stated on the record that she waived RO consideration of any evidence submitted. 


FINDINGS OF FACT

1.  The Veteran was exposed to herbicide agents (e.g., Agent Orange) as the result of being present in or near the Korean DMZ while on active military duty from July 1969 to September 1970, and his military occupational specialty involved frequent travel from Camp Casey to the DMZ, to include at least two trips to or near the DMZ in October 1969.

2.  Although not service connected during his lifetime, the Veteran's coronary artery disease and Type II diabetes mellitus are presumed to be due to exposure to herbicide agents.

3.  According to his death certificate, the Veteran died in March 2011 as a result of idiopathic pulmonary fibrosis; and, coronary artery disease and Type II diabetes mellitus were identified as significant conditions contributing to, but not necessarily resulting in, the Veteran's death.


CONCLUSION OF LAW

The criteria for entitlement to service connection for the Veteran's cause of death are met.  38 U.S.C. §§ 1110, 1112, 1116, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017)


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Because the Board is granting entitlement for service connection for the Veteran's cause of death, any errors related to VA's duties to notify and assist with regard to that issue are moot.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.

I.  Laws and Regulations

A veteran's surviving spouse is eligible for dependency and indemnity (DIC) benefits when a qualifying veteran dies from a service-connected disability.  38 U.S.C. § 1310; 38 C.F.R. § 3.5(a).  The service-connected disability may be either the principal or a contributory cause of death.  38 C.F.R. § 3.312(a).  It is the principal cause if it was "the immediate or underlying cause of death or was etiologically related" to the death.  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 order to be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death.  See Lathan v. Brown, 7 Vet. App. 359 (1995).

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Generally, to establish service connection, the evidence 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 current disability and the in-service disease or injury (or in-service aggravation).  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any injury or disease diagnosed after discharge when all of the evidence establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

With regard to herbicide exposure, VA laws and regulations provide that a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iv).  The list of diseases associated with exposure to certain herbicide agents includes coronary artery disease and Type II diabetes mellitus.  Id. § 3.309(e).

II.  Analysis

The Veteran's death certificate identified Type II diabetes mellitus and coronary artery disease as "significant conditions contributing to death but not resulting in the underlying cause" of the Veteran's death.  Based on the face of the Veteran's death certificate, and because both diabetes mellitus and coronary artery disease are systemic conditions, the Board concludes that Type II diabetes mellitus and coronary artery disease are contributory cases of death pursuant to 38 C.F.R. § 3.312(c)(1).

Type II diabetes mellitus and coronary artery disease are both associated with herbicide exposure.  See 38 C.F.R. § 3.309(e).  Thus, the dispositive issue is whether the Veteran's coronary artery disease and Type II diabetes mellitus are etiologically related to his active military service.

Service treatment records do not show any diagnoses for or treatment of either Type II diabetes mellitus or coronary artery disease while the Veteran was on active duty.  The appellant does not argue the contrary.  Rather, the appellant contends that service connection for Veteran's cause of death is warranted on a presumptive basis due to herbicide exposure.  See June 2014 Statement in Lieu of VA Form 646.  

According to military personnel records, the Veteran was a light and heavy truck driver, and armorer with the 1st Battalion, 31st Artillery, 7th Infantry Division, stationed at Camp Casey, Korea from July 1969 to September 1970.  That unit is not one deemed to have operated in or near the DMZ.  

An April 2013 VA memorandum stated that National Personnel Records Center (NPRC) records do not include evidence of exposure to herbicide agents while the Veteran was in Korea.  The NPRC determined that the evidence was insufficient to request that the U.S. Army and Joint Services Records Research Center conduct further development.

The Board notes that military service is to be determined based on all relevant evidence, with due application of the duty to assist, and the statutory and regulatory requirements to consider "all information and lay . . . evidence of record."  38 U.S.C. § 5107(b); see also 38 C.F.R. § 3.102; Capellan v. Peake, 539 F.3d 1373, 1382 (Fed. Cir. 2008).

Appellant testified at the September 2016 Travel Board Hearing that the Veteran had told her that he frequently delivered fuel or gas to the DMZ.  Appellant made a similar statement in November 2016.  Appellant is competent to report what the Veteran told her about his service, and the Board finds her testimony and statement credible and probative of whether the Veteran was in or near the DMZ.

In an October 2016 statement, S.P.B. stated that he served alongside and boarded with the Veteran in Korea.  S.P.B. stated that the Veteran was a member of the supply detail for S.P.B.'s unit and made regular deliveries of fuel to a camp located on the DMZ.  S.P.B. also noted specific instances on October 19 & 20, 1969 where the Veteran delivered supplies along the fence line for the DMZ to support S.P.B.'s unit while it was on alert for military maneuvers.

In October 2016, T.M.R. stated that he was a personal friend of the Veteran and served alongside him in Korea.  T.M.R. stated that his unit was in the field along the DMZ in October 1969.  T.M.R. stated that on October 19 & 20, 1969 the Veteran delivered fuel to T.M.R.'s unit.

The Board concludes that S.P.B. and T.M.R. are both competent to report what occurred during their periods of active service of which they have first-hand knowledge.  See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board finds their statements credible, observing that they are consistent with one another and accord with appellant's reports of what the Veteran had told her about his service in Korea.  The Board finds the statements to be positive, probative evidence placing the Veteran in or near the DMZ between July 1969 and September 1970, to include at least two days in October 1969.

The Board finds that testimony and statements from appellant, and the statements from S.P.B. and T.M.R. are in equipoise with the VA memorandum concerning NPRC records that do not place the Veteran in or near the Korean DMZ.  Considering the totality of the evidence and resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran was present in Korea during the relevant timeframe and is presumed to have been exposed to herbicides in or near the Korean DMZ.  See 38 U.S.C. §§ 1116, 5107(b); 38 C.F.R. §§ 3.3102, 3.307.  Thus, his coronary artery disease and Type II diabetes mellitus-contributory causes of the Veteran's death-are due to the Veteran's active service, and, therefore, service connection for the Veteran's cause of death is granted.  38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.312.


ORDER

Entitlement to service connection for the Veteran's cause of death is granted.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs