Citation Nr: 18112632 Decision Date: 06/20/18 Archive Date: 06/19/18 DOCKET NO. 16-48 417 DATE: June 20, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran had service in close proximity to the perimeter of the Nakhon Phanom Air Force Base in Thailand from December 1966 to January 1968, thus the Veteran is presumed to have been exposed to herbicides during active service. 2. The competent evidence of record shows that the Veteran was diagnosed with diabetes mellitus, type II, which is presumed to be related to his in-service exposure to herbicide agents while serving in close proximity to the perimeter of the Nakhon Phanom Air Force Base in Thailand. 3. As the Veteran is presumed to have been exposed to herbicides during his service in Thailand, the contributory cause of the Veteran’s death, diabetes mellitus, type II, is at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. § 1110, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1965 to December 1968. The Veteran died in November 2014. The appellant is the Veteran’s surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 1. Service Connection for Cause of the Veteran’s Death The appellant contends that she is entitled to service connection for the cause of the Veteran’s death. The Veteran died in November 2014. The Veteran’s death certificate lists esophageal cancer as the immediate cause of death and type 2 diabetes as an other significant condition contributing to death. See, November 2014 Death Certificate. Compensation may be paid to a veteran’s surviving spouse when a veteran dies of a service-connected disability. 38 U.S.C. § 1310 (2012). A veteran “dies of a service-connected disability” if the disability was the principal or a contributory cause of death. 38 C.F.R. § 3.312 (2017). The principal cause of death is when a “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). A contributory cause of death “contributed substantially or materially” to the death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Id. In order to establish service connection for the claimed disorder on a direct incurrent basis, generally there must be probative 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A Veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a) (6) (iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a) (6) (ii). The law also provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a) (1); 38 C.F.R. § 3.307 (a) (6). In addition, VA’s Compensation & Pension Service has issued information concerning the use of herbicides in the Kingdom of Thailand (Thailand) during the Vietnam War. In a May 2010 bulletin, Compensation & Pension Service indicated that it had 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. According to a June 2014 report from the Defense Personnel Records Information Retrieval System (DPRIS), a primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), Compensation & Pension Service determined that there was some evidence that herbicides of a tactical nature, or that of a greater strength than the commercial variant, were used on the Thailand base perimeters. According to the bulletin, 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 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. The designated Thailand bases were the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Stated another way, Compensation & Pension Service has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a “facts found or direct basis” should be extended to those veterans. Significantly, Compensation & Pension Service stated that “[t]his allows for presumptive service connection of the diseases associated with herbicide exposure.” Disorders that are associated with herbicide exposure for purposes of this presumption include type II diabetes (also known as type II diabetes mellitus or adult-onset diabetes). 38 U.S.C. § 1116 (a) (2); 38 C.F.R. § 3.309 (e). Here, the Board recognizes that diabetes mellitus, may be presumed to be related to service if it can be shown that the Veteran was exposed to herbicides during active service. The appellant has argued that the Veteran was exposed to herbicides while stationed in Thailand. His DD Form 214 indicates that his military occupational specialty was weapons mechanic. Additionally, a March 1966 hearing examination reflects that the Veteran’s primary work area was the flight line. His service personnel records indicate that he was assigned to Nakhon Phanom Royal Thai Air Force Base from December 1966 to December 1968. As discussed above, it has been determined by the Department of Defense that there was significant use of herbicides on the fenced perimeters of military bases in Thailand meant to eliminate vegetation and ground cover for base security purposes. As a consequence, it must be determined whether the Veteran’s duties would have placed him near the perimeter of a military base in Thailand. The Veteran was neither a security policeman, security patrol dog handler, nor a member of a security police squadron. However, the appellant has argued that the flight line of the Nakhon Phanom Royal Thai Air Force Base was adjacent to the base perimeter. Additionally, the appellant provided VA a picture of the Nakhon Phanom Royal Thai Air Force Base showing that the flight line was adjacent to the perimeter fencing. See, Correspondence, received May 2018. To this point, the Board again emphasizes that, although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), Compensation & Pension Service determined that there was some evidence that herbicides of a tactical nature, or that of a greater strength than the commercial variant, were used on the Thailand base perimeters. The presumption of herbicide exposure for those working on or near the perimeter of the designated Thai air bases extends throughout the Vietnam era, from February 28, 1961, to May 7, 1975. A review of several pictures of Nakhon Phanom Royal Thai Air Force Base reveals that the flight line was indeed in close proximity to the base perimeter. Evidence of record clearly establishes that the Veteran served at one of the designated Thai air bases (i.e., Nakhon Phanom). The Veteran also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicides were used near those air base perimeters in Thailand. The Board finds the Veteran’s military occupational specialty as weapons mechanic could require work near the perimeters of Nakhon Phanom as consistent with the circumstances, conditions, and hardships of his service. In any event, as noted, the Compensation & Pension Service has determined herbicide use occurred in the perimeter areas of Nakhon Phanom Thai Air Base. There also is no evidence in the file that is inconsistent with the evidence that the Veteran would have been exposed to the perimeters of the base while stationed at Nakhon Phanom. Resolving all doubt in favor of the appellant and based on the facts found, the Board has determined that the Veteran was exposed to herbicide agents during active service in Thailand. 38 C.F.R. § 3.102. The evidence further shows that the Veteran was diagnosed with diabetes mellitus, type II that was a contributing cause of his death. As the Board finds that the Veteran was exposed to herbicide agents during his service in Thailand, and diabetes mellitus, type II, is a disease that has been shown to be associated with exposure to herbicide agents; it is presumed that his disorder was incurred in service. As such, service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Lana K. Jeng Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel