Citation Nr: 18130670 Decision Date: 08/30/18 Archive Date: 08/29/18 DOCKET NO. 14-39 620 DATE: August 30, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. The Veteran died in February 2004. The immediate cause of death was determined to be cardiac arrest, with underlying causes of respiratory failure and pneumonia, and diabetes mellitus and temporal arteritis listed as significant conditions contributing to death but not resulting in the underlying cause. 2. The Veteran is not presumed to have been exposed to herbicides while on active duty service in Thailand during the Vietnam Era. 3. The preponderance of the evidence is against a finding that the Veteran’s cause of death was attributable to service, any incident of service, or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1101, 1110, 1116, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to service connection for the cause of the Veteran's death 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). Diabetes mellitus and hypertension will be presumed service-connected if a Veteran was exposed to herbicides in service, even if there is no record of the disease during service. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). If a veteran served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, he or she will be presumed to have been exposed to herbicides. 38 C.F.R. § 3.307. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307(a)(6). This presumption 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). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309 (e), it will be presumed that he was exposed to herbicides if he served in Vietnam between January 9, 1962 and May 7, 1975 (i.e., during the Vietnam era), unless there is affirmative evidence establishing he 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). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309 (e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, 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)(iii) (2017). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309 (e), he or she 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) (West 2002). “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 (a)(6)(iii) (2017). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. In short, the Veteran must have been physically present on the landmass or inland waters of the Republic of Vietnam at some point during his service in order to establish qualifying service in Vietnam. See Haas v. Peake, 525 F.3d 1168, 1197 (2008), cert. denied 129 S.Ct. 1002 (2009). Additionally, VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. See the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (“M21-1MR”). 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. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases (RTAFB) 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. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). The Secretary of Veterans Affairs has determined that there is a presumptive positive association between exposure to herbicides and the disorders listed in 38 C.F.R. § 3.309 (e) (including diabetes mellitus and hypertension). Notwithstanding, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans’ Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses’ personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). To grant service connection for the cause of the Veteran’s death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered 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 service-connected disability will be considered a contributory cause of death when it 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 (c). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). A lay person is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d at 1372). A Certificate of Death issued by the State of California shows that the Veteran died on February 2004 and the immediate cause of death was determined to be cardiac arrest, with underlying causes of respiratory failure and pneumonia, and diabetes mellitus and temporal arteritis listed as significant conditions contributing to death but not resulting in the underlying cause. The Veteran was not service connected for any conditions at the time of his death. The appellant seeks service connection for the cause of the Veteran’s death based on conditions not yet service connected. The appellant primarily contends that the Veteran’s diabetes mellitus and hypertension were caused by exposure to herbicides in Thailand. The appellant also asserts that service connection is warranted for the Veteran’s cause of death because type II diabetes, incurred as a result of exposure to herbicides in Thailand, caused or contributed to the Veteran’s death, either directly or by causing or aggravating his cardiac condition. Initially, the Board observes that the Veteran served in Thailand during the Vietnam Era. His military personnel records reflect that he was stationed at Takhli Air Base and Don Muang Air Base from February 1966 to March 1967. His MOS was listed as electrician for the entire period. The appellant testified during her January 2018 Board hearing that the Veteran worked throughout the bases in Thailand. The RO undertook development in accordance with M21-1, Part IV, Subpart ii, Chapter 1, Section H pertaining to herbicide exposure, and in a Formal Finding dated June 8, 2015, memorialized the U.S. Army and Joint Services Records Research Center’s (JSRRC) June 2015 findings that the Veteran did not have the requisite service in Vietnam to establish presumptive service connection. The JSRRC found that a PIES O19 Request for Pages from the Personnel File showing Unit of Assignment, Dates of Assignment, Participation in Combat Operations, Wounds in Action, Awards and Decorations and Official Travel Outside the U.S. resulted in no conclusive proof of in-country service or other exposure to herbicides. The Formal Finding further determined that given the Veteran’s personnel records, showing a MOS of electrical technician in Thailand, herbicide exposure in Thailand was also not supported as his MOS would not have placed him on the base perimeter. Id. While the appellant and her representative have made vague assertions that the Veteran’s duties would have placed him at the perimeter of military bases in Thailand, a review of the Veteran’s service records contains no references to duties along the perimeter. Moreover, neither the appellant nor her represented presented any details concerning any duties performed along perimeter. Therefore, the Board finds that the preponderance of the evidence is against an indication that the Veteran’s MOS regularly placed him on the perimeter of Takhli Air Base or Don Muang Air Base, Thailand. Accordingly, the presumption of exposure to herbicides based on service in Thailand is not applicable. Id. Furthermore, hemangiomas and pancreatitis are not disabilities presumed from such herbicide exposure. 38 C.F.R. § 3.309 (e). The Board next finds that, at the time of the Veteran’s death, the Veteran had diabetes mellitus. Service treatment records (STR) also show that the Veteran was diagnosed with hypertension in April 1970. As noted above, the Veteran is not presumed to have been exposed to herbicides during service and therefore he is not entitled to presumptive service connection for these conditions. 38 C.F.R. § 3.309 (e). The Veteran was also not service connected for any disabilities at the time of his death. As noted above, the Veteran’s death certificate listed his immediate cause of death as cardiac arrest, with underlying causes of respiratory failure and pneumonia, and diabetes mellitus and temporal arteritis listed as significant conditions contributing to death but not resulting in the underlying cause. A VA medical opinion was rendered in June 2018. Upon a review of the Veteran’s claims file, the physician determined that there was no evidence to show that the Veteran had hypertensive heart disease, ischemic heart disease, coronary artery disease or any other condition directly incurred during service, or due to his hypertension, or due to any exposure to herbicides that could have been the cause of his respiratory failure or cardiac arrest at death. He further found that there was no evidence to show that Veteran’s diabetes mellitus was the cause of any pulmonary or cardiac condition that could have been related to the Veteran’s cardiac arrest at the time of death. The most likely scenario, was that the Veteran had pneumonia which caused his respiratory failure and ultimately a cardiac arrest that might have occurred during a code blue situation or without incident. The physician concluded that after a thorough review of the Veteran’s service file, apart from hypertension, the Veteran had skin/integument conditions and the auto-immune condition of psoriasis, neither of which would be contributory to his cause of death. Thus, there is no cause of death that was otherwise (primary, underlying or contributory) related to his military service. Therefore, from the reasoning above, he arrived at the stated opinions. In sum, as the June 2018 medical opinion is the most probative evidence weighing against the appellant’s claim, the claim must be denied. Although the appellant’s case is sympathetic in nature, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107   (b); 38 C.F.R. § 3.102. As such, service connection for cause of death is not warranted. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel