Citation Nr: 19129191 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 14-31 793 DATE: April 16, 2019 ORDER Entitlement to service connection for the cause of death is granted. FINDING OF FACT 1. The Veteran died in January 2009. The certificate of death lists the cause of death as metastatic lymphoma. 2. Resolving reasonable doubt in favor of the appellant, the evidence supports a finding that the Veteran is presumed to have been exposed to herbicide agents while stationed in Thailand or while assisting aircraft missions on temporary duty in Vietnam. 3. The Veteran’s metastatic lymphoma was presumed to have been caused by his herbicide exposure in service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1116, 1154, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a), 3.309(e), 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air force from October 1941 to December 1945, August 1950 to August 1954, and September 1954 to June 1972. The Veteran died in January 2009, and an original death claim was received March 2009. The appellant is the Veteran’s surviving spouse. This matter is on appeal from a November 2009 rating decision for service connection for cause of death. The Veteran’s death certificate lists the immediate cause of death as malignant lymphoma. At the time of the Veteran’s death, service connection had not been established for any conditions or disabilities. The appellant was afforded a hearing before the undersigned in September 2015. A transcript of that hearing has been associated with the record. The Board remanded this appeal for additional development in March 2018. Service connection for cause of death Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. See 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. E.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in, or aggravated by, active service was the principal or contributory cause of death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). In order to constitute the contributory cause of death, it must be shown that the service connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1). To comprise the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. See 38 C.F.R. § 3.312 (b). In the case of contributory cause of death, the appellant must show that a service-connected disability contributed substantially or materially to the veteran’s cause of death, that it combined to cause death, or that it aided or lent assistance to the production of death. See 38 C.F.R. § 3.312 (c)(1). Service connection for certain specified diseases may also be granted on a presumptive basis due to herbicide exposure, including Agent Orange, provided the disease manifests to a compensable degree within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e). These diseases include non-Hodgkin’s and Hodgkin’s lymphoma. 38 C.F.R. § 3.309 (e). Determinations regarding service connection are based on a review of all of the evidence in the record, including all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering evidence and determining its probative value, the VA considers both the competency and the credibility of the witness. See Layno, 6 Vet. App. at 469 The appellant asserts that the Veteran was exposed to herbicides while on active duty in Vietnam. The appellant asserts the Veteran performed aircraft missions from Da Nang, South Vietnam and worked on aircraft in hanger bays located in Da Nang. At the September 2015 hearing, the appellant testified the Veteran told her he went to Vietnam for temporary duty for a period of time in 1965. Considering the testimony of the appellant and the evidence submitted in support of her claim, together with his service personnel records, the Board finds that it is at least as likely as not that the Veteran was present on the ground in Vietnam while on active duty. It is the role of the Board as finder of fact to evaluate the credibility of the evidence and to determine the weight that is to be assigned to it. The appellant is competent to testify that the Veteran had told her of his service in Vietnam. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The appellant is found to be credible, and the offered lay statements have been consistent the Veteran’s service records. As such, the Board has no reason to doubt the veracity of the appellant’s statements. The Board remanded this appeal in March 2018 for additional development. The Regional Office issued a supplemental statement of the case in January 2019. The Regional Office conceded the Veteran’s cause of death to be a presumptive disability related to herbicide exposure, stating: “The death certificate showing the cause of death listed as metastatic lymphoma concedes that the Veteran died as a result of a herbicide presumptive as non-Hodgkin’s and Hodgkin’s lymphoma are both considered presumptive and lymphomas fall into one of the two classifications.” As such, the Board has conceded exposure to herbicides in Vietnam during the Veteran’s active service. The Board acknowledges the appellant’s alternative theory that the Veteran was exposed to herbicides while working as an aircraft mechanic and crew chief at a Thailand airbase; but as the Board finds the Veteran was exposed to herbicides in Vietnam, the Board finds it not necessary to address the appellant’s alternative theory for entitlement. Therefore, the Veteran’s metastatic lymphoma is presumed to be associated with his in-service herbicide exposure. The record does not contain clear and convincing evidence to rebut this presumption. As a result, the Board finds the evidence supports a grant of service connection for cause of death for metastatic lymphoma on a presumptive basis as a result of herbicide exposure. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Yang, Law Clerk