Citation Nr: 20006441 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 17-34 718 DATE: January 28, 2020 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran died in January 2009. His death certificate shows that the immediate cause of his death was chronic lymphocytic leukemia. 2. The Veteran had no service-connected disabilities at the time of his death. 3. The probative evidence does not show that the Veteran was exposed to herbicide agents during service or that his cause of death was due to disability that was incurred in or aggravated by service. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from September 1965 to February 1974. The Veteran died in January 2009. The appellant is the surviving spouse of the Veteran. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2019. A transcript is of record. 1. Entitlement to service connection for cause of death is denied The appellant asserts that the Veteran was exposed to herbicide agents during active service and developed fatal chronic lymphocytic leukemia as a result. She believes he was exposed to herbicide agents in two location. First, she asserts that her late husband was stationed in Gulfport, Mississippi, a location known to have stored Agent Orange from 1968 to 1970. Second, the appellant asserts that the Veteran was exposed to herbicide agents while maintaining and repairing C-123 aircraft. See October 2019 Board hearing transcript. The appellant does not assert, and the Veteran’s service personnel records do not show, that his service involved duty or visitation in the Republic of Vietnam. For the reasons that follow, the Board finds that the claim must be denied. To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). In general, service connection requires competent, credible 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, certain diseases including chronic lymphocytic leukemia, shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. Specific to the appellant’s case, effective June 19, 2015, VA amended its regulation governing individuals presumed to have been exposed to certain herbicide agents by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent ("Agent Orange") during the Vietnam era. Specifically, the new regulation states that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code (AFSC) indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 C.F.R. § 3.307 (a)(6)(v). A review of the Federal Register reveals that only some C-123s were used to actually spray herbicides in Vietnam. 80 Fed. Reg. 35,246 (June 19, 2015). For this reason, the presumption of herbicide exposure under 38 C.F.R. § 3.307 (a)(6)(v) is limited to contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. VA has published a list of military units who had regular and repeated exposure to contaminated Operation Ranch Hand C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members. VA has also published a list of specialty codes for military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members. Those codes for enlisted personnel are flight engineer/aircraft loadmaster (1130-1149), aircrew life support specialist (1220-1229), and aircraft maintenance specialist/flight technicians (4313-4359). Id. Thus, to warrant presumptive exposure based on contact with a C-123, a Veteran must have been stationed at one of the identified bases during the specified time period with one of the listed units. The Veteran must also have a military occupational specialty that entailed that he regularly and repeatedly operated, maintained or served onboard C-123 aircraft. The Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Analysis The Veteran died in January 2009. A February 2009 death certificate reflects that his primary cause of death was chronic lymphocytic leukemia. No other conditions were listed. At the time of death, the Veteran was not service-connected for any disability. The Veteran’s DD 214s show his military occupational specialties included avionic navigational system technician, NVA equipment repairman, and aircraft electrician. Service personnel records dated in September 1965 show the Veteran was initially assigned to Lackland Military Training Center located in Lackland Air Force Base (AFB), Texas. Air Force performance reports dated in December 1966, May 1967, and December 1967 reflect the Veteran was stationed in Wright-Patterson AFB in Ohio from September 1965 to December 1967 as an aircraft navigation system repairman for B-52 and KC-135 aircrafts. In a report dated in June 1968, the Veteran remained in Wright-Patterson AFB from until June 1968 as a technical order librarian. In performance reports dated in June 1969 and November 1969, the Veteran was stationed in March AFB in California from June 1968 to November 1969 as an airborne navigational mechanic. He performed flight line and bench maintenance on navigation equipment installed in B-52, KC-135, and base flight aircrafts. In a performance report dated in June 1970, the Veteran was stationed in Eielson AFB in Alaska from June 1969 to June 1970 as aircraft electronic navigation equipment repairman. He performed flight line and in-shop maintenance on all navigation equipment on RC-135 and TDY KC-135A aircrafts. In a report dated in September 1970, he remained in the Eielson AFB as an aircraft repairman from until September 1970; no aircraft model was noted. In reports dated in September 1971 and August 1972, the Veteran was stationed in Eielson AFB as a wing avionics expediter from September 1970 to July 1972. In a report dated in October 1972, the Veteran remained in Eielson AFB as an aircraft repairman until October 1972, and maintained RC/KC-135 aircraft. In a report dated in February 1974, the Veteran was stationed in Kincheloe AFB in Michigan from October 1972 to February 1974 as a radar systems analyst. The Veteran was discharged from active service in February 1974. The evidence fails to corroborate the appellant’s assertion that the Veteran was assigned to Gulfport, Mississippi, at any time during active service. No performance report, service treatment record, or other record in the Veteran’s file indicate that he was stationed in Gulfport, Mississippi. The preponderance of evidence is against finding that the Veteran was exposed to herbicide agents in Gulfport, Mississippi. Further, the evidence fails to corroborate the appellant’s assertion that the Veteran was exposed to herbicide agents via C-123’s, or more specifically, that he regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. The appellant’s testimony before the Board reflects no more than her speculation as to the model of the aircraft and the presence of Agent Orange residue on the aircrafts the Veteran repaired in service. There is no official corroboration of the appellant’s general assertion that the Veteran regularly and repeatedly operated, maintained, or served onboard C-123 aircraft. Rather, review of the Veteran’s extensive personnel records show that the Veteran repaired and maintained navigation systems in B-52, KC-135, and RC/KC-135 aircrafts – not C-123 aircraft. He is not shown to have been assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code (AFSC) indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 C.F.R. § 3.307 (a)(6)(v). While no presumption of herbicide agent exposure has been satisfied, the appellant is nevertheless entitled to show that the Veteran was actually exposed to herbicide agents while in service. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The credible and competent evidence of record fails to corroborate the appellant’s contention that the Veteran was otherwise actually exposed to an herbicide agent in service. Lay statements may be competent to support a claim for service connection by supporting the occurrence of events observable by a lay person via the natural senses. 38 C.F.R. §§ 3.303 (a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, a determination of whether the Veteran was exposed to specific herbicide agents in service requires specialized training for a determination as to what a particular chemical is, even if present, and specialized training for a determination as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). As actual exposure to herbicide agents in service is not established, the appellant cannot link the Veteran’s fatal leukemia to such exposure. There otherwise is no competent and credible evidence to otherwise establish that the Veteran’s fatal chronic lymphocytic leukemia was incurred in or aggravated by service, such that service connection for the cause of death is warranted. The appellant has not presented competent and persuasive evidence in this regard. There is no medical opinion of record that associates the Veteran’s chronic lymphocytic leukemia to his active service. Determining the etiology of a disability such as chronic lymphocytic leukemia is a complex medical question requiring certain expertise the appellant has not been shown possess through any specialized education, medical/scientific training or experience. Therefore, her lay opinion regarding the etiology of chronic lymphocytic leukemia, and whether it is etiologically related to the Veteran’s military service, is not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board is grateful for the Veteran’s service and is sympathetic to appellant’s beliefs regarding the Veteran’s cause of death; however, the preponderance of the competent evidence is against the claim. As the preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine does not apply. Service connection for the Veteran’s cause of death is not warranted. 38 U.S.C. § 5107 (b). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.