Citation Nr: 20006730 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 17-29 304 DATE: January 29, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. Giving the benefit of the doubt to the Veteran, the evidence is at least evenly balanced as to whether he was exposed to herbicide agents during his service. 2. The Veteran died in November 2014 and his Certificate of Death, amended February 2015, listed the cause of death first as renal insufficiency, diabetes. 3. The evidence shows that the Veteran’s cause of death is due to his DM-II, which is presumptively related to his exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1116, 1310, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Navy from October 1960 to August 1964 and is a veteran of the Vietnam Era. The Veteran died in November 2014, and the appellant is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). During his lifetime, the Veteran was diagnosed with DM-II and the Appellant contends that his condition was caused by his military service, to include as due to herbicide agent (Agent Orange) exposure. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Service connection may also be granted for specific diseases associated with exposure to herbicide agents. 38 C.F.R. §§ 3.307, 3.309(e). The term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). 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, 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 U.S.C. §§ 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). “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. Id. If a Veteran was exposed to an herbicide agent due to active duty service during the designated period, certain specified diseases shall be presumed to be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, despite the lack of evidence of such disease during service. This presumption is rebuttable only if the provisions of 38 C.F.R. § 3.307(d) are satisfied. The specific diseases associated with herbicide exposure includes DM-II. Id. In making its decision, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the claimant shall be given the benefit of the doubt. 38 U.S.C. §§ 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The RO denied service connection, including presumptive herbicide exposure, for the Veteran’s DM-II, based at least in part, on records and review conducted to verify the Veteran’s exposure to herbicide exposure. The records reviewed and analysis did not affirmatively identify an instance which would confirm that the Veteran was exposed to herbicide agents, or actually spent time “boots on the ground” in the Republic of Vietnam. The response received from the Defense Personnel Records Information Retrieval System (DPRIS) indicated that no aircraft from Heavy Attack Squadron Ten (VAH-10), the unit to which the Veteran was assigned, were recorded as landing in Vietnam and no personnel recorded as stepping foot in Vietnam. The DPRIS response also indicated that it was able to only review the general history for the aircraft carrier on which the Veteran was assigned, and the deck logs, which also do not record any squadron or ships personnel stepping foot in Vietnam. Without a positive showing of this exposure, the RO denied a finding for herbicide exposure. However, the lack of such affirmative proof is not dispositive proof that the exposure did not happen, but a factor for which should considered and given the appropriate weight based on the entire record. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (negative evidence can be considered in weighing the evidence in support of a claim). It is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran’s service treatment records (STRs) show that he was assigned to VAH-123 from April 31, 1963 to August 19, 1964, and that this was his last duty assignment before he transferred to the Navy reserve. His DD-214 shows that he was assigned to VAH-10 as his last unit, and that he received the Armed Forces Expeditionary Medal. Additional documents in his military records show that the Veteran was awarded the Armed Forces Expeditionary Medal for his service with VAH-10, while on board the USS Constellation (CVA-64) from June 6 to July 7, 1964. He also received a letter of commendation, dated August 15, 1964, for his service with VAH-10 for actions during operations related to the Gulf of Tonkin incident in August 1964. In this letter, the Commanding Office, VAH-10, cited messages received from both the U.S. Chief of Naval Operations and the Commander-in-Chief, Pacific Fleet, both of whom noted the short notice for the operations and the operational needs to immediately utilize all available assets in the area of operation for the air strikes against North Vietnam. The officers and crew of the Constellation and VAH-10 were commended for their performance and actions during this sudden crisis combat operation. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, a lay witness is not competent to establish facts or opinions which require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may be considered competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The record contains statements attributable to the Veteran and to others who knew him personally, both during and after his military service. In several statements submitted while he was still alive, the Veteran stated that during this period on two separate occasions he actually went ashore and was “boots on ground” in the Republic of Vietnam as he went with aircraft from the carrier on which he was assigned to deliver supplies. He also stated that he needed to get special authorization to do so, which was granted. The Veteran’s wife also submitted statements and provided testimony to the undersigned Veteran’s law Judge (VLJ) during the December 2019 Board Hearing. She stated that the Veteran told her that while he was on board the aircraft carrier, he actually went ashore on two occasions and she further specified that the supplies were transported from the aircraft carrier to an air base in Vietnam. Another lay witness, J.A., also stated that during the period he knew the Veteran, he was told that he went ashore on two separate occasions to deliver supplies to the air base. Also submitted was a letter form the Veteran to his parents dated June 11, 1964, in which the Veteran described how various planes from his aircraft carrier flew into/above Vietnam and returned to the carrier, and that he was looking forward to some “liberty” away from the ship. In recognition of the difficulty of collecting or preserving proof of service-connected combat conditions, 38 U.S.C. § 1154(b) allows Veterans to establish a presumption of service-connection by lay or other evidence in the absence of official records. This evidentiary mechanism involves a three-step analysis. First, it must be determined whether the Veteran has presented satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. Next, it must be determined whether the evidence is “consistent with the circumstances, conditions, or hardships of such service.” Id. If these two steps are met, the Secretary shall accept the evidence as “sufficient proof of service-connection regardless of the absence of official records. In the third and final step of the analysis, it must be determined whether the government came forward with enough evidence to rebut the presumption with “clear and convincing evidence to the contrary.” Id.; see Maxson v. Gober, 230 F.3d 1330, 1332-1333, (2000). After review of the entire record, the Board finds the lay statements concerning the Veteran’s trips to the air base in the Republic of Vietnam to be from competent sources and, given the record as a whole, consistent and credible. The Board found the strong commendations for the fast paced and comprehensive operational effort put forth in the Gulf of Tonkin incident to be particularly compelling. While the DPRIS records do indicate that no aircraft or personnel from VAH-10 went ashore, the fact remains that the Veteran stated that he went ashore on an aircraft which was bringing supplies, which would not be an attack type aircraft. It is entirely possible, and actually quite probable, that numerous aircraft from other squadrons assigned to the aircraft carrier did take supplies to or from the air base in Vietnam during this crisis operation. The DPRIS records did not record its search of records for all of the squadrons with aircraft which were capable of supply transport. It is also a real possibility that the Veteran new a buddy from that squadron who was able to get his authorization to assist with the transport mission and go ashore, as was stated by the Veteran. Given the operational tempo required and put forth in the Gulf of Tonkin response, the previous reliance on the records which failed to affirmatory establish the Veteran’s exposure to herbicide agents do not meet the “clear and convincing” evidentiary standard to rebut the presumption afforded to the Veteran’s lay statements. Id. For the foregoing reasons, the Board finds that the evidence for the Veteran’s exposure to herbicide agents during his service is at least in a state of relative equipoise. Any reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Turning to the question of whether the Veteran’s death is due to his service, the Board notes that, pursuant to 38 U.S.C. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying Veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). In determining whether the disability that resulted in the death of a Veteran was the result of active service, the laws and regulations pertaining to basic service connection (as set forth above) apply. 38 U.S.C. § 1310 (a). In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). The Veteran died in November 2014 and his Certificate of Death, amended February 2015, listed the cause of death as renal insufficiency, diabetes. As stated above, the Board finds that the Veteran is entitled to a presumption of exposure to herbicide agents during service, and he is therefore also entitled to a presumption of service connection for his DM-II. 39 C.F.R. §§ 3.307, 3.309. For the reasons set forth above, the Board finds that the Veteran’s DM-II, to be both the principal and significant contributing factors in the Veteran’s cause of death. Entitlement to service connection for the cause of the Veteran’s death is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, Associate Counsel 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.