Citation Nr: 20021798 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 19-22 360A DATE: March 27, 2020 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran died on April [REDACTED], 2018. 2. The evidence does not show the Veteran was exposed to herbicides or that his death was otherwise related to service. CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1310, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Air Force from February 1972 to February 1976. The Veteran passed away on April [REDACTED], 2018. The Appellant is the Veteran’s surviving spouse. Entitlement to service connection for cause of death Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The law provides a presumption of service connection for certain diseases, including ischemic heart disease and diabetes mellitus, that are associated with exposure to herbicide agents and that become manifest within a specified time period even if there is no record of evidence of such disease during the period of service. Exposure to herbicide agents in presumed in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in or near the Korean demilitarized zone (DMZ) during specified periods of time. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran’s death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as 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). A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a Veteran’s death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; 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)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In this case, the Veteran’s certificate of death reflects he died in April 2018. The cause of death was listed as sudden cardiac death with contributing factors of hypertensive and atherosclerotic cardiovascular disease, diabetes mellitus, and chronic ethanol abuse. At the time of his death, the Veteran was not service connected for any disabilities. As such, it is necessary to determine whether service connection could have been established for sudden cardiac death, hypertensive and atherosclerotic cardiovascular disease, diabetes mellitus, or chronic ethanol abuse. The claims folder does not reflect that the Veteran complained of or received treatment for any cardiac disability, hypertensive and atherosclerotic cardiovascular disease, diabetes mellitus, or chronic ethanol abuse while in service or within one year from his military service. The Veteran’s service treatment records are silent for complaints, findings, treatment, or diagnoses related to cardiac disability, hypertensive and atherosclerotic cardiovascular disease, diabetes mellitus, or chronic ethanol abuse. The Appellant has not alleged that the conditions were symptomatic in service or at any time soon thereafter. Rather, the Appellant believes the Veteran’s sudden cardiac death, hypertensive and atherosclerotic cardiovascular disease, diabetes mellitus, and chronic ethanol abuse should be service connected on as due to exposure to herbicides, specifically Agent Orange, during his period of service. The Appellant, through her representative, has asserted that the Veteran was exposed to herbicide agents during his service in Thailand. The Veteran’s military personnel records show he was stationed at the Korat Royal Thai Airforce Base (RTAFB) during the Vietnam era. The Veteran’s DD-214 indicates the Veteran served as a missile systems maintenances specialist. Information from the Department of Defense (DoD) establishes that herbicides, such as Agent Orange, were largely used and stored in Vietnam, not Thailand. The DoD list indicates only limited testing of Agent Orange was conducted in Thailand from April 2, 1964 through September 8, 1964. Specifically, the location identified was the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand. The report of these tests noted that 5 civilian and 5 military personnel from Fort Detrick, Maryland conducted the spray operations and subsequent research. This location was not near any U.S. military installation or Royal Thai Air Force Base. Instead of the large-scale use of herbicides in Vietnam, in Thailand, herbicides were used along base perimeters. Therefore, if a veteran’s MOS or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to these herbicides. For example, security police units were known to have walked the perimeters, especially dog handlers. The Veteran did not have an MOS that was shown to have had regular contact with the base perimeter. The Appellant has not identified evidence that the Veteran served near the base perimeter or in close proximity to the spaying of herbicides, either in the form of records or reports from the Veteran prior to his death. The Appellant’s representative asserted that the Veteran’s MOS would have put him on the flight line and submitted an article that herbicides sprayed on the perimeter could have drifted up to 500 meters, which would include parts of the flight line and apron. The article does not explain under what circumstances or how often such drift would occur. The Veteran’s service personnel records discuss his duties of building, maintaining, testing, and handling “Air Launched Intercept Missiles and all associated ground equipment.” These records make no mention of the Veteran working on or near the base perimeter. The Board finds the assertion that herbicides sprayed on the ground could drift for up to 500 meters including parts of the flight line and apron too speculative to form a basis of exposure for this specific Veteran. The Board acknowledges the representative’s general contentions that there was significant use of herbicides at numerous Thailand military basis, that the VA’s Thailand policy should be applied broadly and liberally and that the Memorandum of Record should not be an adjudicative tool, and that the Appellant should be given the benefit of the doubt in finding Veteran exposed to herbicide agents. The representative’s arguments largely appear to assert that exposure to herbicides is shown simply because the Veteran was stationed at an airbase in Thailand. He analogizes these circumstances to the policies in place for veterans who served in the Republic of Vietnam. The Board finds the laws and regulations in this area have made a clear distinction concerning the likelihood of exposure of veterans in Vietnam where herbicides were released from low-flying airplanes and those in Thailand where herbicides were sprayed to clear vegetation at the perimeters of the bases. For veterans serving in Thailand, exposure to herbicides is not presumed but must be shown by the evidence. The representative also cites Parseeya-Picchione v. McDonald, 28 Vet. App. 171 (2016), but the Board finds a clear distinction in the facts of Parseeya-Picchione, where there was evidence in the form of lay statements and the location of the Veteran’s camp along the perimeter of Korat Air Force Base, and the case at hand, where there is no such evidence suggesting the Veteran served near the perimeter. In sum, the Board finds there is no evidence showing the Veteran worked on the base perimeter or was ever exposed to herbicides. The evidence simply does not reach the level of equipoise on this question, and the benefit of the doubt doctrine is inapplicable. See 38 U.S.C. § 5107(a). Accordingly, the presumptive provisions concerning ischemic heart disease, diabetes mellitus type II, and herbicide exposure are not available, and service connection on a presumptive basis is denied. 38 C.F.R. § 3.307(a)(6); 38 C.F.R. § 3.309(e). Moreover, there is no basis to establish a nexus between sudden cardiac death, hypertensive and atherosclerotic cardiovascular disease, diabetes mellitus, or chronic ethanol abuse and service. 38 C.F.R. § 3.303. The Board is sympathetic to the Appellant and grateful for the Veteran’s service. This decision is not meant to detract from his honorable service. However, the Board finds service connection for the cause of the Veteran’s death is not warranted. A. P. Armstrong Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.