Citation Nr: 20030190 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 15-23 307A DATE: April 29, 2020 ORDER 1. Service connection for Parkinson’s disease as due to exposure to herbicide agents in service is granted. 2. Service connection for type 2 diabetes mellitus as due to exposure to herbicide agents in service is granted. 3. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1151 is denied. REMANDED 4. Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDINGS OF FACT 1. It is reasonably shown that while serving in Thailand from April 1973 to September 1973 and from February 1975 to November 1975 the Veteran was exposed to herbicide agents. 2. The Veteran had a diagnosis of type 2 diabetes mellitus. 3. The Veteran had a diagnosis of Parkinson’s disease. 4. The Veteran’s death is not related to treatment he received from VA and no actual theory of entitlement to compensation under 38 U.S.C. § 1151 claim has been provided by the Appellant or her representative. CONCLUSIONS OF LAW 1. Service connection for Parkinson’s disease is warranted. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309(e). 2. Service connection for type 2 diabetes mellitus is warranted. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309(e). 3. The legal requirements for establishing entitlement to DIC under 38 U.S.C. § 1151 are not met. 38 U.S.C. § 1151; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the surviving spouse of a Veteran who had honorable active duty service from April 1972 to April 1992. The Veteran died in January 2016. This matter is before the Board of Veterans’ Appeals (Board) on appeal from October 2013 and April 2016 rating decisions. The Board notes that in his substantive appeal the Veteran requested a videoconference hearing (for the diabetes and Parkinson’s disease claims). Although he passed before he had opportunity to testify at such hearing, both claims are being granted herein, and the appellant is not prejudiced by the Board continuing with this decision. 1., 2., Entitlement to service connection for Parkinson’s disease and diabetes mellitus, type 2 is granted. The appellant claims that the Veteran’s type 2 diabetes mellitus and Parkinson’s disease are due to his exposure to herbicide agents while serving in Thailand. Type 2 diabetes mellitus was diagnosed in October 2012, and Parkinson’s disease was diagnosed in February 2012. The appellant contends that the Veteran was exposed to herbicides, including Agent Orange, in the course of his service at Udorn and Korat Air Force Bases where his duties placed him near or at the base perimeter. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Diabetes mellitus type 2 and Parkinson’s disease may be presumed to be service connected as due to exposure to herbicide agents if manifested in a Veteran who served in Vietnam during the Vietnam Era. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The presumptive provisions of 38 U.S.C. § 1116 have been extended to encompass Veterans shown to have been otherwise exposed to tactical herbicides in service, including while serving in Thailand, or on the DMZ in Korea. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. 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. That 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 of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a Veteran served on one of those air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter (during the Vietnam Era) as shown by MOS (military occupational specialty) or other credible evidence, herbicide exposure should be acknowledged on a facts-found basis. If the Veteran did not engage in perimeter security duties, he or she is then asked to provide approximate dates, location, and nature of the alleged exposure. If the information is provided, the case should be forwarded to the Joint Services Records Research Center (JSRRC) for a formal finding regarding herbicide exposure and the claim is decided based on the evidence of record. The record reflects that the Veteran served in Thailand (during the Vietnam era) at Korat Air Force Base (Korat) as an aerospace ground equipment repairman from April 1973 to September 1973 and from February 1975 to November 1975. An April 1975 service treatment record (STR) notes service at Udorn Air Force Base (Udorn). Military personnel records note that his duties required that he pick up and deliver all assigned aerospace ground equipment and provide close support and technical assistance to the flight line maintenance crew. A July 2013 VA memorandum notes that a reply from the National Personnel Records Center (NPRC) to a request for development through PIES shows no record of the Veteran’s exposure to herbicides, however, military personnel records confirmed his service in Thailand. Noting that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties place them on or near the perimeter of Thailand military bases, the prescribed steps were followed, and a concession of exposure to herbicides was supported. A review of the Veteran’s military personnel records showed that he served in the U. S. Air Force in Thailand during the Vietnam era. Performance evaluation reports for the period of April 5, 1973 to September 24, 1973 and February 11, 1975 to November 17, 1975 show that he was stationed at Korat in the capacity of an aerospace ground equipment maintenance technician. These reports indicated that the Veteran’s duties included providing close support to flight line maintenance activities and involved the pick-up and movement of required aerospace equipment as directed. It was noted that the work duties could not be reasonably disassociated or excluded from those listed in VA guidance to concede herbicide exposure on a facts found basis. The memorandum found the evidence credible and that it substantiated the Veteran’s contentions of exposure by resolving reasonable doubt in favor of the Veteran. His exposure to tactical herbicides while stationed in Thailand was conceded. On August 2013 VA mental health examination, dementia due to Parkinson’s disease was diagnosed. The examiner opined that it was at least as likely as not that the Veteran’s Parkinson’s disease was related to his service. He explained that a review of the medical treatises indicated that exposure to herbicide agents caused Parkinson’s disease. On August 2013 VA diabetes examination, type 2 diabetes mellitus was diagnosed. An October 2013 VA memorandum indicates that there was a lack of information required to corroborate the Veteran’s exposure to Agent Orange in Thailand. It was noted that a thorough review of the Veteran’s file had been completed and that the July 2013 VA Memorandum (that conceded the Veteran’s exposure to herbicide agents) should be considered invalid. Although his records showed that he served at Korat from June 1975 to March 1976 as an aerospace ground equipment technician, the records did not show an assignment that would have placed him on or near the perimeter at Korat. In June 2015 the Veteran submitted documents from online sources that included maps of Udorn and Korat and information related to the location of flight lines, airmen housing, and recreational sites. Notably, the documents indicate that the initial flight line for Korat was located toward the center of the base, but by the time the Veteran’s unit arrived, another flight line (that would have used) had been constructed near the northeast perimeter. Also provided was an excerpt from U.S. Army Field Manual 3-3 Tactical Employment of Herbicides, December 1971, which notes that herbicides (sprayed along the perimeter) would drift 500 meters. It was also noted that servicemembers who left the base used the perimeter road. The critical question here is whether the Veteran served at or near the perimeter while stationed at Korat and/or Udorn. If so, it may reasonably be conceded that he was exposed to herbicides while serving in Thailand. His service personnel records clearly indicate that he was stationed in Thailand from April 5, 1973 to September 24, 1973 and February 11, 1975 to November 17, 1975. However, there are conflicting VA memoranda regarding whether or not the Veteran was exposed to herbicide agents. The July 2013 memorandum notes proper Thailand service dates for the Veteran, lists his work duties, and indicates that such work duties could not be reasonably disassociated or excluded from those listed in VA guidance to concede herbicide exposure on a fact found basis (suggesting that research was undertaken concerning the proximity of such duties to the base perimeter). The October 2013 memorandum only notes Thailand service dates from June 1975 to March 1976, indicating a less than thorough review of the record. Therefore, the Board finds that the July 2013 memorandum is more persuasive. The Veteran also provided lay evidence regarding the circumstances of his service indicating that he worked on the flight line, which at least during his service at Korat, would have been near the perimeter. The maps provided and the guidance from Army Field Manual 3-3, suggest that at any time, at least part of the flight line (to include the apron where maintenance duties most likely would have taken place) would have been in the 500-meter herbicide drift zone. He also reported that his sleeping quarters at Udorn (mistakenly noted as Ubon) were near the perimeter, which he is competent to report. The Board finds no reason to find his accounts not credible. His descriptions are consistent with the circumstances of his service. The record shows that the Veteran served in Thailand during the Vietnam Era, and the evidence outlined above leaves at least in equipoise whether or not he was exposed to herbicide agents in service. He has diagnoses of Parkinson’s disease and type 2 diabetes mellitus. As, based on facts found, he is entitled to consideration of his claim under the presumptive provisions of 38 U.S.C. § 1116, all of the requirements for substantiating his claim of service connection for Parkinson’s disease and type 2 diabetes mellitus are met; service connection for Parkinson’s disease and type 2 diabetes mellitus is warranted. 3. Entitlement to DIC under 38 U.S.C. § 1151 is denied. In order for a death to qualify for DIC under 38 U.S.C. § 1151, the death must not have been the result of the Veteran’s willful misconduct and was caused by VA hospital care, medical or surgical treatment, or examination and the proximate cause of death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C. § 1151 (a); see also Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013) (“Section 1151 thus contains two causation elements; a Veteran’s disability must not only be ‘caused by’ the hospital care or medical treatment he received from the VA, but also must be ‘proximately caused’ by the VA’s ‘fault’ or an unforeseen ‘event’). To establish causation of a death, the evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in the Veteran’s death. Merely showing that a Veteran received VA care, treatment or examination and that the Veteran died does not establish causation. 38 C.F.R. § 3.361(c). The Appellant completed a VA 21-534 application of dependency and indemnity compensation or death pension by a surviving spouse or child in February 2016. She checked that she was claiming DIC under 38 U.S.C. § 1151. No further explanation for the assertion was provided on the form. The Appellant has not made any specific contentions as to why she believes she is entitled to DIC under the provisions of 38 U.S.C. § 1151. In a February 2017 Notice of Disagreement (NOD) the appellant mentions DIC, but the discussion involves her assertion that the Veteran was exposed to Agent Orange (AO) in service which caused his Parkinson’s disease, which, in turn, caused his death. In April 2017 statements, she again asserts that the Veteran’s exposure to AO in service caused his death. No assertions were made regarding VA’s treatment alleged involvement in the Veteran’s death. Other (later) statements by the appellant are similar in that they might note her pursuit of DIC (as to the cause of the Veteran’s death) but no contentions are made regarding entitlement to DIC under 38 U.S.C. § 1151 (there is no mention of VA fault regarding the Veteran’s death). Additionally, no actual argument was submitted on the Veteran’s behalf by the appellant’s representative. An April 2020 Informal Hearing Presentation (IHP) lists entitlement to DIC under 38 U.S.C. § 1151, but the representative’s argument did not address, in any way, a claim of entitlement to DIC under 38 U.S.C. § 1151. A review of the evidence and argument demonstrates that even the low threshold standard for when a medical examination or medical opinion is required under 38 C.F.R. § 3.159 (c)(4) is not met, and that an examination in connection with this claim is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the lack of evidence and argument to support the claim for DIC under 38 U.S.C. § 1151, the appeal in this matter must be denied. REASONS FOR REMAND 4. Entitlement to service connection for the cause of the Veteran’s death. An April 2016 rating decision denied service connection for the cause of the Veteran’s death because his only service-connected disability was tinnitus, and Lewy body dementia was not shown in service. The appellant contends, in various statements, that the Veteran’s cause of death (Lewy body dementia, as listed on the death certificate) is attributable to a service-connected disability. She submitted articles regarding Parkinson’s disease (for which service-connected is granted herein) and asserts that it is a Lewy body disorder caused by Lewy bodies in the area of the brain that control movement. The record does not contain a medical opinion that addresses whether the Lewy body disorder, listed as the cause of the Veteran’s death was caused or aggravated by his service-connected Parkinson’s disease. Remand for such an opinion is necessary. 38 C.F.R. § 3.159 (c)(4). The matters are REMANDED for the following: Arrange for the Veteran’s record to be forwarded to a physician with appropriate expertise for review and an advisory medical opinion regarding the cause of the Veteran’s death in January 2016. Based on review of the claims file, the examiner should provide an opinion that responds to the following: (a) Identify (by diagnosis) the cause(s) of the Veteran’s death and all significant contributing conditions. (b) Is it at least as likely as not (a 50 percent probability or greater) that any identified cause of death or significant contributing condition is etiologically related to (caused or aggravated by) the Veteran’s Parkinson’s disease and diabetes disabilities? (The rationale must address the articles discussing Lewy body dementia and Parkinson’s disease submitted by the appellant.) (c) If the consulting physician is unable to provide the requested opinion without resort to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required, or the provider does not have the requisite knowledge or training). (d) The consulting provider should note the following regulatory guidance: A principal cause of death means that a medical condition was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death means that a medical condition, not related to the principal cause of death, 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. The consulting physician must explain the rationale for all opinions, with citation to the clinical/factual data as appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.