Citation Nr: 21002455 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-51 844 DATE: January 13, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDING OF FACT 1. The Veteran died in May 2014. The immediate cause of death listed on the death certificate was ischemic heart disease, with chronic obstructive pulmonary disease listed as other significant conditions contributing to death. 2. At the time of the Veteran’s death, service connection was not established for any disorders. 3. The Veteran served in Thailand during the Vietnam era and was exposed to herbicide agents. 4. The preponderance of the evidence establishes that the cause of the Veteran’s death was etiologically related to his active service, to include herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1966 to September 1970, with service in Thailand from November 1968 to October 1969. He died in May 2014. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans Appeals (Board) from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board further notes that the December 2014 rating decision that originally denied the appellant’s claim for service connection for the cause of the Veteran’s death never became final as new and material evidence was received within one year of its issuance. Thus, the instant appeal stems from his original claim. Therefore, new and material evidence is not required in order to reopen such claim. See 38 C.F.R. § 3.156(b). In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing. 1. Service Connection for the Cause of the Veteran’s Death The Veteran died in May 2014. The primary cause of death listed on the Veteran’s death certificate is ischemic heart disease, with chronic obstructive pulmonary disease listed as other significant conditions contributing to death. In support of her claim, the appellant asserts that the Veteran’s cause and/or contributing causes of death were the result of his service in Thailand, and that they were the result of exposure to herbicide agents. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(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’ – the so-called “nexus requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be presumed for certain chronic diseases if such disease manifested to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for the cause of the veteran’s death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C. § 1310; 38 C.F.R. § 3.312. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service-connected even though there is no record of such disease during service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309 (e). For the purposes of this section, 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 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. In addition to exposure within the Republic of Vietnam, exposure to Agent Orange has been noted to have occurred in various places, including Thailand. The Compensation Service has issued information concerning the use of herbicide agents in Thailand during the Vietnam War. In a May 2010 bulletin, the Compensation Services indicated that it had determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand, intended to eliminate vegetation and ground cover for base security purposes. According to a July 2014 report from the Defense Personnel Records Information Retrieval System (DPRIS), a primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Although DOD indicated that the herbicide agent use was commercial in nature rather than tactical, the Compensation Service determined that there was some evidence that herbicide agents of a tactical nature, or that of a greater strength than the commercial variant, were used on the Thailand base perimeters. According to the bulletin, 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, as shown by military occupational specialty, performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts found or direct basis. This applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. The designated Thailand bases include the Royal Thai Air Force Bases (RTAFB) of Korat, U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, and Don Muang. See also VBA guidance document. In the present case, the appellant asserts that the late Veteran’s diagnosed heart disorder (ischemic heart disease) and lung disorder (COPD) are related to herbicide agent exposure during active duty. The Veteran’s service records and photographs submitted by appellant show that the Veteran served at Ubon and Korat Royal Thai Air Force Bases. The photographs submitted show the Veteran at or near the perimeter fence at the vases where he served. See service records; photographs. During the January 2021 hearing, the appellant testified that the Veteran took the photographs during his service in Thailand, that she recognized the Veteran in the photographs, that the Veteran had maintained these photographs in his own photo albums and that the Veteran had labeled the photographs himself. If a veteran was exposed to an herbicide agent, certain diseases listed at 38 C.F.R. § 3.309(e) will be considered service connected even though there is no record of such disease in service. Ischemic heart disease is among the listed disabilities attributable to herbicide exposure. It is a disease presumptively associated with herbicide agent exposure. 38 C.F.R. § 3.309(e). At the January 2021 hearing and in multiple submitted statements, the appellant has asserted that the Veteran was exposed to Agent Orange during the course of his duties. The appellant has also alleged that the Veteran’s work as an aircraft mechanic placed him on the flight line, which was close to the perimeter fence and that he performed his recreation at the perimeter fence because it was an open area free of vegetation. The Board concludes that the appellant’s statements are competent and credible, as she is competent to report what the Veteran told her about the nature of his duties. The appellant’s statements are credible as the details are consistent, and the statements are well supported by other evidence of record, to include the in-service personnel records and photographs described above. The Board finds the evidence of record is at least in equipoise as to the question of whether the Veteran was exposed to herbicide agents during service. The DD Form 214 and service personnel records reflect that the Veteran’s military occupational specialty was aircraft electrical repairman, and was stationed at the RTAFB in Ubon and Korat Royal Thai Air Force Bases Thailand from November 1968 to October 1969. See DD Form 214. In sum, the evidentiary record establishes that the Veteran was assigned duties near the perimeter of the air base. As such, considering all the evidence of record, and resolving reasonable doubt in the appellant’s favor, the Board finds that the Veteran’s duties as an aircraft electrical repairman while stationed at the RTAFBs in Ubon and Korat, Thailand, placed the Veteran near the perimeter of the base and resulted in exposure to herbicide agents. 38 U.S.C. § 1154(a). As ischemic heart disease is presumptively associated with herbicide agent exposure, service connection for the cause of the Veteran’s death, ischemic heart disease, as a result of herbicide agent exposure is warranted on a presumptive basis. 38 U.S.C. § 1116; 38 C.F.R. § 3.309, 3.312. Resolving reasonable doubt in the appellant’s favor, the Board finds that service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.