Citation Nr: 21069877 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 19-05 563 DATE: November 22, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDING OF FACT Resolving reasonable doubt in the appellant's favor, the Veteran's coronary artery disease, was an underlying cause of the Veteran's death and at least as likely as not the result of his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1962 to November 1983. The Veteran died in June 2018. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018 the appellant filed a timely notice of disagreement (NOD) and in December 2018 the RO issued a statement of the case. In January 2019, the appellant submitted a substantive appeal. In September 2021, the appellant testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The claims file includes evidence, which have not been initially considered by the AOJ. However, in September 2021, the Veteran submitted a waiver of AOJ consideration of additional evidence, waiving initial AOJ consideration of the newly submitted evidence. See 38 C.F.R. § 20.1304(c). Accordingly, appellate consideration may proceed without any prejudice to the Veteran. This appeal has been advanced on the docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2020). 1. Entitlement to service connection for the cause of the Veteran's death is granted. The appellant contends that service connection is warranted for the Veteran's cause of death. The Veteran died in June 2018. His death certificate lists congestive heart failure and coronary artery disease as cause of death. At the time of his death, the Veteran was not service connected for congestive heart failure and/or coronary artery disease. The appellant contends the Veteran served at the Takhli Air Force Base (AFB), near and/or on the perimeter, during his active duty service, and thus presumptive service connection for coronary artery disease and cause of death is warranted. See, e.g., January 2019 VA Form 9. A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal 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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability is one that was incurred in or aggravated during active service, or may be presumed to have been incurred during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if 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: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes, Hodgkin's disease, ischemic heart disease (IHD) such as atherosclerotic cardiovascular disease and coronary artery disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). More recently, bladder cancer, hypothyroidism, and Parkinsonism were added to the list. See William M. Thornberry National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283. Here, the Appellant has claimed that the Veteran was exposed to herbicides while stationed in Thailand. VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). 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" (Project CHECO Report). 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. This 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 these 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 MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H.5.b. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Turning the evidence of record, the appellant was married to the Veteran at the time of his death in June 2018. The death certificate lists the immediate cause of his death as congestive heart failure and coronary artery disease. The Veteran's military personnel records reflect that he served in Thailand during the Vietnam Era. During his service in Thailand, he was stationed at Takhli AFB in the field maintenance squadron. His military occupational specialty (MOS) was a jet engine mechanic. See generally Military Personnel Record. In an April 2019 buddy statement, a fellow service man reviewed the Veteran's military personnel records, to include his performance reports concerning his assignments while at the Takhli AFB. He summarized that the reports show that the Veteran was responsible for assisting in the removal and installation of jet engines. See generally Military Personnel Record. He submitted a map of the Takhli AFB indicating where the Veteran performed his duties as a jet engine mechanic, which included spending extensive periods of time near the perimeter of the base. Although the serviceman did not serve with the Veteran, he did serve at the same base within two years of the Veteran's departure, had the same MOS, and asserted that the base had not changed since the Veteran's service at the base. See also November 2019 Buddy Statement (another service member indicating the same). Following a review of the evidence and the applicable legal criteria, affording the appellant the benefit of the doubt, for the reasons detailed below, the Board finds that entitlement to service connection for cause of death is warranted. Here, the evidence of record clearly establishes that the Veteran's cause of death includes coronary artery disease and that the Veteran served in at the Takhli AFB Thailand during the Vietnam Era. The salient question is thus whether the Veteran's coronary artery disease is related to his service during the Vietnam era. In this regard, the appellant has submitted a buddy statement indicating that the Veteran's duties required him to consistently work on/near the perimeter of the air force base. The Board finds the April 2019 buddy statement of highly probative value. Specifically, the serviceman reviewed the Veteran's record, and the statement is based on the serviceman's personal knowledge. Furthermore, the statement is corroborated by additional competent and credible lay statements. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); November 2019 Buddy Statement. Accordingly, affording the appellant the benefit of the doubt, the Veteran served on active duty on/near the perimeter at one of the designated Thailand military bases during the Vietnam era and at a time at which VA has acknowledged that herbicides were used near those air base perimeters in Thailand. Because the evidence established that the Veteran served consistently on/near the perimeter of the Takhli AFB, resolving all doubt in favor of the appellant, the weight of the evidence establishes that the Veteran was exposed to herbicides in Thailand. As such, service connection on a presumptive basis for coronary artery disease, which ultimately contributed to the Veteran's death, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim for entitlement to service connection for cause of death is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.