Citation Nr: 21072356 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-38 343A DATE: December 2, 2021 ORDER Entitlement to service connection for cause of the Veteran's death is granted. FINDING OF FACT 1. The death certificate establishes that the Veteran died in August 2017 at the age of 84, with non-Hodgkin's lymphoma as the underlying cause of death and diabetes mellitus, hypertension, and cardiomyopathy as contributing causes of death. 2. At the time of the Veteran's death, the Veteran had no service- connected disabilities. 3. Service records establish the Veteran served in Vietnam at least once on a temporary duty assignment at Tan Son Nhut Air Base during the period from July 1966 to October 1966. 3. The fatal disease, non-Hodgkins lymphoma, and a disease contributing to death, diabetes mellitus, are presumed to be caused by exposure to certain herbicides, including Agent Orange CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 1310, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1950 to February 1954 and in the United States Air Force from April 1955 to March 1973. The Veteran died in August 2017. The Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The Veteran and the Appellant were married in July 1955. Service treatment records do not contain a complaint, finding, history, treatment, or diagnosis of non-Hodgkins lymphoma (NHL), type 2 diabetes, hypertension, or cardiomyopathy. The service records establish that the Veteran's permanent duty stations did not include Vietnam. However, a personnel record, an evaluation for the period from July 1966 to October 1966, demonstrates the Veteran helped to set up an analysis system work structure and procedures for the preparation and review of reports at Tan Son Nhut Air Base during this period. It appears that the Veteran's service at Tan Son Nhut Air Base was a temporary duty assignment from the Veteran's regular duty station in the Philippines. The Board takes judicial notice that Tan Son Nhut Air Base was a Republic of Vietnam Air Base located near Saigon, Vietnam. Monzingo v. Shinseki, 22 Vet. App. 97, 103 (2012) (Judicial notice may be appropriate for facts that are "of universal notoriety that are not subject to reasonable dispute.") The Appellant testified that the Veteran went to Vietnam three times on a temporary duty assignment. The Veteran unfortunately died in August 2017. The death certificate lists non-Hodgkin's lymphoma as the underlying cause of death and type 2 diabetes mellitus, hypertension, and cardiomyopathy as contributing causes of death. Corresponding medical records confirm the Veteran initially sought treatment for NHL in August 2016 and had previously been diagnosed with diabetes mellitus (diabetes), hypertension, and coronary artery disease resulting in a coronary artery bypass graft occurring in December 2013. When any Veteran dies from a service- connected disability, VA will pay dependency and indemnity compensation to such Veteran's surviving spouse. 38 U.S.C.A. § 1310. 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. The service- connected disability will be considered as the 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. A contributory cause of death is inherently one not related to the primary cause. 38 C.F.R. § 3.312. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In cases where, as here, it is asserted that service connection should be granted due to Agent Orange exposure, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including a herbicide commonly referred to as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to herbicides such as Agent Orange certain diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service; the diseases include NHL, type 2 diabetes, and ischemic heart disease. 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. §§3.307 (a)(6), 3.309(e). Preliminarily, the Board notes that "cardiomyopathy" is not listed as a disease presumptively associated with herbicide exposure under 38 C.F.R. § 3.309 (e) including as an ischemic heart disease. Hypertension is also not listed as a presumptive disease associated with herbicide exposure. Id. Based on the service treatment records alone, the Board notes service connection for the Veteran's death is not established. NHL, diabetes, hypertension, and coronary artery disease or cardiomyopathy are not affirmatively shown to have been present in service, and service connection is not established. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The service treatment records also lack the documentation of the combination of manifestations sufficient to identify a chronic disability for service connection. 38 C.F.R. § 3.303(b). Nevertheless, as noted above, Tan Son Nhut Air Base was an air base established in Vietnam during the Vietnam War. The Board further finds that the Veteran's duties forming systems and procedures at Tan Son Nhut Air Base, albeit temporary, establish the Veteran was in Vietnam. It is therefore presumed that he was exposed to Agent Orange under 38 U.S.C.A. § 1116. Based on the evidence of record, the Board concludes that the Veteran's fatal NHL cancer and diabetes are presumed to be related to exposure to Agent Orange because the Veteran was in Vietnam during the Vietnam era. Service connection for the cause of the Veteran's death is therefore established. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.