Citation Nr: 21076784 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-03 605 DATE: December 27, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran died in May 2011. The death certificate reflects the immediate cause of death as cardiopulmonary arrest. 2. At the time of his death the Veteran was not service-connected for any disability. 3.The fatal disease processes were not manifest during service or within one year of separation and were not attributable to service. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1948 to July 1968. This case was previously before the Board in September 2017, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for the Veteran's cause of death The Veteran died in May 2011. The death certificate lists the cause of death as cardiopulmonary arrest. Left hemisphere stroke and left subclavicular stent/angioplasty were listed as other factors. A June 2011 letter from the Veteran's private physician states that the Veteran's coronary artery disease (CAD) contributed to his death. Under 38 U.S.C. § 1310, when a veteran dies from a service related disability, VA will pay dependency and indemnity compensation (DIC) to the veteran's surviving spouse. To establish that a veteran died from a service-related disability, i.e., service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service was either a principal or contributory cause of death. 38 C.F.R. § 3.312. To establish service connection a Veteran must generally 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 (d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). A disease associated with exposure to herbicide agents will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during service. 38 C.F.R. § 3.309 (e). Such disease shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to the herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(ii). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307 (a), 3.309(a). If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a), see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The appellant argues that the Veteran's cardiopulmonary arrest noted on his death certificate was due to his exposure to herbicides during his active service. The Veteran does not have confirmed service in Vietnam. However, he did serve at Takhli Royal Thai Air Force Base (RTAFB). Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases. Veterans who served in the U.S. Air Force in Thailand during the Vietnam Era at one of the following Royal Thai Air Force Bases (RTAFBs) U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang; and as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, may be presumed to have been exposed to herbicide agents. The Veteran served as a refrigeration and air conditioning mechanic while at Takhli RTAFB. This is not an occupation whose duties would have placed the Veteran near the perimeter of the base. Multiple attempts to determine whether the Veteran's duties may have placed him near the air base perimeter or otherwise exposed him to herbicide agents have resulted in negative replies. Therefore, exposure to herbicide agents may not be presumed and is not shown by the evidence of record. Service treatment records showed reports of chest pain in January and March 1967. In May 2021 an opinion was obtained from a VA clinician regarding the potential link between the Veteran's reported chest pains during service and his documented CAD, which contributed to his death. The clinician opined that the Veteran's CAD was less likely than not related to his reported chest pains during service. To support this opinion, the clinician explained that the Veteran's chest pains during service were related to an acute infection with consistent physical and radiographic findings. Further, the pains were responsive to antibiotic therapy, and there was documented resolution of the condition. The Board finds that a preponderance of the evidence weighs against a finding that the Veteran's CAD was incurred in or may be presumed to have been incurred during active service. The evidence is not in equipoise. The Veteran's service treatment records do not show complaints or treatment for CAD. The May 2021 VA examiner determined that the Veteran's fatal disease processes were less likely than not related to his documented chest pains during service, as those were due to an acute condition with documented resolution. Although CAD may be presumed to be incurred during service when there is exposure to herbicide agents, such exposure is not shown here and may not be presumed. Multiple attempts to verify allegations that the Veteran was exposed to herbicide agents have failed. Finally, the Veteran's CAD was not manifest during service or within one year and may not be presumed to be service connected as a chronic illness. Lastly, there is no evidence that a service-connected disease caused or materially influenced the cause of death, as the Veteran was not service-connected for any disease at the time of death. The fatal disease processes were not noted during service or within one year of separation and there is no competent evidence linking the processes to service. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. The evidence is not in equipoise. Service connection for the Veteran's cause of death is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Creegan, Amanda 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.