Citation Nr: 21008058 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-09 484 DATE: February 11, 2021 ORDER New and material evidence having been submitted, the application to reopen the claim of service connection for the cause of the Veteran's death is granted. Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran had active duty between January 1962 and January 1966, to include service in Thailand in 1965 with a military occupational specialty (MOS) of automatic flight control system specialist. 2. In an unappealed May 2015 rating decision, the RO denied service connection for the cause of the Veteran’s death; the evidence submitted since the May 2015 rating decision relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran died in September 2014 at the age of 71. The death certificate identified the immediate cause of death as multiple myeloma; no other underlying causes or significant contributing conditions were identified. 4. At the time of his death, service connection was in effect for tinnitus at 10 percent. Additionally, a noncompensable rating was assigned for service-connected hearing loss. 5. The cause of the Veteran’s death was not etiologically related to service, to include in-service exposure to herbicide agent. CONCLUSIONS OF LAW 1. The May 2015 rating decision, which denied service connection for the cause of the Veteran’s death, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2020). 2. The evidence received since the May 2015 rating decision is new and material, and the claim of entitlement to service connection for the cause of the Veteran’s death is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. The cause of the Veteran’s death was not related to service, not related to a service-connected disability, and cannot be presumed to be due to herbicide exposure. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1310, 5103(a), 5130A (2012); 38 C.F.R. §§ 3.102, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, in December 2018 the appellant requested that the appeal be processed under the Rapid Appeals Modernization Project (“RAMP”). In a March 2019 Form 9, the Board activated the claim under the “legacy appeal” process and proceeded to afford her, as the Veteran’s surviving spouse, a December 2020 hearing in connection with the claim before the undersigned Veterans Law Judge, of which a copy of the transcript has been associated with the claims file. At this juncture, the appeal is not eligible to be considered under RAMP; as such, it will be adjudicated under the legacy process. New and Material Evidence Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The appellant was initially denied service connection for the cause of the Veteran’s death in May 2015 on the basis that the evidence failed to find that the Veteran was diagnosed with multiple myeloma either in-service or within a year of separation from service, and did not establish that his service-connected disabilities (hearing loss and tinnitus) caused, aggravated, or hastened his death. The May 2015 decision further found that the evidence did not reveal service in the Republic of Vietnam sufficient to establish presumptive herbicide exposure or otherwise find that he experienced direct exposure to herbicide agents while on active duty. The evidence at the time consisted of the Veteran’s death certificate reporting the cause of his death as multiple myeloma and offering that tobacco did not contribute to the cause of his death, service treatment records (STRs), a July 2012 clinical letter detailing the results of an Agent Orange Registry examination, military personnel records (MPRs) to include February and May 1965 special orders detailing his temporary assignment to and service with the 354th Tactical Fighter Squadron, a letter of thanks from the Squadron Commander for his temporary service, and a map of Korat Royal Thai Air Force Base (RTAFB). The appellant requested reconsideration of the May 2015 denial but did not do so on the appropriate form and did not otherwise appeal the decision; accordingly, the May 2015 rating decision became final. The evidence received since the May 2015 rating decision includes a July 2012 clinical letter, February and May 1965 special orders, a letter of thanks, a map of Korat RTAFB, VA medical treatment records, to include a July 2012 medical treatment record noting service in Thailand and possible exposure to Agent Orange, medical and lay articles describing the relationship between multiple myeloma and Agent Orange and reported instances of exposure to herbicide agents in Thailand, September and December 2017 lay statements from the appellant, an excerpt from a unit history of the 355th Tactical Fighter Wing, a March 2019 formal finding concerning in-service herbicide exposure, and December 2020 testimony before the undersigned Veterans Law Judge. The July 2012 clinical letter, February and May 1965 special orders, letter of thanks, and map of Korat RTAFB do not constitute new evidence; rather, they are duplicative of evidence considered in the May 2015 rating decision. They therefore do not support reopening the claim. Moreover, while the medical and lay articles provided describe the relationship between multiple myeloma and exposure to Agent Orange, as well as reported instances of herbicide use in Thailand, the articles only provide a survey of the medical research and military records without specifically addressing the Veteran’s case. As such, the medical and lay articles, while new, are not material as they provide no new evidence as to the relationship between the cause of the Veteran’s death and his service in Thailand and do not support reopening the claim. Next, the appellant submitted lay statements in September and December 2017 addressing procedural concerns with the case and summarizing the evidence that she submitted. Lay witnesses are competent to describe their observations because this requires only personal knowledge as it comes to them through their senses; however, her September and December 2017 lay statements provide no new evidence as to the relationship between the Veteran’s multiple myeloma and service, to include claimed herbicide exposure in Thailand. Therefore, the statements, while new and weighed in her favor, fail to raise a reasonable possibility of substantiating the claim and do not support reopening. However, the post-service treatment notes and the appellant’s December 2020 testimony describing service in Thailand are new and material within the meaning of applicable law and regulations because they are probative of the issue. In this regard, the appellant testified that the Veteran was assigned to a temporary duty station (TDY) in Thailand from March through May 1965 and was otherwise based out of McConnell Air Force Base. This evidence is new as it was not of record prior to the May 2015 rating decision. Moreover, the evidence is material as it relates to the unestablished element of service in Thailand for the purpose of establishing presumptive service connection based on herbicide exposure. Accordingly, the newly-added evidence relates to an unestablished fact necessary to substantiate the claim. As such, the application is granted, the claim is reopened, and the Board will address it on the merits. Service Connection for Cause of Death To establish service connection for the cause of a veteran’s death under the relevant laws and regulations, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate cause 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, a causal connection must be shown. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. As noted above, the Veteran died in September 2014 at the age of 71. His immediate cause of death was listed as multiple myeloma. No other underlying causes or significant conditions were found to contribute to his death. At the time of his death, he was service connected for tinnitus at 10 percent and hearing loss at 0 percent. The appellant has not argued that his death stemmed from his service-connected hearing loss and tinnitus. Moreover, the medical evidence does not support a finding that hearing loss or tinnitus contributed to his death; therefore, the medical evidence does not support a finding that a service connected disability caused the Veteran’s death. As to whether the cause of the Veteran’s death was related to service, a review of the STRs shows that laboratory work was negative for blood or cellular based disorders in multiple medical examinations between January 1962 and November 1965. Further, he reported in multiple Reports of Medical History over the same time period that he did not then-presently or previously have a tumor, growth, cyst, or cancer. Rather, the medical evidence first documented plasma cell leukemias such as multiple myeloma in January 2012, more than 45 years after his separation from service. Therefore, the medical evidence does not support a finding that the disorder that caused his death was directly related to service. The appellant’s primary contention is that the Veteran was exposed to Agent Orange while serving in Thailand and multiple myeloma was the result of this exposure. To this end, the Veteran explained in an October 2013 statement prior to his death, and the appellant reinforced in December 2020 testimony, that he was assigned to a TDY with the 354th Tactical Fighter Squadron while in service and served at Korat RTAFB in Thailand during the placement. Generally, lay witnesses are competent to report that which they perceive through the use of their senses, including events capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the statements and testimony of the Veteran and appellant are consistent and well-documented throughout the record. Additionally, the statements are corroborated by the additional evidence of record. To that end, the record includes February and May 1965 special orders detailing a TDY in which the Veteran was assigned from his original unit to support the 354th Tactical Fighter Squadron. Accordingly, service in Thailand has been established. Under the relevant laws and regulations, service connection may be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 for veterans who served in Thailand during the Vietnam War era where: (1) the veteran was in the Air Force, (2) the veteran served at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon, Phanom, Udorn, Takhli, Korat, or Don Muang, and (3) the veteran served as a security policeman, security patrol dog handler, or member of a security police squadron, or otherwise served near a base perimeter, as shown by the veteran’s MOS, daily work duties, performance evaluations, or other credible evidence. As noted above, the evidence supports a finding that the Veteran was a member of the Air Force who served in Thailand. Moreover, multiple myeloma is presumptively associated with in-service herbicide exposure under 38 U.S.C. § 3.309. Accordingly, the threshold question is whether the evidence established that the Veteran had sufficient service near the perimeter of Korat RTAFB to warrant service connection based on presumptive herbicide exposure. The Veteran’s October 2013 statement and appellant’s December 2020 testimony explained that the Veteran’s responsibilities while serving at Korat RTAFB included maintaining the flight control and autopilot systems on aircraft. They further stated that his duties required him to work on the flight line and maintenance shop and live in structures (“hooches”) located as close as 90 feet away from the perimeter of the base. They reported that the wind blew through the structures and offered that herbicides used on base thus filtered into his living quarters. They further noted that he was additionally assigned to help arm bombs on the flight line and that, in order to travel to Korat or any other city in Thailand, he had to cross the perimeter of the base. The Veteran’s personnel record, as well as the statements and testimony submitted by the Veteran and appellant reflects service in Thailand at Korat RTAFB during the Vietnam War era. Further, the Board has considered the claims of in-service exposure to herbicide agents. The evidence does not reflect that he served as a security policeman, security dog handler, or member of a security police squadron. Rather, a June 1965 performance review detailed his responsibilities as an automatic flight control system specialist, to include working on the flight line and shop, volunteering to work on complex systems malfunctions, and performing periodic inspections and technical order changes. The performance review notes that the Veteran was successful in performing complex system malfunctions on both aircraft and in-shop maintenance in a minimum amount of time. The June 1965 performance report supports the lay assertions made as to the Veteran’s in-service duties, but does not reflect that his exposure to the base perimeter was more than occasional. Next, the Veteran and appellant submitted an excerpt from a 1973 report for Project Contemporary Historical Examination of Current Operations (CHECO) concerning the use of herbicides throughout Southwest Asia, to include in Thailand, additional information as to the history of the Veteran’s unit, and a compilation of information concerning herbicide usage at Korat RTAFB. The CHECO report noted that herbicides were used in Thailand between August and September 1963. However, the Veteran reported serving in Thailand in 1965 and the excerpt submitted did not detail any additional use of herbicides in Thailand after September 1963. As such, the CHECO report is assigned lesser probative value as to the Veteran’s exposure to the perimeter of the base. The additional unit history reinforces that the Veteran’s unit was stationed in Thailand. As to the compiled information, the documentation acknowledges that no records exist documenting the spraying of herbicides at Korat RTAFB but asserts that aircraft used to spray herbicides operated at the base, claims that photographic evidence exists documenting the storage of Agent Orange at the base, and include maps noting the existence of hooches near the perimeter of the base. The evidence submitted reinforces the Veteran’s service in Thailand and affirms the presence of hooches near the perimeter of the base; however, the unit history and compiled information do not reflect his specific level of exposure to the perimeter of the base. Further, the claim of exposure due to herbicides through open windows is not a substantiated method of exposure. In addition, passing through the perimeter to get on and off the base is not sufficient to establish exposure to herbicide as presumably every person serving on the base had to enter and exit at least once. To find ingress and egress sufficient to establish exposure would render the qualifiers of the regulations (security patrol and security dog handlers) meaningless. The evidence establishes that the Veteran had service in Thailand at the Korat RTAFB that include occasional duties on or near the perimeter of the base; however, occasional or incidental duties on and around the perimeter are not sufficient to establish herbicide exposure consistent with daily work duties on a facts-found basis such as those that would be performed by a security policeman, security control dog handler, or member of the security police squadron who presumably would be on or near the perimeter on a regular basis as part of their duties. For those reasons, the medical evidence does not establish presumptive service connection based on in-service exposure to herbicides in Thailand. The Board has considered multiple medical articles submitted by the Veteran and the appellant concerning the relationship between multiple myeloma and herbicide exposure. Treatise evidence may suffice to establish nexuses in instances where, “standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated medical opinion.” Sacks v. West, 11 Vet. App. 314, 317 (1998). Significantly, however, treatise materials usually are not specific enough to show nexus, id. at 317, and that medical opinions directed at specific patients are generally more probative than medical treatises. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993). In this situation, as detailed above, while the record establishes that the Veteran had occasional contact with the base perimeter while serving in Thailand, it does not support a sufficient degree of herbicide exposure to satisfy the presumptive service connection regulations. Further, while medical treatise evidence can provide important support when combined with an opinion of a medical professional, such a medical nexus has not been provided in this case. Mattern v. West, 12 Vet. App. 222 (1999). Rather, the articles only provided a survey of the medical research without specifics as to the Veteran’s situation. As such, this evidence is not dispositive and is assigned lesser probative value. The Board has also considered the Veteran’s lay statements and testimony offered by the appellant. Lay witnesses are competent to report their observations because this requires only personal knowledge as it comes to them through their senses, they are not competent to provide a complex medical opinion regarding issues such as the cause of the Veteran’s death. Such competent evidence concerning the cause of the Veteran’s death has been provided by the medical personnel who have rendered pertinent opinions during the current appeal. The medical findings (as provided in the clinical records) directly address the criteria under which the issue is evaluated. Accordingly, the Board attaches greater probative weight to the clinical findings than to the lay statements and testimony that have been submitted. In sum, the weight of the evidence does not establish that the cause of the Veteran’s death was the product of in-service exposure to herbicide agents in Thailand or that it was otherwise related to service. For these reasons, the appeal is denied and there is no doubt to be otherwise resolved. Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to   address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.