Citation Nr: 21009719 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-26 718 DATE: February 23, 2021 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran died May 5, 2010. The cause of death was initially listed as cardiopulmonary arrest due to or as a consequence of pancreatic cancer. However, in an amended death certificate in October 2018, the Veteran’s cause of death was listed as pancreatic cancer and diabetes mellitus type II. 2. The probative medical evidence of record did not show that the Veteran had any service-connected disabilities that contributed substantially or materially to the cause of his death. CONCLUSION OF LAW A service-connected disability did not contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from September 1970 to December 1980, to include service during the Vietnam Era in Thailand. The Veteran died May 5, 2010. This case comes to the Board from a rating decision by RO. The Board previously denied the claim in August 2018. However, the appellant appealed the claim to the United States Court of Appeals for Veteran’s Claims (Court) and in an October 2019 Joint Motion for Remand (JMR) returned the case to the Board for re-adjudication. To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred or aggravated in 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 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. The appellant contends that the Veteran's cause of death was herbicide agent exposure in Thailand that led to diabetes mellitus type 2 which in turn led to his pancreatic cancer. During the Veteran's lifetime, service connection was not established for any disability. Regarding the appellant's contention that the Veteran's fatal pancreatic cancer was caused by diabetes mellitus type 2 that was the result of the Veteran's herbicide agent exposure in Thailand, the Board notes that the cause of death on the Veteran’s 2010 death certificate was initially listed as cardiopulmonary arrest due to or as a consequence of pancreatic cancer. However, in an amended death certificate in October 2018, the Veteran’s cause of death was listed as pancreatic cancer and diabetes mellitus type II. Also on the 2018 document, other significant conditions contributing to death but not resulting in the underlying cause was “myocardial infarct” and “probable Agent Orange exposure.” No other significant conditions contributing to death were identified on the 2010 Death Certificate. A September 2018 letter from the Veteran’s treating physician indicated that, while the immediate cause of death was pancreatic cancer, the Veteran’s diagnosed diabetes mellitus type II doubled the Veteran’s risk for such cancer. This was further supported by the amended 2018 death certificate listing diabetes mellitus type II as a contributing cause. The Veteran’s DD 214 shows that he was an air traffic controller radar technician and an aircraft electrical systems specialist. Although the DD 214 shows that the Veteran had 366 days of service in Thailand, there was no probative indication that this was at any location where herbicides were employed. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). There is a presumption of service connection for diabetes mellitus, type II and malignant tumors, if shown to a degree of 10 percent within one year of separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, a Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents. This means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically 2,4D; 2,4,5-T and its contaminant TCCD; cacodylic acid; and picloram. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307 (2019). Generally, if a Veteran was exposed to an herbicide agent during active service, and the Veteran develops diabetes mellitus, type II, service connection may be presumed. 38 C.F.R. § 3.309 (2019). While all Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to an herbicide agent, the Veteran did not serve in Vietnam. Instead, service connection is claimed based on exposure to herbicides while the Veteran was stationed in Thailand. 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. Therefore, when herbicide related claims from veterans with Thailand service are received, VA is instructed to evaluate the service treatment and service personnel records to determine whether a veteran’s service activities involved duty on or near the perimeter of the military base where that Veteran was stationed. 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 during the Vietnam era 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 facts found or direct basis. VA has thus directed that, if evidence shows that a veteran performed duties along the military base perimeter in Thailand, herbicide exposure should be acknowledged on facts found or direct basis. Here, despite the fact that the Veteran was shown to have service in Thailand during the inclusive presumptive period, there is no further evidence reasonably available as to the exact locations and duties of the Veteran during his service there. There is no indication in the claims file that the Veteran would have ever come into contact with herbicides or those used for regular maintenance, to include the fact that, even if the Veteran regularly worked on the flight line as a radar technician, there is no indication that his particular work site was on the base perimeter. Although the appellant submitted documentation in December 2020 showing that the Veteran’s duties as a radar technician would have placed him on the flight line, there is no further evidence to show that was at or near the base perimeter. In this regard, the appellant additionally submitted copies of base maps that appear to show Udorn Thailand Air Force Base, but apart from the lack of evidence verifying that the Veteran served at any exact location, there is also no clear indication on the maps themselves of the location of the base perimeter. The Korat map, likewise, does not reflect the Veteran’s duty stations. Because of the extremely narrow criteria for Veteran’s who served in Thailand, versus that of the Republic of Vietnam, the Board is constrained by the lack of more detailed evidence and cannot find that this shows service at or near the base perimeter. Additionally, a review of the medical evidence of record does not show that the Veteran developed pancreatic cancer, diabetes mellitus, type II, or symptoms thereof during his military service or within one year of discharge. Rather, the medical evidence of record, conveyed a September 2018 letter from the Veteran’s primary care doctor, showed that the Veteran was first diagnosed with diabetes mellitus type II in October 2006 and pancreatic cancer in November 2009, both several decades after serving in Thailand and leaving military service. Further, the appellant has submitted the result of a November 2020 private medical review in which the examiner opined that the Veteran’s diabetes mellitus type II and pancreatic cancer were directly caused by the Veteran’s exposure to Agent Orange. However, the basis for finding exposure was the medical examiner’s judgment regarding that question, which is outside his expertise. Additionally, many of the studies cited by the examiner were for Vietnam service personnel and not personnel who served in Thailand without evidence of regular duties at or near the bases perimeter where herbicides were deployed. As such, this opinion is afforded little weight. There has further been no medical opinion proffered indicating that diabetes mellitus type II or pancreatic cancer was in any way the result of the Veteran’s military service. Lastly, with respect to the entry on the Veteran’s death certificate including “Probable Agent Orange Exposure” among other significant condition contributing to death, since that is a term of art associated with Vietnam service, (or places other than Thailand) its inclusion on this document does not render it as likely as not the Veteran’s death was the result of his military service. Moreover, it was indicated this exposure was “not resulting in the underlying cause given in Part I.” Thus, this exposure was apparently considered unrelated to pancreatic cancer and Type II Diabetes Mellitus, which were the causes of death identified in Part I. In light of the forgoing, the evidence fails to support the conclusion that service connection is warranted for diabetes mellitus type II or pancreatic cancer. Therefore, because the Veteran’s diabetes mellitus type II and pancreatic cancer, shown as a contributing cause and immediate cause of his death respectively, are not service-connected, and the Veteran had no other service-connected disabilities, service connection for the cause of death is, thus, unfounded. Accordingly, the claim must be denied. The Board has considered the doctrine of reasonable doubt. However, as the most probative evidence of record is against the Veteran's claim, the Board finds that this doctrine is not for application. 38 U.S.C. § 5107 (b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.