Citation Nr: 21010988 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-22 754 DATE: February 26, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACTS 1. The record reflects that the Veteran died in January 2012. 2. The Veteran’s death certificate lists the immediate cause of death as metastatic laryngeal cancer and septicemia. 3. At the time of his death, the Veteran did not have any service-connected disabilities. 4. Resolving all doubt in the Appellant’s favor, the Veteran’s active duty included service within the Republic of Vietnam. 5. The metastatic laryngeal cancer that caused the Veteran’s death was related to in-service exposure to an herbicide agent. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1112, 1310, 1311; 38 C.F.R. §§ 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1965 to October 1968. He received the Vietnam Service Medal for his service in support of the Vietnam War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The record reflects that the Veteran died in January 2012. The Appellant, the Veteran’s surviving spouse, filed a claim for service connection for cause of death received by the VA in June 2015. In March 2020, the Board denied the Appellant’s appeal, determining that the Veteran’s service did not allow for the presumptive service connection for herbicide agents. The Appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in September 2020, an attorney representing the Appellant and a representative of VA’s Office of General Counsel filed a Joint Motion for Remand (JMR). In a September 2020 Order, the Court vacated the Boards March 2020 decision and remanded the matter for readjudication in light of the Joint Motion. The Appellant’s appeal has returned to the Board. Entitlement to service connection for the Veteran's cause of death In this case, the Appellant seeks Dependency and Indemnity Compensation (DIC) benefits. Such benefits are payable to the surviving spouse, child, or parents of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish service connection for the cause of the veteran’s death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided, or lent assistance to producing death, for example when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, “unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Prior to the decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), the presumption of exposure to herbicide agents provided under 38 U.S.C. § 1116 was extended only to those Vietnam Veterans who served on the landmass or inland waterways of the Republic of Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97. In Procopio, the U.S. Court of Appeals for the Federal Circuit reversed its prior precedent and held that “service in the Republic of Vietnam” under § 1116 includes service in the territorial sea. The BWN Act codified the Procopio holding, and further authorized VA to award disability benefits retroactively to Blue Water Navy Veterans and survivors who had previously submitted a claim for benefits that was denied based on the more restrictive definition of ”service in the Republic of Vietnam.” VAOPGCPREC 3-2019. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases include respiratory cancers, including cancer of the larynx. 38 C.F.R. § 3.309 (e). Analysis The Veteran’s death certificate states that his immediate cause of death was metastatic laryngeal cancer and septicemia. At the time of his death, the Veteran did not have any service-connected disabilities. However, the Appellant argues that the disabilities that caused the Veteran’s death were the result of exposure to herbicide agents, which she asserts occurred while the Veteran served in the United States Air Force. The crux of the issue is whether the Veteran was presumptively exposed to herbicide agents through service in the Republic of Vietnam. The Veteran’s service records do not include any documented service in Vietnam; rather the Veteran served at Ching Chuan Kang Air Base in Taiwan. Although Ching Chaun Kang AB is not included as a location for presumptive exposure to herbicide agents, the Appellant has provided evidence that, when resolving all doubt in the Veteran’s favor, allows for the conclusion that the Veteran’s service did include some aspect of serving on temporary duty in the Republic of Vietnam. The Appellant supplied a letter written by the Veteran in which he discussed getting home from the Republic of Vietnam. In November 2020 a buddy statement from K.M. was provided. K.M. knew the Veteran through medical treatment the Veteran received for his cancer. K.M. stated that he and the Veteran would talk about their military service, including the Veteran’s duties repairing airplanes, including an experience where the Veteran was sent to Tuy Hoa Air Base in the Republic of Vietnam to repair aircraft. This assertion is not contradicted by any evidence of record that directly disputes that the Veteran could have temporarily performed such service in Vietnam. The Veteran’s DD-214 also reflects that he earned a Vietnam Service Medal, which the Board has previously stated is awarded for service “in support of” the Vietnam war. The Veteran’s records include the certificate awarding the Veteran the Vietnam Service Medal. It was awarded July 1968 while the Veteran was stationed at Ching Chuan Kang AB for service from March 1968 to April 1968 as a maintenance specialist and is signed by the Commander or an Administrative Officer. Although the award of the Vietnam Service Medal does not establish in-country service on its own, Appellant’s congressman provided both a statement and the November 1969 Air Force Manual to support the Appellant’s beliefs that the Veteran served in the Republic of Vietnam. Congressman F. stated that service members stationed in countries to support U.S. Operations in the Republic of Vietnam at times were diverted to an air base in the Republic of Vietnam and then maintenance personnel for that particular aircraft would be dispatched into the Republic of Vietnam to fix damage so the aircraft could return to its base of origin. Congressman F. contends that this is why the Veteran was awarded the Vietnam Service Medal. Most significantly, as was noted previously, the above-noted circumstantial evidence supporting the conclusion that the Veteran was present at some point in Vietnam is also not contradicted by evidence showing that he could not have participated in such a repair mission in Vietnam. The Court has spoken repeatedly that the lack of definitive evidence confirming service in Vietnam cannot alone provide a basis to impugn the Veteran’s statements of in-country service. In summary, the Board finds that given the place, type and circumstance of the Veteran’s service, the letter, K.M.’s statement, the Veteran’s congressman’s contentions that support K.M.’s statement, and the fact that there is no evidence showing that the Veteran could not have participated in a mission to a base in Vietnam to repair an aircraft as recalled by K.M., the Board finds that the evidence is at least in equipoise on the question of whether the Veteran has Vietnam service to qualify for presumptive service connection. On balance and considering the totality of the evidence including the Veteran’s presumed exposure to herbicide agents during service, the Board is persuaded that the metastatic laryngeal cancer that caused the Veteran’s death was related to in-service exposure to an herbicide agent and that the criteria for an award of service connection for the cause of the Veteran’s death have been met. Service connection for the cause of the Veteran’s death is therefore warranted. 38 C.F.R. §§ 3.102. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.