Citation Nr: 21013493 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-40 135 DATE: March 9, 2021 ORDER Service connection for the Veteran’s cause of death is granted. FINDINGS OF FACT 1. The Veteran died in November 2015; the cause of death was respiratory insufficiency due to or as a consequence of lung cancer. 2. The evidence is at least in equipoise as to whether the Veteran set foot in Vietnam during the Vietnam era and is therefore presumed to have been exposed to herbicide agents. 3. The Veteran’s lung cancer is presumed related to his exposure to herbicide agents while serving in Vietnam. 4. The Veteran’s lung cancer substantially or materially contributed to the cause of his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran’s cause of death are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e), 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1967 to November 1987. He died in November 2015. The appellant is his surviving spouse. In August 2019, the appellant appeared at a videoconference hearing before the undersigned Veterans Law Judge, where she provided testimony regarding her appeal. A transcript is in the record. The Board denied the appellant’s appeal in December 2019. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court vacated the December 2019 decision and remanded the appeal for action consistent with the Joint Motion for Remand (JMR). It has now returned to the Board for appellate review. Additionally, this case has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). Service connection for the Veteran’s cause of death is granted. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a)(1). A Veteran’s death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection for cause of death is warranted, the laws and regulations generally applicable to compensation for service-connected disability apply. 38 U.S.C. § 1310. To that end, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of  (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Under 38 C.F.R. § 3.309(e), certain enumerated diseases, such as respiratory cancers, may be presumed to be due to exposure to herbicide agents in service, even though there is no record of such disease during service. A Veteran who served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to herbicide agents in service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). VA has determined that presumption of service connection based on exposure to herbicide agents used in Vietnam is not warranted for any conditions other than those for which VA has found a positive association between the condition and such exposure. In this regard, the Board notes that Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). * * * The appellant seeks entitlement to service connection for the Veteran’s cause of death. Specifically, the appellant asserts that the Veteran’s cause of death, noted on his death certificate as respiratory insufficiency due to or as a consequence of lung cancer, was related to his exposure to herbicide agents while serving in Vietnam. See 10/18/2016 NOD. The Veteran’s death certificate reflects that his cause of death was respiratory insufficiency due to or as a consequence of lung cancer. See 06/16/2016 Death Certificate. As discussed above, respiratory cancers are among the disorders that are presumed to have been caused by exposure to herbicide agents. Therefore, the Board will consider whether the evidence establishes that the Veteran was exposed to herbicide agents during service. Turning to the evidence, military personnel records reveal that the Veteran served in Thailand at Camp Friendship in Korat and at Nakhon Phanom Royal Thai Airforce Base. 07/18/2016 Military Personnel Record. The Board observes, however, that the Veteran’s military personnel records and service treatment records (STRs) are silent for any indication that the Veteran set foot in Vietnam during service. Nonetheless, the Board must consider the appellant’s testimony that while serving in Thailand, the Veteran travelled back and forth between Thailand and Vietnam to service equipment. See 08/12/2019 Hearing Transcript at 7. In this regard, the Veteran’s DD Form 214 confirms that his military occupational specialty (MOS) was Light Wheel Vehicle Mechanic and Track Vehicle Repairer, and that he served in Thailand from June 1968 to July 1969, and from March 1970 to March 1971. See 05/24/2017 Military Personnel Record; see also 08/07/1989 DD Form 214. Moreover, the record contains a 1979 letter sent by the Veteran to his parents indicating that he had traveled to Vietnam during service. See 09/09/2019 Congressionals. In pertinent part, the Veteran wrote that he “went to Thailand and Vietnam April of [19]68 to April [19]69.” See id. The Board notes that the record also contains a copy of the Veteran’s passport, dated May 27, 1968, indicating that the Veteran was “abroad on an official assignment for the United States government.” See 06/16/2016 Identification Materials. The Board finds that the lay evidence in favor of the Veteran having served in Vietnam to be both competent and credible, and further finds that the evidence is at least in equipoise as to whether the Veteran set foot on the ground in Vietnam. In this regard, the Board finds that the Veteran’s 1979 letter is credible to show that he entered Vietnam from Thailand on various occasions in connection with his MOS duties, an assertion that is corroborated by the appellant’s later testimony. While the Veteran’s service personnel records do not verify that the Veteran set foot in Vietnam, the record also does not confirm the contrary. Therefore, and resolving any reasonable doubt in the appellant’s favor on this material issue, the Board finds that the Veteran’s service included actual duty in the Republic of Vietnam. Thus, the Veteran is presumed to have been exposed to herbicide agents in service and his lung cancer may be attributed to his herbicide agent exposure in Vietnam. Consequently, as the Veteran's death certificate shows that his primary cause of death was respiratory insufficiency due to or as a consequence of lung cancer, the Board finds that the evidence reasonably supports the establishment of service connection for the cause of the Veteran's death under the provisions of 38 U.S.C. § 1310, as it appears that the Veteran's lung cancer contributed substantially or materially to his death. In light of the foregoing, the Board finds that the criteria to establish service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appeal is granted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.