Citation Nr: 21014769 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-35 628 DATE: March 15, 2021 REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1964 to July 1986. Unfortunately, the Veteran died in March 2009. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In a March 2017 decision, the Board denied the claim for service connection for the Veteran’s cause of death. The appellant subsequently appealed this decision to the Court of Appeals for Veterans Claims (Court). In an August 2018 Memorandum Decision, the Court vacated and remanded the March 2017 Board decision. Thereafter, the Board remanded the claim to obtain a medical opinion with respect to the etiology of the Veteran’s cause of death. After this development was undertaken, the RO issued a November 2019 supplemental statement of the case denying the claim. The case then returned to the Board, which denied the claim once more in a January 2020 decision. Once more, the appellant appealed this decision to the Court. During the pendency of that appeal, however, the parties entered into a Joint Motion for Remand (JMR). Pursuant to the JMR, the parties agreed that the Board had erred by failing to adequately address the credibility of the Veteran’s statements regarding temporary duty assignments (TDY) in the Republic of Vietnam or arguments raised by the appellant related to his service in Southeast Asia. Consistent with the terms of the JMR, the Court vacated the January 2020 decision and remanded the matter. It now returns to the Board once more. Cause of Death The appellant is seeking entitlement for service connection for the Veteran’s cause of death. His death certificate lists the immediate cause of his death as glioblastoma, while the record shows that he was diagnosed with lung cancer in June 2002 and glioblastoma in December 2002. The medical evidence of record suggests that the Veteran’s lung cancer could have been caused by or otherwise related to his lung cancer, including its treatment. At the time of his death, the Veteran was service connected for coronary artery disease, a back disability, hemorrhoids, and hypertension. To briefly summarize the appellant’s contentions, she argues that service connection is warranted for the Veteran’s cause of death for the following reasons. First, she alleges that the lung cancer that contributed to his death was due to an in-service pulmonary function defect. Second, she contends that his lung cancer was due to exposure to herbicide agents during TDY travel from the Republic of Vietnam to Thailand, or during his service in Thailand. Third, she argues that the glioblastoma that caused his death was due to herbicide agent exposure due to TDY travel from the Republic of Vietnam to Thailand, or during his service in Thailand. Last, she argues that his lung cancer was due to smoking, which was caused by an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD) or depressive disorder, which were caused by military service. At this juncture, however, the Board cannot address the appellant’s various theories of entitlement on their merits, as additional development is necessary to ensure her claim is afforded every possible consideration. In this regard, service connection for a veteran’s cause of death is warranted where the evidence shows that a disability that was incurred in or aggravated by active duty service either caused or contributed substantially or materially to death. With respect to her claims regarding herbicide agent exposure, VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). For purposes of applying this presumption, service in the Republic of Vietnam includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam during the relevant period. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). Additionally, VA regulations extend the presumption of herbicide exposure to certain veterans who served in Thailand on a facts-found basis if their duties placed them on or near the perimeters of certain Thai military bases where herbicide agents may have been sprayed. 38 C.F.R. § 19.5. For Veterans presumed to have been exposed to herbicide agents during the relevant timeframe, certain diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service, even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. These diseases include respiratory cancers, such as lung cancer. With respect to disabilities not listed in 38 C.F.R. § 3.309(e), claimants are not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). As set forth above, the appellant has argued that the Veteran’s primary and contributory causes of death (i.e., glioblastoma and lung cancer) are related to purported exposure to herbicide agents in either the Republic of Vietnam or Thailand. With respect to the claims of herbicide agent exposure in Vietnam, she has argued that the Veteran, who was an administrative specialist stationed in Thailand during the Vietnam War, was periodically sent on TDY assignments to the Republic of Vietnam as a courier. She also has argued that he was sent on shuttle flights from Cam Ranh Bay, Tan Son Nhut, and Danang en route to Thailand during that time. Service treatment records confirm that the Veteran was treated at Don Muang and Korat Royal Thai Air Force Bases between January and May 1967, while available service personnel records indicate that he was a registry clerk stationed with his unit at Don Muang, Thailand, from January to September 1967. It is unclear from these records whether he was stationed in Southeast Asia prior to or after this particular timeframe, although the Veteran and appellant have asserted that he was stationed overseas in 1966 as well. To that end, the Board notes that there are only six pages of military personnel records in the claims file. Given the Veteran’s 24-year career of military service, it appears that there are outstanding service personnel records that have not yet been associated with his claims file. These personnel records are potentially relevant with respect to the appellant’s claims that he was sent to Vietnam on TDY assignments. Indeed, these records could possibly verify whether the Veteran had qualifying service in Vietnam such that the presumption of herbicide agent exposure would attach. As such, it is incumbent on the RO to obtain any outstanding personnel records and associate them with his claims file in order to assist the appellant in substantiating the claim of exposure to herbicide agents. Additionally, the appellant has alleged that the Veteran’s lung cancer was related to an acquired psychiatric disorder, including PTSD. Prior to his death, the Veteran asserted that he had PTSD related to various in-service stressors, including having a childhood friend killed in Vietnam, having an aircraft he was flying in come under fire while traveling to Vietnam, and being in a motor vehicle accident while on active duty in Thailand. To the extent that there are outstanding service personnel records, these records could also potentially substantiate these claimed in-service stressors. Accordingly, this matter is REMANDED for the following action: 1. In an effort to assist the appellant in obtaining evidence to substantiate the claim of exposure to herbicide agents, including whether the Veteran was sent to the Republic of Vietnam on temporary duty assignments while stationed in Thailand, request and associate with the claims file the Veteran’s complete service personnel records from the Joint Services Records Research Center, the National Personnel Records Center, the Veteran’s service department, and/or any other appropriate agency. Requests must be made to all appropriate agencies for copies of any orders ordering the Veteran to temporary duty in the Republic of Vietnam, as well as his unit’s records from 1966 and 1967, the period when he reported that he was stationed in Southeast Asia. If the Veteran’s personnel records cannot be located, a negative response should be obtained, and the appellant should be asked to complete and return NA Form 13075, Questionnaire About Military Service. She should provide as much detail as she can about his active service, including the dates of any duty in the Republic of Vietnam and any other information that may assist VA in locating relevant personnel records. The completed form should be forwarded to the Joint Services Records Research Center, the National Personnel Records Center, the Veteran’s service department, and/or any other appropriate agency, in an effort to reconstruct the outstanding records. (Continued on the next page)   2. Additionally, undertake development to obtain evidence to verify the PTSD stressors described by the Veteran and the appellant, including the death of his childhood friend in Vietnam, having an aircraft he was flying in come under fire while traveling to Vietnam, and being in a motor vehicle accident while on active duty in Thailand. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.