Citation Nr: 21026278 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-42 945 DATE: April 30, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death, to include as a result of in-service exposure to an herbicide agent, is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran died in November 2013 and the immediate cause of death listed on his death certificate is septic shock due to a urinary tract infection related to prostate cancer. 2. The record evidence shows that, at the time of the Veteran’s death, service connection only was in effect for bilateral hearing loss. 3. The record evidence shows that the Veteran did not serve overseas, including in Thailand or Guam, and otherwise was not exposed to tactical herbicides, such as Agent Orange, while on active service. 4. The preponderance of the evidence is against finding that the Veteran’s fatal septic shock or prostate cancer is attributable to active or any incident of service, to include in-service exposure to an herbicide agent. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from December 1942 to March 1957, and from May 1957 to July 1965. He died in November 2013. The appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Appellant was scheduled to appear at a Board videoconference hearing. In September 2019 correspondence, the Appellant’s attorney requested an opportunity to present an Appellant Brief in lieu of holding the hearing. The Appellant Brief has been submitted. As such, the Appellant’s request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704 (2019). The Board remanded the issue in December 2019. Service Connection for the cause of the veteran’s death The appellant has alleged that the Veteran was exposed to herbicide agents during his alleged tours of duty in Guam and Thailand and his cause of death (prostate cancer) is a direct result of this claimed exposure. Thus, she contends that she is entitled to service connection for the cause of the veteran’s death. The Veteran was diagnosed with prostate cancer upon a March 2011 CT scan. Therefore, the first element of service connection (existence of current disability) has been met. Therefore, the claim turns on whether he was exposed to tactical herbicides, such as Agent Orange, during service. With regard to the allegation of in-service exposure herbicide to an herbicide agent, the Board notes that the Veteran’s service personnel records, including his DD Form 214, do not indicate that he had foreign service for the time period in question. These records also do not reflect service in Guam or Thailand. They show that the Veteran was assigned to the 22nd Air Refueling Squadron in the March AFB in California. The Board notes that in a September 2017 Buddy statement it was alleged that the Veteran reportedly had regular rotations to South East Asia to include U-Tapao and other bases in Thailand, Okinawa, and Guam, while a member of the 22nd Air Refueling Squadron. Even assuming arguendo that the Veteran was in a squadron which traveled to U-Tapao, Thailand, there is no indication that he served along the security patrol lines or that his duties would have placed him along the security lines as is required for conceding in-service herbicide exposure in Thailand. Pursuant to the December 2019 remand, the Joint Services Records Research Center (JSRRC) provided a memorandum noting that the 5th Bombardment Wing for 916 Air Refueling Squadron was not available for research and recommended that VA contact the Air Force Historical Research Agency. Moreover, the JSRRC referred to a U.S. Air Force Historical Research Agency memorandum for VA dated August 11, 2015, concluding there was “no documentation or evidence found in the holdings of the Historical Research Agency showing that tactical herbicides, such as Agent Orange, were ever used on any USAF installation in Thailand for vegetation control during the Vietnam era.” In response to request from VA, an Air Force Historical Research Agency (AFHRA) Archivist noted in August 2020 email correspondence that it appeared the appellant was referring to Operation Foreign Legion, then renamed Young Tiger, in her assertions that the Veteran had in-service exposure to an herbicide agent in Thailand. This archivist noted that the AFHRA was not able to confirm exactly which members of the 916th Air Refueling Squadron participated in Operation Foreign Legion/Young Tiger. He was able to confirm that, at times, the unit participated in Operation Foreign Legion/Young Tiger. He also noted that, due to the dates that the unit participated in such operations, he doubted the Veteran would have been flying much during that period if at all. Again, even assuming arguendo that the Veteran participated in such Operation Foreign Legion/Young Tiger, the evidence does not reflect that he served along the base perimeter or otherwise was exposed to an herbicide agent. The Appellant finally has not identified or submitted any evidence demonstrating entitlement to service connection for the cause of the veteran’s death based on his in-service exposure to an herbicide agent. Accordingly, the Board finds that service connection the cause of the veteran’s death on a presumptive basis due to in-service exposure to an herbicide agent is not warranted. See generally 38 C.F.R. §§ 3.307, 3.309. Although the Veteran’s in-service exposure to an herbicide agent is not conceded, the Appellant nevertheless can establish entitlement to service connection the cause of the veteran’s death on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). Having reviewed the record evidence, the Board finds that service connection for the cause of the veteran’s death is not warranted on a direct service connection basis. See 38 C.F.R. §§ 3.303, 3.304. Service treatment records are silent for complaints of, treatment for, or diagnosis of prostate cancer. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). There is no indication of prostate cancer until many years following the Veteran's separation from active service, let alone within one year of service discharge. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Indeed, the appellant herself does not contend that the Veteran’s prostate cancer was due to a specific in-service event or injury. The Board recognizes the appellant’s contentions that the Veteran’s prostate cancer, which led to his death by septic shock, was related to in-service exposure to an herbicide agent during his active service. As noted, in-service exposure to an herbicide agent has not been established. The appellant has not contended that prostate cancer otherwise is related to service. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. Davidson v. Shinseki¸581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As to a nexus opinion relating any disability to exposure to herbicides, the Board finds that the etiology of the Veteran's prostate cancer is a complex medical question. The appellant has not been shown to possess medical knowledge or expertise and therefore is not competent to provide opinions as to the etiology of the Veteran’s disability. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In summary, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for the cause of the Veteran’s death is not warranted. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.