Citation Nr: 21027819 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-38 863 DATE: May 6, 2021 ORDER Entitlement to service connection for cause of death of the Veteran is denied. FINDINGS OF FACT 1. The Veteran died on June [REDACTED], 2016, and the cause of death listed on the death certificate was lung cancer. 2. The cause of the Veteran's death was not related to service or a service-connected disability; at the time of the Veteran's death, service connection was not established for any disability. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1962 to March 1970. The Appellant is the surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2018 rating decision of the Department of Veterans Affairs (VA). The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). Determinations as to whether service connection may be granted for a disability that caused or contributed to a Veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Appellant contends that the lung cancer which led to the Veteran's death was the result of herbicide exposure during service. Specifically, the Appellant asserts that the Veteran was exposed to herbicides and/or Agent Orange while stationed at Takhli Royal Thai Air Force Bases (RTAFB) in Thailand and/or during recovery missions to retrieve parts of downed aircrafts in Vietnam. She states that the Veteran told her that he was involved in 3 recovery missions during his service. Per his military personnel record, the Veteran's military occupational specialty (MOS) was a jet engine mechanic. A Veteran who served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to certain herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Certain chronic disabilities are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). This presumption extends to troops stationed in Thailand during the Vietnam Era, under certain circumstances. In Thailand, the presumption applies to troops that were stationed at the RTAFB of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang during the Vietnam Era. VA has determined that there was use of herbicides on the fenced-in perimeters of military bases in Thailand for the purpose of eliminating vegetation and ground cover for base security purposes. This allows for presumptive service connection of the diseases associated with herbicide exposure. VA concedes herbicide agent exposure for United States Air Force Veterans who served in Thailand during the Vietnam era at certain RTFABs, to include Takhli, if they served as security policemen, security patrol dog handlers, members of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. The Board notes that the Veteran did not have any service-connected disabilities at the time of his death in 2016. Because the Veteran's death did not occur in service and he was not service connected for the condition that caused his death, it is necessary to determine whether direct or presumptive service connection should have been established. After reviewing the evidence of record, the Board finds that entitlement to service connection for the cause of the Veteran's death is not warranted. The evidence of record fails to establish that the Veteran was exposed to herbicides and/or Agent Orange during his active duty service. While the Appellant states that she believes that the Veteran served in Vietnam, a review of the Veteran's claims file, to include his personnel records and service treatment records, does not reveal such service. Service at Takhli RTAFB during the Vietnam era between August 26, 1965 and October 11, 1965 is verified by the Veteran's personnel records. However, that Appellant has not asserted and the evidence of record does not show that the Veteran's service regularly placed him in close proximity to the perimeter on the base. A Defense Personnel Records Information Retrieval System (DPRIS) memorandum associated with the claims file in February 2018 reflects that the history of the 6441st Tactical Fighter Wing (TFW), higher headquarters of the 441st Field Maintenance Squadron (FMS), stationed at Yokota Air Base (AB), Japan, during April 1965 through November 1965 had been researched. Unfortunately, the history was negative and did not report that the 441st FMS went on temporary duty (TDY) to the Republic of Vietnam (RVN). It was noted that information concerning the Veteran's assignment to RVN could be located on his Air Force (AF) Form 7 located in his Official Military Personnel File (OMPF). Additionally, for Veterans who served anywhere in Vietnam between January 9, 1962 and May 7, 1975, they were presumed to have been exposed to herbicides, as specified in the Agent Orange Act of 1991. These Veterans did not need to show that they were exposed to Agent Orange or other herbicides in order to get disability compensation for diseases related to Agent Orange exposure. Of note, a review of the Veteran's AF Form 7 does not show service in Vietnam. A DPRIS memorandum associated with the file in March 2018 reflects that research was also conducted for the 36th Tactical Fighter Squadron (TFS), stationed at Yokota AB, Japan. The history documented that men and equipment from the 6441st TFW, maintenance squadrons were deployed to Takhli RTAFB, Thailand, in support of the deployed TFS. Unfortunately, the history did not document the specific maintenance squadrons or unit personnel that were sent TDY to Takhli RTAFB. Also, the history did not document unit personnel were exposed to Agent Orange or other tactical herbicides. Additionally, Joint Services Records Research Center reviewed a copy of U.S. Air Force Historical Research Agency memorandum for the Department of Veterans Affairs dated August 11, 2015. The memorandum pertained to the USAF installations operating in Thailand from 1963 through 1976. These installations were located on the following Royal Thai Air Force Bases: U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. The memorandum concluded that "...no documentation or evidence has been 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." Next, a Memorandum of Record regarding herbicide use in Thailand during the Vietnam Era was associated with the claims file in April 2016. The memorandum indicated that the Compensation and Pension Service had reviewed a listing of herbicide use and test sites outside Vietnam provided VA's office by the Department of Defense (DoD). This list contained 71 sites within the U.S. and in foreign countries where tactical herbicides, such as Agent Orange, were used, tested, or stored. Testing and evaluations of these tactical herbicides were conducted by or under the direction of the U.S. Army Chemical Corps, Fort Detrick, Maryland. The list did not contain names of individuals. Additionally, it did not contain any references to routine base maintenance activities such as range management, brush clearing, weed killing, etc., because these vegetation control activities were conducted by the Base Civil Engineer and involved the use of commercial herbicides approved by the Armed Forces Pest Control Board. The application of commercial herbicides on military installations was conducted by certified applicators. DoD advised that commercial herbicides were routinely purchased by the Base Civil Engineer under federal guidelines and that records of these procurements were generally kept no longer than two years. Also reviewed was a series of official DoD monographs describing in detail the use, testing, and storage of herbicides at various foreign and domestic locations. In addition, the Project CHECO Southeast Asia Report: Base Defense in Thailand, produced during the Vietnam era, had been reviewed. Regarding the Veteran's Thailand service, the DoD list indicated only that limited testing of tactical herbicides were conducted in Thailand from 2 April through 8 September 1964. Specifically, the location identified was the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand. The Report of these tests noted that 5 civilian and 5 military personnel from Fort Detrick, Maryland conducted the spray operations and subsequent research. This location was not near any U.S. military installation or RTAFB. Tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand. A letter from the Department of the Air Force stated that other than the 1964 tests on the Pranburi Military Reservation, there were no records of tactical herbicide storage or use in Thailand. There were records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer. In Vietnam, tactical herbicides were aerially applied by UC-123 aircraft in Operation RANCH HAND or by helicopters under the control of the U.S. Army Chemical Corps. Base Civil Engineers were not permitted to purchase or apply tactical herbicides. There were no records of tactical herbicide spraying by RANCH HAND or Army Chemical Corps aircraft in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. However, there were records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from 30 August through 16 September 1963 and from 14 17 October 1966. The 1966 missions involved the spraying of malathion insecticide for the "control of malaria carrying mosquitoes." These facts were not sufficient to establish tactical herbicide exposure for any Veteran based solely on service in Thailand. While the Thailand CHECO Report did not report the use of tactical herbicides on allied bases in Thailand, it did indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Therefore, if a Veteran's military occupational specialty or unit was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. Security police units were known to have walked the perimeters, especially dog handlers. However, as noted above, there were no records to show that the same tactical herbicides used in Vietnam were used in Thailand. It was also noted that if the Veteran's claim was based on servicing or working on aircraft that flew bombing missions over Vietnam, that there is no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Aerial spraying of tactical herbicides in Vietnam did not occur everywhere, and it was inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam. Additionally, the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation RANCH HAND. Also, there were no studies showing harmful health effects for any such secondary or remote herbicide contact that may have occurred that the office was aware of. Also stated was that if the Veteran's claim was based on general herbicide use within the base, such as small-scale brush or weed clearing activity along the flight line or around living quarters, there were no records of such activity involving tactical herbicides, only the commercial herbicides that would have been approved by the Armed Forces Pest Control Board and sprayed under the control of the Base Civil Engineer. Since 1957, the Armed Forces Pest Control Board (now the Armed Forces Pest Management Board) had routinely provided listings of all approved herbicides and other pesticides used on U.S. Military Installations worldwide. Additionally, a Formal Finding of Unavailability of Agent Orange Verification was associated with the claims file in April 2018. It was found that the evidence of record showed that the Veteran was assigned TDY on Takhli RTAFB from August 26, 1965 through October 11, 1965. The Veteran was a Jet Engine Mechanic. It was found that there was no evidence in the Veteran's file to substantiate exposure to Agent Orange. Negative responses were received from the JSRRC. All procedures to verify Agent Orange exposure had been followed. All efforts to obtain the needed information had been exhausted, and any further attempts were futile. Based on these facts, verification of exposure to Agent Orange was not able to be accomplished. In this case, the evidence does not corroborate that the Veteran served in the Republic of Vietnam, and there is no evidence in the Veteran's file to conclude that he was exposed to herbicide agents, such as Agent Orange, while stationed at the Takhli RTAFB. The Board notes that the Appellant submitted a map of the Takhli RTAFB and has stated that she understood that Agent Orange blew over the flight line in Thailand. However, as a layperson, the Appellant does not have the medical or scientific training or expertise to identify herbicides or render a competent opinion as to whether the Veteran's active duty service at an Air Force Base resulted in herbicide exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, it has not been found that the Veteran was sufficiently close to and in unprotected proximity of the perimeter while stationed at the Takhli RTAFB. See generally Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Thus, the presumptive provisions for herbicide agent exposure are not applicable in this case. Next, there is no medical evidence of any event in service or any illness or disability beginning in or related to service which played any role in bringing about the Veteran's death. The Veteran's service treatment records are negative for any symptoms, treatment, diagnosis, or complaints of any of the disabilities leading to his death. The record shows that the Veteran never filed a claim for service connection for lung cancer and that he did not have any service-connected disabilities. Finally, there is no competent medical evidence of record suggesting that the Veteran's disability is related to service, nor does the Appellant contend the Veteran's lung cancer is related to service for reasons other than Agent Orange exposure. Private medical records dated in December 2015 show that the Veteran was diagnosed with small-cell lung cancer in June 2015, and subsequent private medical records reflect that continuous treatment followed. However, the totality of the evidence does not show that the lung cancer started in service or within one year after service, nor does it show a continuity of symptomatology following service. In addition, the Appellant has not described any symptoms or manifestations of lung cancer occurring on a chronic or continuous basis since the Veteran's separation from service. The Board notes that no VA etiology opinion has been obtained; however, the Board finds that an opinion is not necessary. Again, there is no competent evidence of lung cancer in service or within one year following discharge from service. Moreover, there is no competent and probative evidence to show that the Veteran had lung cancer during or contemporaneous with service and no competent and probative evidence that the disorder is related to his service. See 38 U.S.C. § 5103A(d); Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, the Board finds that entitlement to service connection for lung cancer on a direct or presumptive basis as a chronic disease is not warranted. See 38 C.F.R. §§ 3.303(a), (b), 3.309(a). The Board does not doubt the sincerity of the Appellant's belief that the Veteran's death was somehow related to his active duty service. While sympathetic to the Appellant's claim, the only evidence of record tending to support her claim consists of her own lay statements. The record confirms that service connection was not in effect for any disability prior to the Veteran's death. Additionally, there is no probative or persuasive evidence showing that the Veteran's lung cancer is related to service. The Appellant is not competent to assert that the Veteran's cause of death was attributable to service. To opine on a matter of such medical complexity requires medical training and credentials, which the Appellant has not been shown to possess. Jandreau, supra. Again, given these facts, the Board finds no reasonable possibility that referral of this case for a medical opinion would result in favorable findings. 38 C.F.R. § 3.159(c)(4). Therefore, the preponderance of the evidence is against the Appellant's claim of entitlement to service connection for the cause of the Veteran's death, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A-L Evans, 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.