Citation Nr: 21027917 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 15-23 142A DATE: May 7, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure is granted. Entitlement to service connection for Parkinson's disease, to include as due to herbicide exposure, is granted. Entitlement to service connection for neuropathy of the bilateral upper extremities, to include as due to diabetes mellitus or herbicide exposure, is granted. Entitlement to service connection for neuropathy of the bilateral lower extremities, to include as due to diabetes mellitus or herbicide exposure, is granted. Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to burial benefits is granted. REMANDED Entitlement to service connection for malignant fibrous histiocytoma is remanded. FINDINGS OF FACT 1. Resolving all doubt in the appellant's favor, the Veteran is shown to have been exposed to herbicides while serving in Thailand at the Don Muang Royal Thai Air Force Base (RTAFB) during the Vietnam Era. 2. The Veteran was diagnosed with diabetes mellitus, type II. 3. The Veteran was diagnosed with Parkinson's disease. 4. The Veteran's peripheral neuropathy of the bilateral upper extremities is at least as likely as not caused by his diabetes mellitus, type II. 5. The Veteran's peripheral neuropathy of the bilateral lower extremities is at least as likely as not caused by his diabetes mellitus, type II. 6. The Veteran's Parkinson's disease is listed as his cause of death. 7. The appellant incurred expenses related to the Veteran's funeral and burial. CONCLUSIONS OF LAW 1. The Veteran's diabetes mellitus, type II, is presumed to have been incurred during his active service in Thailand. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(e). 2. The Veteran's Parkinson's disease is presumed to have been incurred during his active service in Thailand. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(e). 3. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities as secondary to service-connected diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities as secondary to service-connected diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 6. The criteria for entitlement to service-connected burial benefits have been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1962 to February 1966. He died in June 2015. The appellant is his surviving spouse and has been substituted in this matter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). A January 2014 rating decision denied service connection for Parkinson's disease, diabetes mellitus, type II, neuropathies of the bilateral upper and lower extremities, and malignant fibrous histiocytoma. A July 2016 decision denied the appellant's claim for entitlement to service connection for the cause of the Veteran's death. A December 2016 decision denied the appellant's claim of entitlement to burial benefits. In June 2017, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. Service Connection 1. Entitlement to service connection for diabetes mellitus and Parkinson's disease, to include as due to herbicide exposure Service connection may be granted for 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 competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a disease enumerated by the regulations become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1133; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus, type II, and Parkinson's disease, shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, 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(d)(6)(iii). VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identifies several bases in Thailand, including Don Muang RTAFB. C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran who served on an air base in Thailand and provided perimeter security. The existence of a current disability is not at issue. Post-service treatment records show the Veteran had been diagnosed with diabetes mellitus, type II, and Parkinson's disease prior to his death. See May 2013 Discharge Summary (reflecting diagnoses of diabetes mellitus, type II, and Parkinson's disease). Although the Veteran's military personnel records are silent for his service in Thailand, his service treatment records show he sought medical treatment in Thailand at Don Muang RTAFB from March 1964 to April 1964. Accordingly, exposure to herbicide agents may have occurred, depending on the nature and circumstances of his period of duty there. Therefore, the only remaining question is whether the Veteran was exposed to herbicide agents in service such that presumptive service connection is warranted. In November 2019, the RO made a formal finding that VA lacked the information necessary to verify herbicide exposure in Thailand. See November 2019 VA Memorandum. In support of the claim, the Veteran submitted a statement by a fellow servicemember, T.B., who provided details regarding their assignment at Don Muang RTAFB. T.B. stated that he and the Veteran shared the same duties and roomed together. He clarified that their barracks and mess hall were within one mile of the perimeter. He further stated that the use of herbicides to clear vegetation was not limited to the perimeter of Don Muang RTAFB, but rather many parts of the base had herbicides used and "it was just as effective" as what was used on the perimeter. See January 2015 T.B. Affidavit. The Board finds that T.B. is competent to make such statements. See Layno v. Brown, 6 Vet. App. 465, 49 (1994). Furthermore, his statement is credible and consistent with the places, type, and circumstances of the Veteran's service. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Resolving all reasonable doubt in favor of the appellant, and based on the facts found, the Board has determined that the Veteran was exposed to herbicides during his military service in Thailand. As the Veteran had service at Don Muang RTAFB that exposed him to herbicides, his diabetes mellitus, type II, and Parkinson's disease are presumed to have been incurred in active service based on such; there is no evidence to the contrary. See 38 C.F.R. §§ 3.307(a), 3.309(e). Therefore, service connection for diabetes mellitus, type II, and Parkinson's disease is established. See id.; 38 C.F.R. § 3.303. 2. Entitlement to service connection for neuropathy of the bilateral upper extremities and for neuropathy of the bilateral lower extremities to include as secondary to diabetes mellitus. As stated above, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either: (a) proximately caused by; or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA treatment records reflect the Veteran was diagnosed with diabetic neuropathies of the hands and feet. See February 2015 Home Based Primary Care Physical. In light of the medical evidence showing the Veteran's peripheral neuropathy of the bilateral upper extremities and peripheral neuropathy of the bilateral lower extremities to his now service-connected diabetes mellitus, and no evidence to the contrary, service connection is warranted. 3. Entitlement to service connection for the cause of the Veteran's death The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. See 38 U.S.C. § 1310; see also 38 C.F.R. § 3.312. A service-connected disability is considered the "principal" cause of death when that disability, "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 inherently one not related to the principal cause. 38 C.F.R. § 3.312(c). A contributory cause must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." Id. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In the present claim, the Veteran died in June 2015. His death certificate lists the cause of death as Parkinson's disease. See June 2015 Certification of Death. As stated above, the claim of entitlement to service connection for Parkinson's disease has been granted. Therefore, service connection for the cause of the Veteran's death is established. 38 C.F.R. § 3.312. 4. Entitlement to burial benefits Where a veteran's death is service connected, VA will pay the maximum burial allowance specified under 38 U.S.C. § 2307 for the burial and funeral expenses of a qualifying veteran. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1704. As service connection for the cause of the Veteran's death has now been established, and the appellant provided funeral receipts with her application for burial benefits showing she personally incurred expenses related to the Veteran's funeral and burial, the appellant is entitled to VA burial benefits at the service-connected rate. 38 U.S.C. § 2307; 38 C.F.R. §§ 3.1700-3.1704. REASONS FOR REMAND 1. Entitlement to service connection for malignant fibrous histiocytoma is remanded. As stated above, the Veteran was found to be exposed to herbicides during his active duty service. A note following 38 C.F.R. § 3.309(e) lists several disabilities that are included in the term soft-tissue sarcoma, including malignant fibrous histiocytoma. The Veteran's post-service treatment records are silent for any diagnosis of malignant fibrous histiocytoma. In his May 2013 claim, he noted that he received treatment for his claimed disabilities at the VA Medical Center(VAMC) in Tampa, Florida. Accordingly, in June 2017 the Board remanded the claim to obtain the Veteran's complete VA treatment records. Unfortunately, only records dated from July 2014 to June 2015 were obtained. A July 26, 2002, Nursing Note shows that the Veteran was seen for a "new patient" visit at the Pasco VA Outpatient Clinic. On remand, the Veteran's complete VA treatment records dated from July 2002 to July 2014 should be obtained. The matters are REMANDED for the following action: 1. Ask the Appellant to identify any/all medical facilities where the Veteran was treated for malignant fibrous histiocytoma during his lifetime. Then, make arrangements to obtain the Veteran's medical records from any/all identified facilities. 2. Make arrangements to obtain the Veteran's complete VA treatment records dated from July 2002 to July 2014, to include, but not limited to, from the Pasco OPC in Port Richey, Florida. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Stedman, Michael 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.