Citation Nr: 22040186 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 15-16 769 DATE: July 13, 2022 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in November 2008; the cause of death was multiple myeloma. 2. The Veteran did not serve in the Republic of Vietnam (Vietnam) during his active military service; he served at Takhli Airfield, Thailand, from 1969 to 1970, but his performance reports do not show any duties that would place him near the perimeter of the airbase or otherwise expose him to herbicide agents. 3. The service treatment records are negative for evidence of multiple myeloma; and multiple myeloma was diagnosed many years after discharge from service, and has not been related to service by continuity of symptomatology or by competent medical opinion. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1310, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1966 to March 1970. The Veteran died in November 2008. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision. This case was previously remanded by the Board in June 2018. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. 1. Entitlement to service connection for the cause of the Veteran's death is denied. The Appellant contends that the multiple myeloma, which led to the Veteran's death, was the result of herbicide agents exposure during his service. She asserts that the Veteran was exposed to Agent Orange while serving at an air base in Thailand during the Vietnam conflict, both while on and when going off the base. She further contends that the Veteran may have served in Vietnam with military intelligence. See, e.g., May 2016 Appellant statement; October 2011 Notice of Disagreement; December 2010 Appellant statement. In a February 2016 statement, the Appellant stated that Agent Orange is airborne and thus every time a person would walk outside on the Thailand Base, they would inhale the chemicals. The death certificate shows that the Veteran died in November 2008. The immediate cause of death was multiple myeloma. There were no underlying conditions or secondary causes listed. Pursuant to 38 U.S.C. § 1310, dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312. The record shows that the Veteran was not service-connected for any disabilities at the time of his death. Therefore, the Board will determine if the disability that resulted in his death was incurred due to active service. In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). In a DIC claim based on cause of death, the first requirement, "evidence of a current disability, will always have been met (the current disability being the condition that caused the veteran to die)". Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). If malignant tumors become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of tumors during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975 is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307. The Appellant contends that the Veteran may have entered Vietnam while performing duties with military intelligence. However, a review of the Veteran's military personnel records does not reflect that he entered Vietnam at any time during his active military service. The Appellant further believes that the Veteran was exposed to herbicide agents while at Takhli Air Force Base, Thailand. Exposure to herbicide agents is not presumed for service in Thailand but may be shown by the evidence on a fact found basis. 38 C.F.R. § 3.307(a)(6). VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide agents exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide agents exposure. Most troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member o f a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. Duties that were known to have placed veterans on or near the perimeter included security policeman, security patrol dog handlers, members of the security police squadron, or those who are otherwise shown to be near the air base perimeter by evidence of daily work duties, performance evaluations, or other credible evidence. If there is evidence of such perimeter duty, then exposure to herbicides can be acknowledged. If a veteran was exposed to an herbicide agent during active military, naval, or air service, there are certain diseases that shall be service-connected even though there is no record of such disease during service. Multiple myeloma is one of these diseases. 38 C.F.R. § 3.309(e). For the purposes of this section, 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 Vietnam era. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'd Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The Veteran's service personnel records confirm that he was stationed at the Takhli, Royal Thai Air Force Base in Thailand from March 1969 to February 1970. His duty titles during that time were administrative specialist and mail clerk. In December 2021 and April 2022, professional researchers from the Veteran's Benefits Administration, Office of Field Operations, Military Records Research Center in partnership with the Air Force Historical Research Agency (AFHRA), completed a comprehensive research of the Veteran's claimed exposure while assigned to 355th Combat Support Group at Takhli, Royal Thai Air Force Base, Thailand, from March 1969 to February 1970. AFHRA responded that neither Agent Orange nor any other tactical herbicides were used at the Royal Thai Air Force Base during the Veteran's tour of duty. They were unable to verify that the Veteran was exposed to Agent Orange, while serving as a mail clerk. The information was negative and did not report on unit personnel from 355th Combat Support Group exposure to Agent Orange or their duty locations in proximity to the base perimeters. As such, no evidence was located to support documentation of the claimed exposure event. The Veteran's service treatment records are completely negative for symptoms or diagnoses relating to multiple myeloma. The December 1969 separation examination found that the Veteran's vascular system was normal. The post-service treatment records include private records that show the discovery and history of the Veteran's multiple myeloma. The records are negative for any mention of herbicides, Thailand, Vietnam, or the Veteran's military service. They do not contain any opinion that relates the Veteran's multiple myeloma to service, to include herbicide agents exposure in service. Furthermore, no such opinion has been received since the death of the Veteran. Based on a review of the relevant lay and medical evidence, the Board concludes that there is no basis for an award of service connection for the cause of the Veteran's death. Initially, the Board notes that as there is no evidence that the Veteran had Vietnam service, his exposure to herbicide agents, such as Agent Orange, cannot be presumed. The evidence does not show that the Veteran served in Vietnam or even entered while in route to or from Thailand. Furthermore, the available evidence indicates that the Veteran was not exposed to herbicides while in Thailand. The Veteran's military personnel records that cover his tour in Thailand have been obtained and reviewed. These do not show that the Veteran was required to go to the air base perimeter due to his daily work duties. There is simply no indication in the probative and competent evidence to show exposure to herbicide agents. As such, the Board must conclude that there is no basis to relate the multiple myeloma that led to the Veteran's death to herbicide agent exposure in service, either on a presumptive or direct basis. 38 C.F.R. §§ 3.307, 3.309(e). The evidence also shows that the Veteran's multiple myeloma was first shown several years after his discharge from service. It cannot be presumed to have been incurred during service as a chronic disability. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Finally, the evidence does not show that multiple myeloma can be related to active service on any other basis. The service treatment records are negative for multiple myeloma and, as noted, this disease was first diagnosed decades after discharge. It has not been related to active service by any competent medical opinion. Continuity of symptomatology has been considered; however, there is no indication from the record that the Veteran reported any such symptomatology prior to his death. The Board has considered the Appellant's statements and her sincere opinion that the Veteran's multiple myeloma was related to herbicide agents exposure in service. The Appellant in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Appellant in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence. Therefore, the evidence persuasively weighs against the Appellant's claim under all theories of entitlement, and service connection for the cause of the Veteran's death is not established. The claim is denied. S. M. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.