Citation Nr: 25006554 Decision Date: 05/14/25 Archive Date: 05/14/25 DOCKET NO. 23-00 144 DATE: May 14, 2025 ORDER Entitlement to service connection for the Veteran's cause of death is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence of record establishes that the Veteran's hypertension is related to in-service exposure to herbicide agents in the Republic of Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran's cause of death have been met. 38 U.S.C. §§ 1110, 1111, 1116, 1310; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to December 1973. The Veteran passed away in September 2015. The Appellant is his surviving spouse. This appeal is being processed in the legacy review system. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2017 rating decision issued by a Department of Veterans Affairs (VA) regional office, the Agency of Original Jurisdiction (AOJ). In a March 2024 decision, the Board denied service connection for the Veteran's cause of death. The Appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2024 Order, the Court granted a Joint Motion for Remand (JMR), vacating the March 2024 Board decision, and remanding the matter to the Board for further action consistent with the terms of the JMR. Consistent with that order, a hearing was held in April 2025 and a transcript of the hearing has been associated with the claims file. Service Connection A principal cause of death is one which, either singly or jointly with another condition, was the immediate or underlying cause of death or was otherwise etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to cause death, combined to cause death, or aided or lent assistance to the production of death. Determining whether service connection for cause of death is warranted is based on the same statutory and regulatory scheme which governs service connection for a disease or injury incurred in or aggravated by service, which is set forth below. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be competent and credible evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including coronary artery disease, ischemic heart disease, and hypertension, even though there is no record of such disease during service in a veteran who had active military, naval, air, or space service, during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e)(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act, was enacted on August 10, 2022. See PACT Act, Pub. L. No. 117-168 § 3373, 136 Stat. 1759 (2022). Section 403 of the PACT Act expands the presumption of in-service herbicide agent exposure to additional territories and countries, including any U.S. or Royal Thai military base in Thailand from January 9, 1962, through June 30, 1976, without regard to where on the base the veteran was located or the military occupational specialty the veteran performed; Laos from December 1, 1965, through September 30, 1969; Mimot, Krek, or the Kampong Cham Province in Cambodia from April 16, 1969, through April 30, 1969; Guam or American Samoa or in the territorial waters of Guam or American Samoa from January 9, 1962, through July 31, 1980; or on Johnston Atoll or on a ship that called at Johnston Atoll from January 1, 1972, through September 30, 1977. Id. at § 403 (codified as amended at 38 U.S.C. § 1116). Entitlement to service connection for cause of death. The Appellant contends that the Veteran's death is due to his presumed exposure to herbicide agents in service while taking part in a salvage operation in Vietnam. The Appellant contends that, although the command history of USS Thomaston (LSD 28), which the Veteran served on, does not document operations in Vietnam, minor boat operations are usually not chronicled in the official history of a warship, and it is reasonable to presume that Thomaston could have stopped off the coast of South Vietnam after stopping in New Zealand and Australia before continuing on to ports farther west. See January 2025 Informal Hearing Presentation; April 2025 Hearing Transcript. Alternatively, the Appellant contends that the Veteran's cause of death was due to occupational exposure to asbestos in service. See April 2025 Correspondence. Because the Board finds service connection based on presumed herbicide agent exposure, it will not address this theory of contention or evidence submitted of this theory. As noted above, the Veteran passed away in September 2015. His death certificate lists the immediate cause of death as myocardial infarction, with coronary artery disease and hypertension as underlying causes of death. The Board therefore finds that the current disability element has been met. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999) (for service connection for cause of death, the current disability element will always be met when the current disability is the condition that caused the veteran's death). At the time of his death, the Veteran was not service-connected for any disabilities. Thus, the Board must determine whether the in-service incurrence and nexus elements of the claim have been met. The Veteran's military personnel records show that the Veteran served aboard Thomaston from December 1971 to December 1973. Information provided by the Defense Personnel Records Information Retrieval System does not document operations by the Thomaston in the contiguous waters off the coast of Vietnam during 1972. See September 2017 DPRIS Response. However, in September 2017, the Appellant submitted a buddy statement from G.D.S., who served with the Veteran on Thomaston from December 1971 to December 1973. G.D.S. stated that in June 1972, while off the coast of South Vietnam near Vinh Binh Province and the Mekong Delta, they departed the ship's landing craft to perform a salvage detail on an abandoned South Vietnamese Navy Patrol Craft. G.D.S. further described that they proceeded from the South China Seas to a tributary of the Mekong Delta, went upriver 20 miles, and located the patrol craft washed up on a riverbank. He finally stated that they spent two days completing the salvage of the patrol craft, sleeping on the riverbank, and then returned to Thomaston. The Board finds this statement credible, and finds that G.D.S. is competent to testify as to his observations of the locations they served as well as their duties. Furthermore, the Appellant testified at the April 2025 hearing that she has spoken to another shipmate of the Veteran who confirmed they were involved in a delivery in Da Nang, Vietnam. Specifically, she spoke with a shipmate who was involved in dropping concussion grenades during the retrieval of a damaged boat in the salvage mission in Da Nang. Therefore, resolving any reasonable doubt in favor of the Veteran, the Board concedes the Veteran's exposure to herbicide agents. 38 U.S.C. § 1116(d); 38 C.F.R. § 3.307(a)(6)(iii). In sum, the evidence of record demonstrates the Veteran was presumptively exposed to herbicide agents in service and has an underlying cause of death of hypertension. Therefore, service connection is warranted for the Veteran's cause of death on a presumptive basis. Marcus N. Fulton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Marshall, J. 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.