Citation Nr: 18900011
Decision Date: 08/15/18	Archive Date: 08/15/18

DOCKET NO. 180620-36
DATE:	August 15, 2018
ORDER
Entitlement to service connection for cause of death is denied.
FINDINGS OF FACT
1. According to the Veteran’s amended death certificate, the Veteran’s immediate cause of death was non-ST segment myocardial infarction, with underlying causes to include sepsis, respiratory syncytial virus pneumonia, and diabetes mellitus, type II, with non-Hodgkin’s lymphoma as a contributing to his death but not resulting in the underlying causes.
2. The preponderance of the evidence does not establish in-service herbicide exposure.
3. No condition contributing to the cause of the Veteran’s death is shown to have had its onset in service or to be otherwise related to active military service.
CONCLUSION OF LAW
The criteria for entitlement to service connection for cause of death have not been met. 38 U.S.C. §§ 1101, 1110, 1131 1112, 1113, 1116, 1131, 1137, 1310, 5107(b) (2012); 38 C.F.R. §§ 3.103, 3.303, 3.304, 3.307, 3.309, 3.312 (2018).  
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran completed active duty service with the United States Coast Guard from September 1955 to October 1978.  The Veteran completed his active duty service while under the jurisdiction of the Treasury Department and the Department of Transportation.  See 38 C.F.R. § 3.7.  The Veteran died on January [redacted], 2017.  The appellant is his surviving spouse.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA).  This law creates a new framework for Veterans and other appellants dissatisfied with VA’s decision on their claim to seek review.  The appellant chose to participate in BEAAM, the Board of Veterans’ Appeals Early Applicability of Appeals Modernization research program, and elected to pursue her appeal directly to the Board.  This decision has been written consistent with the new AMA framework.
The appellant submitted evidence during a period of time when the record was closed and therefore, the Board may not consider this evidence.  The appellant may submit this evidence, along with a supplemental claim, and VA will make another decision on the claim, considering any new evidence in addition to the evidence previously considered.  Specific instructions for filing a supplemental claim are included with this decision.
1. Entitlement to service connection for cause of death is denied.
The appellant has argued that the Veteran was exposed to Agent Orange during his active duty service in Thailand during the Vietnam era.  
As a preliminary matter, neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott, 789 F.3d 1375, to a duty to assist argument).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U. S. 396 (2009).
Addressing the substantive merits of the claim on appeal, 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.  Service connection may be granted for disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease 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 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 aided the production of death. 38 C.F.R. § 3.312(c).  Additionally, there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death.  38 C.F.R. § 3.312(c)(4).
Certain diseases associated with exposure to herbicide agents, including type II diabetes mellitus, non-Hodgkin’s lymphoma, and ischemic heart disease to include myocardial infarction, may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met.  See 38 C.F.R. § 3.309 (e).  A Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii).  Service in the Republic of Vietnam means actual service in country in Vietnam from January 9, 1962, through May 7, 1975, and includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. §§ 3.307 (a)(6)(iii), 3.313(a).  With regard to exposure to herbicides outside of Vietnam, VA’s Adjudication Procedures Manual (M-21) states that if a Veteran served in the Air Force at certain Royal Thai Air Force Bases, including Don Muang, during the Vietnam Era, and was stationed near the air base perimeter as shown by credible evidence, herbicide exposure should be conceded.  M-21, Part IV, subpart ii, ch. 2, sec. C, para. 10(q). 
The relevant facts are as follows.  As reflected above, the Veteran’s amended death certificate reflects that the immediate cause of death was non-ST segment myocardial infarction. Underlying include sepsis, respiratory syncytial virus pneumonia, and diabetes mellitus, type II.  Non-Hodgkin’s lymphoma is listed as a contributing to his death but not resulting in the underlying causes of sepsis, respiratory syncytial virus pneumonia, and diabetes mellitus, type II.  A November 2015 VA examination report notes a reported onset of diabetes mellitus, type II in 1990.  Private treatment records from 2013 to 2015 documents a history of non-Hodgkin’s lymphoma.  Service treatment records are negative for type II diabetes mellitus, non-Hodgkin’s lymphoma, and any heart disease.  The Veteran was not service-connected for any disabilities at the time of his death.  
However, personnel records indicate that the Veteran served at the Loran Station United States Coast Guard facility located in Lampang, Thailand from November 22, 1969 to November 13, 1970 and that he was ordered to report to a building located at the Don Muang Royal Thai Air Force Base on November 14, 1970 for a flight departing to Clark Air Base, located in the Philippines.  
A July 2015 memorandum from the Compensation and Pension Service confirmed the sporadic use of non-tactical (commercial) herbicides within fenced perimeters for allied bases in Thailand during the Veteran’s period of service.  On this basis, the July 2015 memorandum indicates that if a Veteran’s MOS (military occupational specialty) or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides.  The memorandum further indicates that only limited tactical herbicide testing was conducted in Thailand in April 1964, and that tactical herbicides such as Agent Orange were used and stored in Vietnam, not Thailand.
The Veteran’s personnel records do not indicate that the Veteran served near the perimeter of either the Don Muang Royal Thai Air Force Base or Loran Station or that his military occupational specialty (MOS) caused him to be in contact with the perimeter of either facility.  Moreover, there are no lay statements of record indicating that the Veteran served near or was specifically in contact with the perimeter of either the Don Muang Royal Thai Air Force Base or Loran Station, or that he was otherwise exposed to herbicide.  Additionally, the Board notes that the appellant has specifically argued that the Veteran was exposed to Agent Orange, a tactical, not commercial herbicide, which was not stored or otherwise used in Thailand during the Veteran’s period of service.  Therefore, based on the foregoing, the Board finds that although there is evidence that the Veteran served at Loran Station as well as some evidence that he was briefly present at Don Muang Royal Thai Air Force Base for a departing flight, there is insufficient evidence of actual exposure to herbicide, as the evidence establishes only his presence at the facilities discussed above.  Accordingly, entitlement to service connection for cause of death is denied.  38 U.S.C. §§ 1101, 1110, 1131 1112, 1113, 1116, 1131, 1137, 1310, 5107(b); 38 C.F.R. §§ 3.103, 3.303, 3.304, 3.307, 3.309, 3.312.  
 
WILLIAM H. DONNELLY
Acting Veterans Law Judge
Board of Veterans’ Appeals
M. Coyne, Associate Counsel	Department of Veterans Affairs

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