Citation Nr: 18160592
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-02 524
DATE:	December 27, 2018
ORDER
Entitlement to service connection for the cause of the Veteran’s death is denied.
FINDINGS OF FACT
1. The Veteran's record placed him at Royal Thai Air Force Base Ubon from January 1967 to December 1967 and August 1968 to August 1969, but his records do not indicate duties at or near the air base perimeter which subjected him to exposure to herbicide agents, and thus there is no presumption that he was exposed to herbicide agents while serving on active duty.
2. The Veteran died in October 2013. The immediate cause of death listed on his death certificate is glioblastoma and the other listed significant conditions contributing to death are prostate cancer, lung cancer and diabetes mellitus.
3. At the time of his death, the Veteran was not service connected for any disabilities.
4. The preponderance of the evidence shows that the Veteran's fatal glioblastoma, prostate cancer, lung cancer and diabetes mellitus did not manifest in service, or until many years thereafter, and is not related to service or to an incident of service origin.
CONCLUSIONS OF LAW
1. The Veteran's prostate cancer, lung cancer and diabetes mellitus were not incurred as a result of active duty service, nor may the disorders be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1113, 1116, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).
 2. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veteran served honorably in the Air Force from February 1966 to December 1969.
This matter comes before the Board of Veterans Appeals as a result of a December 2015 rating decision of the St. Paul Pension and Management Center in St. Paul, MN.
The Veteran died in October of 2013. The appellant is his surviving spouse. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.§ 1310 (a); 38 C.F.R. § 3.5 (a)(1).
1. Service Connection for Cause of Death
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 
Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). 
 A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307 (d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). 
If a veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38  C.F.R. § 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 38  C.F.R. § 3.307 (d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), shall be service-connected if the requirements of 38  C.F.R. § 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 38  C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e).
In May 2010, VA published a Compensation & Pension (C&P) Service Bulletin that established "New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea." In explaining the need for the new procedures, the bulletin acknowledged 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, as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand."
In August 2015, the M21-1MR manual provisions relating to claimed herbicide exposure in Thailand were rescinded and replaced with new M21-1 provisions, and were thereafter subject to additional revision. The current version of M21-1, Part IV., Subpart ii., Chapter 1., Section H., Topic 5., paragraph b., provides that for veterans who served during the Vietnam Era in the U.S. Air Force in Thailand at one of the listed Royal Thai Air Force Bases (RTAFBs), including Ubon, as a security policeman, security patrol dog handler, member 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,... concede herbicide exposure on a direct/facts-found basis." (Emphasis added). This allows for presumptive service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309 (e).
Where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure.
VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 
Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104 (a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107(2012); 38 C.F.R. §§ 3.102, 4.3 (2017). 
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 C.F.R. § 3.312 (a). To establish service connection for the cause of a Veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997).
In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. A service-connected disability will be considered as the principal, or primary, cause of death when such 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). 
Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; 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 (c)(1); Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994).
Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993).
The central question in this case is whether the late Veteran is entitled to a presumption of exposure to herbicide agents, including Agent Orange, based on service in Thailand during the Vietnam era. If so, service connection for his diagnosed prostate cancer, cancer of the lungs and diabetes mellitus may be granted on the basis that each disease is presumed to be the result of in-service herbicide agent exposure. 
The appellant contends that service connection is warranted for the cause of the Veteran's death, as well as prostate cancer, lung cancer and diabetes mellitus as a result of herbicide exposure while the Veteran was stationed at the Royal Thai Air Force Base (RTAFB) in Ubon, Thailand. Prostate cancer, lung cancer and diabetes mellitus were listed as “other significant conditions contributing” to the Veteran’s death, but not resulting in the underlying cause. The Veteran was not service connected for any disability at the time of his death in October 2013. His death certificate lists his immediate cause of death as glioblastoma.
The appellant’s representative also asserts that the Veteran is entitled to service connection for cause of death based on 1) Veteran’s service medals: Vietnam Service Medal (VSM) and Vietnam Campaign Medal (RVCM), which would suggest that he served in Vietnam; 2) the Veteran’s service at the Ubon RTAFB Thailand, which is on the VA’s list of Thailand military bases with Agent Orange exposure; and 3)Veteran’s death certificate, which lists prostate cancer, cancer of the lung and diabetes mellitus as “other significant conditions contributing” to Veterans death.  All three conditions are on the presumptive list for diseases known to result from Agent Orange herbicide exposure.
The appellant also asserts in her Form 9 that a recently declassified Department of Defense report contains evidence that there was significant use of herbicides on the fenced in perimeter of military bases in Thailand to remove foliage that provided cover for the enemy. The Board makes reference to this report on pages 4-5 of this decision: "Project CHECO Southeast Asia Report: Base Defense in Thailand."
In addition, a 2012 treatment note made in conjunction with a VA agent orange examination stated by history that the Veteran “was involved in spraying Agent Orange  and was in a recently sprayed area” during the time he was stationed in Ubon RTAFB, Thailand.
The Board notes that in December 2016, the VA issued a formal finding from the Regional office of St. Paul, MN, Pension Management Center that there was no evidence of record that the Veteran was exposed to herbicides during his military service at Ubon RTAFB, Thailand.  
Regarding the Veteran's Thailand service, the Board notes the presence of service personnel records, to include personnel evaluations that place the Veteran at RTAFB Ubon from February 1967 to April 1967, as an Aircraft mechanic, later as an Assistant Crew Chief from April 1967 to December 1967, and then as a crew chief from April 1969 to July 1969, assigned to the 433 Tactical Fighter Squad.  Veteran’s DD-214 include the Vietnam Service Medal (VSM) and Vietnam Campaign Medal (RVCM).  Arrival dates for his tour of duty in Ubon RTAFB Thailand include the periods of January 1967, August 1968 and January 1969. See Personnel records
As a jet aircraft mechanic, the Veteran was responsible for inspection condition and lubrication of aircraft installed equipment, and sub-assemblies on F-4C aircraft during phase inspections; he was also responsible for safe and proper working habits and house-keeping of dock and adjacent areas.  
As an assistant crew chief, the Veteran was responsible for pre-flights and post-flight light inspections and unscheduled maintenance on assigned aircraft. The Veteran performed turnaround servicing and maintenance for all flights. The Veteran was also responsible for the overall condition of aircraft and AFTO Forms 781 and 200 Series; coordinates all maintenance with the specialist.
As crew chief, the Veteran was responsible for all actions accomplished on his particular aircraft. He scheduled and monitored all work accomplished by specialists or support personnel. He was also responsible for providing aircrew with safe and reliable aircraft. 
There is no other record of the Veterans service during the Vietnam war era.  Second, although the Veteran was awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal, service personnel records do not show that he actually served in Vietnam or travelled to Vietnam for the purposes of 38 C.F.R. § 3.307 (a)(6)(iii).  See Personnel Records
The Board finds the evidence of the Veteran's service at the Ubon RTAFB in Thailand during the Vietnam war era to be competent and credible. However, the Board also notes that while the Veteran was a jet aircraft mechanic, assistant crew chief and crew chief at the Ubon RTAFB, the evidence does not show that he was assigned to nor was he required to perform any aspect of security around the base perimeter. Furthermore, the Veteran's records do not place him near the Ubon base perimeter on any regular or periodic basis. Therefore, the Board finds that the Veteran's duties and responsibilities did not bring him near the base perimeter, failing to satisfy the guidance found in the M21-1MR: "near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence." (Emphasis added). On this evidence, the Board cannot concede herbicide exposure on a facts-found basis and consistent with the policy outlined in M21-1MR IV.ii.1.H.5.b.  Although the evidence includes a 2012 VA treatment note made in the course of an Agent Orange examination that stated by history that the Veteran “was involved in spraying Agent Orange and was in a recently sprayed area,” the same treatment note erroneously stated that “he served in Vietnam . . .”  It is unclear the source of such history, but it is inconsistent with the records of the Veteran’s actual service.
The Board thus finds that Veteran served at Ubon RTAFB in Thailand during the time claimed but did not serve in security duties or any other duty in or near the base perimeter, and therefore cannot be considered to have been exposed to herbicide agents for the purposes of VA laws and regulations for his Thailand service. The Board thus cannot concede exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § § 3.307 (a), 3.309(e). The Veteran's records do not indicate any other possible method of exposure to herbicide agents during the Veteran's entire period of active service during the Vietnam War era.
As noted previously, where the evidence does not warrant presumptive service connection, a Veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure.
Here, the Veteran has been diagnosed with glioblastoma, prostate cancer, lung cancer and diabetes mellitus by medical providers. These diagnoses satisfy the requirement of a current disability in the Veteran's claim for service connection. The treatment record indicates that these conditions were diagnosed beginning in 2007, approximately 38 years after the end of Veterans service and approximately 6 years prior to the Veterans death.
Service connection could still be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To that end, the Board has considered whether there is otherwise a direct link between the Veteran's glioblastoma, prostate cancer, lung cancer or diabetes mellitus and active service. His military service treatment records make no mention of glioblastoma, prostate cancer, lung cancer or diabetes mellitus and his appellant nor his representative have not alleged that his glioblastoma, prostate, lung cancer or diabetes mellitus had their onset in service. The record first notes treatment for glioblastoma in 2012. In addition, the record notes a diagnosis for prostrate and lung cancer in 2007 and diabetes mellitus in 2012, some 33 years after his separation from active duty service and well outside of the period for presumptive service connection for diabetes mellitus as a chronic disease manifested to a compensable degree within the first post-service year. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). 
Moreover, there is no probative medical evidence or medical opinion suggesting that there may be an association between glioblastoma, prostrate, lung cancer or diabetes mellitus and any incident of the Veteran's service. The Board notes that the late Veteran's own assertions that the claimed prostate cancer, lung cancer and diabetes mellitus is related to service to include herbicide exposure in service are afforded no probative weight in the absence of evidence that the Veteran has the expertise to render opinions about medical matters. Although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case, prostate cancer, lung cancer and diabetes mellitus, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, the Board finds that the late Veteran's lay statements of record cannot be accepted as competent evidence sufficient to establish service connection for prostate cancer, lung cancer and diabetes mellitus. They are not sufficient to establish exposure to herbicides in service and they are not competent to diagnose glioblastoma, prostate cancer, lung cancer and diabetes mellitus and relate it to any event, injury, or disease during service.
Finally, the Board has closely reviewed the medical and lay evidence, the appellant statements and arguments, and all evidence of record. A preponderance of the evidence is against finding (on either a direct or presumed basis) a nexus between a disease or injury in service (including herbicide exposure) and the Veteran's cause of death for glioblastoma, prostate cancer, lung cancer and diabetes mellitus. There is no evidence of these conditions in service. Glioblastoma, prostate cancer, lung cancer and diabetes mellitus did not arise within one year of separation, and there is no evidence of continuity of symptomatology following service. Furthermore, the Veteran did not have duties at or near the perimeter of the Ubon RTAFB, Thailand, and there was no actual exposure to herbicides as a result of his duties while stationed in Thailand. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, the claim must be denied.
Finally, the Board is truly mindful of the Veteran's very distinguished and honorable service to our nation, as well as the great loss which has been suffered by the appellant. We are, however, restricted to the application of the law to the evidence, and unfortunately, we are unable to grant the benefit sought in this very compelling case.
 
Michael Pappas
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	CLittle, Associate Counsel 

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