Case 21060389

Summary

The appellant, surviving spouse of the Veteran, sought to reopen a previously denied claim for service connection for the cause of death. The Veteran served in the Air Force from August 1969 to August 1973, including service at Udorn Royal Thai Air Force Base (RTAFB) in Thailand. The immediate cause of the Veteran's death in March 2007 was ischemic heart disease (IHD). The appellant contended that the Veteran's IHD was related to herbicide agent exposure during his service in Thailand. The Board found that new and material evidence, including historical reports, VA policy regarding RTAFBs, and a buddy statement, was submitted to reopen the claim. This evidence suggested the Veteran's duties as an aircraft maintenance specialist placed him near the base perimeter at Udorn RTAFB, where herbicides were used. The Board conceded the Veteran's exposure to herbicide agents on a facts-found basis, noting his MOS and proximity to the perimeter. Since IHD is a disease presumptively associated with herbicide exposure under 38 C.F.R. § 3.309(e), and resolving reasonable doubt in the appellant's favor due to equipoise in the evidence, the Board granted service connection for IHD. Consequently, service connection for the cause of death was also granted. The Board found the Veteran's statements credible regarding his service duties and proximity to the base perimeter.

Rationale

New and material evidence received to reopen claim.; Veteran served in Thailand near base perimeter, exposed to herbicides.; Ischemic heart disease is presumptively linked to herbicide exposure.; Benefit of the doubt resolved in appellant's favor due to equipoise.

Full Decision Text

Citation Nr: 21060389
Decision Date: 09/26/21	Archive Date: 09/26/21

DOCKET NO. 16-57 822
DATE: September 26, 2021

ORDER

New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for the cause of the Veteran's death.

Service connection for cause of the Veteran's death is granted.

FINDINGS OF FACT

1. In a June 2012 rating decision, a Department of Veterans' Affairs (VA) Regional Office (RO) denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death.

2. The appellant did not initiate an appeal of the June 2012 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 

3. New evidence received since the time of the June 2012 rating decision relates to unestablished facts necessary to substantiate the appellant's claim of entitlement to service connection for the cause of the Veteran's death and raises a reasonable possibility of substantiating the claim.   

4. There is credible evidence that the Veteran's daily activities and work duties as an aircraft maintenance specialist involved service near the perimeter of the Udorn Royal Thai Air Force Base (RTAFB) such that he was exposed to herbicide agents.

5. The Veteran's ischemic heart disease is presumed to be related to his in-service herbicide agent exposure.

6. The evidence is in relative equipoise as to whether the cause of the Veteran's death was etiologically related to his active service, to include exposure to herbicide agents.

CONCLUSIONS OF LAW

1. The June 2012 rating decision that denied service connection for the cause of the Veteran's death is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2011). 

2. New and material evidence has been received to reopen the claim of entitlement to service connection for cause of the Veteran's death.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018).

3. Resolving reasonable doubt in the appellant's favor, the criteria for an award of service connection for cause of death have been met.  38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1969 to August 1973.  Unfortunately, the Veteran died in March 2007.  The appellant is his surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In her November 2016 substantive appeal, the appellant indicated that she wanted to appear at a Board hearing.  However, she later withdrew that request, through her authorized representative, in October 2020.  See 38 C.F.R. § 20.704(e).

In October 2020, the Veteran's attorney submitted additional evidence after the appeal was certified to the Board.  As in this case, section 501 of the Camp Lejeune Act of 2012 provides an automatic waiver of evidence submitted by a veteran or his or her representative with or after a substantive appeal received on or after February 2, 2013.  Therefore, the Board may properly consider this evidence.

1. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for the cause of death.

The appellant seeks to reopen her previously denied claim of entitlement to service connection for cause of the Veteran's death.

The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a).  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  New and material evidence
 and material evidence is presented or secured with respect to that claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a).  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened.  38 C.F.R. § 3.156(a).  For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Service connection for cause of death was previously denied in a March 2011 rating decision.  In December 2011, the appellant submitted a VA Form 21-4138 that was construed as a new claim for service connection for cause of death.  The AOJ denied entitlement to service connection for cause of death in a June 2012 rating decision.  Service connection for cause of death was denied because the available evidence did not show the Veteran met the requirements for presumptive service connection under 38 C.F.R. § 3.309(e) or otherwise establish a medical nexus.  The appellant was notified of the decision, and of her appellate rights, but she did not initiate an appeal during the one-year period following the mailing of notice of that decision.  Nor was any new and material evidence received during that one-year period.  As a result, the RO's decision became final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 

The Board finds that new and material evidence has been received.  Evidence received since the previous final denial includes VA treatment records; April 2016 correspondences from the appellant; pages from the Project Contemporary Historical Examination of Current Operations Report: Base Defense in Thailand (Project CHECO Report); a VA Formal Finding that VA lacks the information the U.S. Army and Joint Services Records Research Center (JSRRC) requires to verify herbicide exposure in Vietnam and Thailand; a buddy statement and associated supporting documentation including extract from The Air Force and Herbicides in Southeast Asia 1961-1971, additional pages from the CHECO Report, Field Manual: Tactical Employment of Herbicides, Department of the Army Supply Bulletin, and photographs; and a June 2005 correspondence from the Air Force Programs and Legislation Division.  This evidence provides additional evidence with regard to the circumstances of the Veteran's possible exposure to herbicide agents during his service in Thailand.  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus, 3 Vet. App. at 512-513.  This evidence is new in that it has not previously been received and is not cumulative or redundant of evidence previously of record.  The Board also finds this evidence to be material because it addresses the previously unestablished element of an in-service event.  Therefore, the claim for service connection for the cause of the Veteran's death is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.

2. Service connection for cause of the Veteran's death is granted.

The appellant seeks to establish service connection for the Veteran's cause of death.

Service connection may be granted for the cause of the Veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death.  38 C.F.R. § 3.312(a).  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

In determining whether a service-connected disability contributed to death, it
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; 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(c)(1).  For service connection to be granted for the cause of the Veteran's death, the appellant must show one of the following: a cause of the Veteran's death is (or should be) service-connected or a service-connected disability caused the Veteran's death.  38 U.S.C. § 1310.

At the time of his death, the Veteran was service connected for residuals of left knee debridement of meniscus tear and chondromalacia; left ankle tenderness; tinnitus; and bilateral hearing loss.  However, his death certificate that indicates his immediate cause of death was ischemic heart disease (IHD).  The appellant contends the Veteran's IHD is attributable to his active service in Thailand and/or a stopover in Vietnam, to include herbicide agent and/or other chemical exposure therein.

In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the evidence must show the following: (1) that the veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents listed under 38 C.F.R. § 3.309 (e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii).  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  If a veteran was exposed to an herbicide agent during active military, naval, or air service, the certain diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service.  The list of diseases associated with exposure to certain herbicide agents includes 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).  38 C.F.R. § 3.309(e).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Although statutory and regulatory provisions do not establish a presumption of exposure to herbicide agents based on service in Thailand, per information from the Department of Defense (DoD), VA recognizes that herbicide agents, including Agent Orange, were used at certain times and places at some military bases in Thailand during the Vietnam Era between January 1962 and May 1975.

Current VA policy provides for special consideration of herbicide agent exposure for veterans whose duties placed them on or near the perimeters of certain designated Royal Thai Air Force Base in Thailand (RTAFBs) during the Vietnam era. Specifically, if a Veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang RTAFB as an Air Force security policeman, security patrol dog handler, or member of a security police squadron, or otherwise served near a base perimeter, as shown by the Veteran
 at some military bases in Thailand during the Vietnam Era between January 1962 and May 1975.

Current VA policy provides for special consideration of herbicide agent exposure for veterans whose duties placed them on or near the perimeters of certain designated Royal Thai Air Force Base in Thailand (RTAFBs) during the Vietnam era. Specifically, if a Veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang RTAFB as an Air Force security policeman, security patrol dog handler, or member of a security police squadron, or otherwise served near a base perimeter, as shown by the Veteran's military occupational specialty (MOS), daily work duties, performance evaluations, or other credible evidence, then herbicide agent exposure should be conceded on a facts-found or direct basis.  See U.S. Dep't of Veterans Aff., Compensation and Pension Service Bulletin 3 (May 2010).

The Veteran's service treatment records are silent for a heart condition, to include IHD.  The Veteran's June 1969 enlistment and July 1973 separation reports of medical examination both indicate normal clinical evaluations of the heart.  However, his DD Form 214 reflect that his MOS was an aircraft maintenance specialist.  His military personnel records also reflect service at Udorn RTAFB from December 1971 to December 1972.  His performance report from this period of service indicates that an aircraft maintenance specialist inspects, repairs, maintains, services, and modifies aircraft and aircraft installed equipment.  Aircraft maintenance specialists also perform crew chief, flight chief, and maintenance staff functions, including conducting on-the-job training.

A December 1986 VA treatment record notes 'mitral valve prolapse, foramen ovale versus atrial septal defect.'  An August 1995 VA treatment record notes a history of 'hole in heart.'  An October 1998 cardiology clinic report notes dilated ascending aorta, ejection fraction of 55 to 60 percent, mild biatrial enlargement to 2-D echo, possible bicuspid aortic valve with sclerosis and at least 2+ (moderate) anteriorly directed aortic insufficiency, and redundant mitral valve (MV) leaflets.  An October 2000 VA treatment record notes no history of myocardial infarction, angina on exertion, angina at rest, congestive heart failure (CHF), irregular heartbeats, or syncopal episodes.  A July 2003 VA treatment record notes the Veteran denied chest pain and displayed regular heart rate, palpable pedal pulses, and no edema.  He reported occasional shortness of breath.  A July 2003 VA treatment record also notes a systolic murmur radiating to right carotid.  An August 2003 VA treatment record notes chest pain.  A July 2003 VA radiology report notes no evidence for active cardiopulmonary disease.  A November 2003 VA treatment record reflects sinus tachycardia, right atrial enlargement, left ventricular hypertrophy, ischemia, and 'ST & T wave abnormality.'  An October 2004 VA treatment record notes aortic insufficiency, mild left ventricular hypertrophy with moderate left ventricular enlargement and left atrial enlargement; ventricular septal defect; aortic regurgitation; mild diastolic abnormalities; and aortic sclerosis. 

In an October 2003 VA Form 21-4138, the Veteran reported coming into contact with herbicides and benzene.  In a May 2004 correspondence, the Veteran indicated that he was stationed on the Mekong River with the 56th special operations wing outside of the 'Udong' RTAFB.  The Veteran reported their drinking and washing water came directly from the Mekong River, which was contaminated by algae.

A June 2005 correspondence from the Air Force Programs and Legislation Division of the Office of Legislative Liaison indicates C-123 aircraft were never based at any of the RTAFB but used the bases as stops en route to missions in Laos. 

A November 2010 memorandum of record regarding herbicide use in Thailand during the Vietnam era reiterates that the DoD list indicates only that limited testing of tactical herbicides was conducted in Thailand from April 1964 through September 1964; however, it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters such that if a veteran's MOS or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides.  A February 2011 Defense Personnel Records Information Retrieval System (DPRIS) response noted an inability to document or verify that the Veteran
B but used the bases as stops en route to missions in Laos. 

A November 2010 memorandum of record regarding herbicide use in Thailand during the Vietnam era reiterates that the DoD list indicates only that limited testing of tactical herbicides was conducted in Thailand from April 1964 through September 1964; however, it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters such that if a veteran's MOS or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides.  A February 2011 Defense Personnel Records Information Retrieval System (DPRIS) response noted an inability to document or verify that the Veteran was exposed to Agent Orange while serving at Udorn RTAFB.

The record contains several excerpts from the Project CHECO Report.  The Project CHECO Report reflects there was use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. 

In a June 2015 VA Form 21-4138 and the July 2015 notice of disagreement, the appellant reported that the Veteran was stationed at Udorn RTARB from December 1971 to December 1972 and passed away from IHD related to Agent Orange exposure.  An April 2016 correspondence indicated that the Veteran was stationed at Udorn RTARB and worked on the flight line.  The April 2016 correspondence also referenced the Project CHECO Report and the May 2010 Compensation and Pension service bulletin. A n April 2016 correspondence also indicated that the Veteran died of an ischemic heart attack but led a healthy lifestyle.

A July 2016 memorandum made a formal finding that the VA lacked the information the U.S. JSRRC requires to verify herbicide exposure in Vietnam and Thailand.  

An October 2020 buddy statement and photographs by N.V.A. discuss the use of herbicides in Okinawa and other locations in Southeast Asia from 1967 to 1969.  N.V.A. indicated that he supervised troops using Agent Orange to control vegetation in Okinawa as a supply officer.  He included a photograph of barrels that reportedly contained Agent Orange that he routinely provided U.S. military bases in Southeast Asia, including Thailand.  He indicated that he was sent to Thailand during his service to confirm that Agent Orange was received and being used inside the bases for vegetation control. 

The appellant's representative asserted in an October 2020 memorandum of law that documentation demonstrates that herbicides were used and stored in Thailand, including Udorn RTAFB.  The representative also reiterated that page 73 of the Project CHECO report indicated that the perimeter was very close to the aircraft at several points at the Udorn RTAFB.  The representative further asserted that the Veteran would have been both on and near the perimeter because he would have performed aircraft system tests, such as engine throttle checks, which were performed on the aircraft trim pad immediately next to the perimeter.  The representative also noted that the barracks at Udorn were 'literally across a single lane road from the perimeter.'  In support of this contention, the representative included a map and other photographs purporting to show the layout of Udorn RTAFB.

A document received in October 2020 appears to show an October through December 1968 request for purchase of service to clear path of trees and brush around the South perimeter of the Udorn RTAFB.  In October 2020, the appellant also submitted an excerpt of, 'Operation Ranch Hand: The Air Force and Herbicides in Southeast Asia 1961-1971,' which discusses herbicide use in Vietnam and Laos.  The appellant also submitted an excerpt from 'Field Manual: Tactical Employment of Herbicides,' which includes information for use of planning herbicide operations.  The appellant also submitted an excerpt from 'Department of the Army Supply Bulletin: Herbicides, Pest Control Agents, and Disinfectants,' which furnishes guidance for Army facilities in the requisitioning of pesticides, herbicides, and various other compounds.

After a review of the evidentiary record, and resolving any reasonable doubt in the Veteran's favor, the Board finds the Veteran's job duties brought him near the perimeter of the Udorn RTAFB such that he was likely exposed to herbicide agents during service.  Although the Veteran's MOS was not a security policeman, security patrol dog handler, or member of a security police squadron, the Veteran was competent to report information within the realm of his personal knowledge, including his proximity to the perimeter of the base.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The Board further finds that there is no basis in the record to question the Veteran's credibility regarding his statements as to the nature and responsibilities of his service
 record, and resolving any reasonable doubt in the Veteran's favor, the Board finds the Veteran's job duties brought him near the perimeter of the Udorn RTAFB such that he was likely exposed to herbicide agents during service.  Although the Veteran's MOS was not a security policeman, security patrol dog handler, or member of a security police squadron, the Veteran was competent to report information within the realm of his personal knowledge, including his proximity to the perimeter of the base.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The Board further finds that there is no basis in the record to question the Veteran's credibility regarding his statements as to the nature and responsibilities of his service while at Udorn RTAFB.  His military personnel records confirm that he was stationed at Udorn and worked in aircraft maintenance.  Indeed, given his duties as an airplane maintenance specialist and the evidence of his daily work duties, the Board finds it is reasonable to infer that the Veteran worked near the base perimeter and traversed such while at the Udorn RTAFB.  Because this location is one of the facilities where herbicides were sprayed in Thailand, the Veteran's in-service herbicide exposure is established on a facts-found basis.

The evidence shows the Veteran was diagnosed with IHD.  As indicated above, IHD is one of the diseases recognized as being associated with herbicide agent exposure.  See 38 C.F.R. § 3.309(e).  Accordingly, after resolving all reasonable doubt in the appellant's favor, the Board finds service connection for IHD is warranted. 

Consequently, as the Veteran's death certificate indicates the Veteran's immediate cause of death (final disease or condition resulting in death) was IHD, the Board further finds that service connection for the cause of the Veteran's death is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102, 3.312(a); see also Gilbert, 1 Vet. App. 49.  The appeal is granted.

 

 

J. Ragheb

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M.Aoughsten, Associate 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.