Citation Nr: 1022876 Decision Date: 06/21/10 Archive Date: 07/01/10 DOCKET NO. 08-08 605 ) DATE ) ). On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, for accrued benefits purposes. 2. Entitlement to service connection for prostate cancer for accrued benefits purposes. 3. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to Dependents Educational Assistance, Chapter 35 benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, COL JCC, Jr., and PI ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The Veteran had active service with the U.S. Air Force from October 1952 to October 1961, and from October 1962 to October 1973. The Veteran died on March [redacted], 2007; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Oakland, California, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The appellant and two others testified before the undersigned Acting Veterans Law Judge at the VARO by videoconference from the RO in April 2010; a transcript of the hearing is associated with the claims file. Tr. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In October 2006, the Veteran filed claims for service connection for diabetes mellitus and prostate cancer; both claims remained pending at the time of his death. 2. Evidence of record at the time of the Veteran's death reflected that both diabetes mellitus and prostate cancer were diagnosed, in 1994 and 1998 respectively, and subjected to ongoing care for some time prior to the Veteran's death. 3. The Veteran set foot in Vietnam during his Vietnam Era service. 4. The Veteran's diabetes mellitus and prostate cancer were due to his presumed exposure to herbicide agents while in Vietnam. 5. The Veteran died on March [redacted], 2007 of metastatic adenocarcinoma of the prostate which was of service origin. 6. Because the Veteran's death was due to service-connected disability, the appellant is entitled to Chapter 35 benefits. CONCLUSIONS OF LAW 1. Service connection for diabetes mellitus, type II, for accrued benefits purposes, is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5101, 5107, 5121 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.1000 (2009). 2. Service connection for prostate cancer, for accrued benefits purposes, is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5101, 5107, 5121 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.1000 (2009). 3. A disability incurred in service caused the Veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2009). 4. Basic eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is established. 38 C.F.R. §§ 3.327(b)(2)(iii), 3.340(b), 21.3021(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Criteria An accrued benefits claim arises after a Veteran has died. Although a Veteran's claim does not survive his death, certain individuals may be entitled to accrued benefits under certain conditions. Landicho v. Brown, 7 Vet. App. 42, 47 (1994). An individual entitled to accrued benefits may be paid periodic monetary benefits to which a Veteran was entitled at the time of death under existing ratings or based on evidence in the file at the time of his death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. In order to support a claim for accrued benefits, the Veteran must have had a claim pending for such benefits at the time of death or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c). In this case, the Veteran had filed claims for entitlement to service connection for diabetes mellitus and prostate cancer in October 2006; these claims were pending at the time of his death. His surviving spouse filed her claim for benefits, to include accrued benefits, within a month of the Veteran's death. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). Presumptive service connection is also available to herbicide exposed Veterans for certain listed diseases, including prostate cancer and diabetes mellitus, type II, when those conditions are manifested to a compensable degree at any time after exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307, 3.309(e). A Veteran who had active service in the Republic of Vietnam at any time from January 9, 1962, to May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). To be entitled to the presumption of herbicide exposure, and hence presumptive service connection for the diseases associated with that exposure, it must be established that the Veteran actually served in-country. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (a claimant must have been present within the land borders of Vietnam at some point in the course of his military duty to be entitled to the presumption of herbicide exposure under 38 U.S.C. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii)). III. Analysis A. Accrued Benefits The Veteran's service personnel records show one year, 10 months and 11 days overseas duty, to include a tour in Thailand. He was stationed with the 56th Security Police Squadron, Nakhon Phanom Royal Thai Air Force Base (RTAFB) from August 1970 to May 1971. The Veteran alleged that he flew from Washington State in a commercial airline on July 1970 and landed in Vietnam, where he stayed overnight waiting for a plane to take him to the Nakhon Phanom RTAFB. He said he had done the same on his return trip home. The appellant has reiterated these allegations, and states that her husband was scrupulously honest. At the April 2010 hearing, another former USAF member and friend of the late Veteran testified that they had had similar experiences flying to and from Thailand. Tr. at 5. He himself had flown from Korea to Vietnam, and then on Thailand; the witness had located a copy of his travel orders describing this stopover, and had in fact been granted presumptive service connection for herbicide related disabilities of his own. The Board finds that the Veteran did set foot in Vietnam on two occasions, during flights to and from his duty station in Thailand. The allegations are uncontradicted by the record, are consistent with the facts and circumstances of his service, and are supported by independent documentary evidence showing that stopovers did occur. Resolving all reasonable doubt in favor of the Veteran, he is presumed to have been exposed to herbicides. Therefore, service connection for both diabetes mellitus and prostate cancer is warranted for accrued benefits purposes. 38 C.F.R. § 3.307, 3.309. B. Cause of Death The appellant is also claiming entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1310. The cause of a Veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). In this case, the Veteran's death certificate shows that the primary cause of death was metastatic carcinoma of the prostate, for which he is now service connected. Service connection for the cause of his death is in order. C. Chapter 35 Eligibility For the purposes of educational assistance under Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the Veteran died as a result of a service- connected disability. 38 U.S.C.A. §§ 3500, 3501, 3510, 3512; 38 C.F.R. §§ 3.807(a), 21.3020, 21.3021. In this case, the cause of the Veteran's death has been shown to be service-related. Prostate cancer is presumptively service connected, and is the listed cause of the Veteran's death. Accordingly, the Board finds that the appellant has met the criteria for eligibility for DEA benefits. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for diabetes mellitus, type II, for accrued benefits purposes, is granted. Service connection for prostate cancer, for accrued benefits purposes, is granted. Service connection for the cause of the Veteran's death is granted. Entitlement to Dependents Educational Assistance, Chapter 35 benefits is granted. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs