Citation Nr: 9910975 Decision Date: 04/21/99 Archive Date: 04/30/99 DOCKET NO. 97-29 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for cause of death as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The appellant is the widow of the veteran who had active service from June 1957 to June 1977. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the regional office (RO). 2. The veteran served on active duty during the Vietnam era from November 1966 to November 1967, during which time he was stationed at Udorn Airfield in Thailand. 3. The veteran's commendations include the Vietnam Service Medal with one Bronze Service Star and the Republic of Vietnam Campaign Medal, and there is satisfactory evidence that the veteran had active military service in the Republic of Vietnam during the Vietnam era. 4. At the time of his death, the veteran was service- connected for hypertension, gouty arthritis, and postoperative medial and lateral meniscectomy of the right knee with traumatic arthritis. 5. The death of the veteran was caused by lung cancer (oat cell carcinoma). 6. Service-connected disability caused or contributed substantially and materially to cause the death of the veteran. CONCLUSIONS OF LAW 1. Lung cancer (oat cell carcinoma) is presumed to have been incurred during military service, and is therefore service- connected. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.307, 3.309 (1998). 2. A disease of service origin contributed substantially and materially to cause the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Criteria Under the law, service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a) (1998). Where a veteran served 90 days or more during a period of war and malignant tumors become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service- connected, even though there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, porphyria cutanea tarda, respiratory cancers, and soft-tissue sarcomas. 38 C.F.R. § 3.309(e). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. When, after consideration of all evidence and material of record in a case before the Department with respect to benefits under the laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background Personnel records reflect that the veteran served on active duty during the Vietnam era from November 1966 to November 1967, during which time he was stationed at Udorn Airfield in Thailand. They further reflect that the veteran's commendations included the Vietnam Service Medal with one Bronze Service Star and the Republic of Vietnam Campaign Medal. The veteran received service connection for his only service- connected disabilities by a rating decision in January 1978. At that time, the veteran received service connection for hypertension, gouty arthritis, and postoperative medial and lateral meniscectomy of the right knee with traumatic arthritis, based on service medical records and VA medical examination in November 1977. In October 1996 and February 1997, the Service Department certified that the veteran served in Thailand from November 1966 to November 1967. In a witness statement dated in September 1997, a fellow service member of the veteran, J. B. M., indicated that he recalled that the veteran was in Saigon in March or April of 1967, at which time he and the veteran spent a week working on a problem with a "program code." Thereafter, he indicated that the veteran went to another base in Vietnam and spent an additional five days in an effort to solve a similar problem. August 1996 private hospital records from O. R. Medical Center reflect a final diagnosis which included extensive metastatic oat cell carcinoma of the lung with bone marrow involvement. In an August 1996 death certificate, it was reported that the immediate cause of the veteran's death was lung cancer (oat cell carcinoma). Analysis Initially, the Board of Veterans' Appeals (Board) has determined that the appellant's claim is well grounded pursuant to 38 U.S.C.A. § 5107 in that her claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Once it has been determined that a claim is well grounded, the Department of Veterans Affairs (VA) has a statutory duty to assist the appellant in the development of evidence pertinent to that claim. After reviewing the record, the Board is satisfied that all relevant, available evidence is on file and the statutory duty to assist the appellant in the development of evidence pertinent to her claim has been met. 38 U.S.C.A. § 5107. First, as was noted above, the applicable regulations presume that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam era was exposed to certain herbicide agents if he has one of the diseases listed in 38 C.F.R. § 3.309(e), unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). In this case, while the Board notes that the veteran's DD Form 214 does not reflect the veteran's receipt of any commendations regarding service in Vietnam and that the Service Department was unable to confirm Vietnam service, the Service Department's inability to confirm Vietnam service does not constitute affirmative evidence that the veteran was not exposed to Agent Orange, and there was confirmation that the veteran served for a year in Thailand. Moreover, the veteran's service personnel records confirm that the veteran was awarded the Vietnam Service Medal and Republic of Vietnam Campaign Medal, and the appellant submitted a statement from the veteran's fellow service member that corroborates two of the veteran's temporary assignments to Vietnam, including one in which the witness actually assisted the veteran on his temporary duty assignment in Vietnam. It is further noted that the veteran's period of relevant service is squarely within the Vietnam era. See 38 C.F.R. § 3.2 (1998). Consequently, based on the above, and giving the appellant the benefit of the doubt, the Board finds that there is satisfactory evidence that the veteran had active military, naval, or air service in the Republic of Vietnam during the Vietnam era and that the appellant is entitled to application of the presumptions relating to such service with respect to exposure to Agent Orange under 38 C.F.R. §§ 3.307, 3.309. The Board also notes that the cause of the veteran's death was lung cancer (oat cell carcinoma), and that this is one of the diseases for which presumptive service connection is permitted based on exposure to Agent Orange. 38 C.F.R. §§ 3.307, 3.309. Therefore, the Board finds that the veteran is properly service connected for cancer of the lung (oat cell carcinoma) pursuant to the provisions of 38 C.F.R. §§ 3.307, 3.309. As the veteran's death certificate indicates that the cause of the veteran's death was lung cancer, the Board further finds that service connection for cause of the veteran's death is warranted. ORDER Service connection for the cause of the veteran's death is granted. RONALD R. BOSCH Member, Board of Veterans' Appeals