Citation Nr: 0726412 Decision Date: 08/23/07 Archive Date: 08/29/07 DOCKET NO. 05-40 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependents Education Assistance (DEA) benefits under Chapter 35 of the U. S. Code. REPRESENTATION Appellant represented by: Barton F. Stichman, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from June 1950 to June 1976. The veteran died in October 1993. The appellant is the veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2007. The appellant also submitted additional documentary evidence at the hearing. She waived consideration by the agency of original jurisdiction in the first instance. The Board will consider the evidence in its appellate review. The appellant was granted entitlement to nonservice-connected cause of death burial benefits in February 1994. In a February 2004 submission, her attorney argued that she should be paid burial benefits for a service-connected death. The issue has not been developed or certified on appeal and is referred to the RO for such further development as may be necessary. FINDINGS OF FACT 1. The veteran served on active duty in the U. S. Air Force from June 1950 to June 1976. 2. The cause of the veteran's death in October 1993 was listed on his certificate of certificate as cardiopulmonary arrest that was due to, or as a consequence of intracerebral bleed, that was due to, or as a consequence of metastatic carcinoma of the prostate. Hypertension and natural causes were also listed as other significant conditions that contributed to death but did not result in the underlying cause noted. 3. At the time of the veteran's death, service connection was in effect for limitation of motion of the cervical spine and spondylolisthesis of Grade I with radicular symptoms in the right leg. He was rated at 20 percent for each disability. His combined service-connected disability rating was 40 percent. 4. Under VA law prostate cancer is a disease presumed to be due to exposure to herbicide agents in the Republic of Vietnam during the Vietnam era. 5. There is documentary evidence that the veteran was in the Republic of Vietnam on August 9, 1967. CONCLUSIONS OF LAW 1. Service connection for the cause of the veteran's death is warranted. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2006). 2. Entitlement to Dependents Education Assistance (DEA) benefits under Chapter 35 of the U. S. Code is established. 38 U.S.C.A. § 3501 (West 2002); 38 C.F.R. § 3.807(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) provides for VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2006). Because the decision herein is favorable to the appellant, further discussion of the VCAA is not required. I. Cause of Death Background The veteran served on active duty in the U. S. Air Force from June 1950 to June 1976. The veteran and the appellant were married in November 1952. A DD 214 for a period of service from August 1967 to August 1970 noted that the veteran received the Vietnam Service Medal (VSM), with two bronze service stars, and the Republic of Vietnam Campaign Medal (RVCM) during the enlistment. The veteran was granted service connection for limitation of motion of the cervical spine and spondylolisthesis of Grade I with radicular symptoms in the right leg in January 1977. He was awarded a 20 percent disability rating for each disability. The veteran was not serviced connected for any other disability during his lifetime. The appellant originally sought entitlement to service connection for the veteran's cause of death in October 1993. She submitted a claim for Dependency and Indemnity Compensation (DIC) and burial benefits. The veteran's certificate of death showed he died in October 1993. His immediate cause of death, listed in Part I of the certificate, was cardiopulmonary arrest that was due to, or as a consequence of intracerebral bleed, that was due to, or as a consequence of metastatic carcinoma of the prostate. Hypertension and natural causes were also listed as other significant conditions that contributed to death but did not result in the underlying cause given in Part I. VA treatment records for the period from June 1987 to July 1988 did not reflect treatment for any of the conditions listed on the certificate of death except for the veteran's prostate. He was seen for complaints of back pain and hospitalized for evaluation in March and April 1988. A hospital summary from that period noted that the veteran was treated for adenocarcinoma of the prostate with metastasis. The veteran had also undergone transurethral resection of the prostate and a bilateral orchiectomy. He was seen for follow-up until July 1988. The appellant's claim was denied in October 1993. The rating decision found, in pertinent part, that the veteran's prostate cancer was not present in service and did not manifest itself until 1988. The rating decision also noted that the veteran's service-connected disabilities did not cause or contribute to his death. The appellant was granted entitlement to nonservice-connected death burial benefits in February 1994. See 38 C.F.R. § 3.1600(b) (2006). The appellant's current claim for DIC and Chapter 35 benefits originated as a result of a review mandated by court orders originating from the case Nehmer v. U. S. Veterans' Administration, 712 F. Supp. 1404 (N.D. Cal. 1989). The RO wrote to the appellant about the review. The appellant was asked to submit any evidence that she had to show the veteran served in Vietnam. She was advised VA would attempt to develop such evidence. A review of the veteran's service medical records shows he was treated in 1967 and 1968 at facilities in Thailand. One entry from June 1968 noted that the veteran wanted "pep" pills for aircraft crews. It was noted that the crews had gotten them in the past, along with sleeping pills. The entry also noted that the crews flew every 4 days for 14-17 hours. They were usually on station in the airplane for 10- 11 hours per flight. Air Force records were received in August 2004. The records document orders that were issued to personnel assigned to Detachment #2 (DET #2), Tactical Air Warfare Center (TAWC), MacDill Air Force Base (AFB), Florida. The majority of the individuals, including the veteran, possessed Top Secret security clearances. They were to be aircraft crewmembers for an EC-121K aircraft and were to participate in Project Rivet Top. The actual destination for the period of temporary duty was not noted, only a destination of Air Post Office (APO) San Francisco 96288. (This is later identified as Korat Royal Thai AFB (RTAFB). The veteran's Air Force Form 7, Airman Military Record, was received in January 2005. The Form 7 noted that the veteran served on temporary additional duty (TAD) from July 23, 1967, to July 16, 1968. The veteran's permanent duty station during that time was Det #2, TAWC, MacDill AFB. The Form 7 noted the veteran's award of the VSM and RVCM. In block 14 of the form, labeled as Combat, it was noted that the veteran had 27 out-of-country combat missions and was part of the Vietnam Air Offensive Campaign from July 1967 to March 1968, and Vietnam Air Offensive Campaign, Phase III, March 1968 to July 1968. The appellant submitted statements from two individuals, T. T., and A.W., along with a Nonrated Individual Flight Record for A.W. in February 2005. The statements were nearly identical. Both men stated that they served with the veteran in Project Rivet Top. They noted that their unit was stationed in Udorn, Thailand, and at Korat RTAFB between August 1967 and August 1968. They said their unit flew strike missions over the Gulf of Tonkin. They reported being on the same flight crew with the veteran and that crew consisted of approximately 18 people. They would fly strike missions every morning and every evening. On the way back to the base on the morning missions they would stop to refuel at Danang, Vietnam. Everyone was required to be off the plane when it was being refueled. The Board notes that both individuals were included on the aircrew list of members having orders for Project Rivet Top. The appellant testified at a Travel Board hearing in May 2007. She also submitted evidence, with a waiver, to support her claim. The evidence consisted primarily of copies of "travel claims" for the veteran's period of temporary duty in Thailand. The forms are actually DD Form 1351-2, Travel Voucher or Subvoucher. The forms were used by military and government civilian employees to document their travel, and account for the days on travel, time at a temporary site, mode of travel, and reimbursable expenses. One such voucher, dated in February 1968, reported on the veteran's departure from MacDill AFB on July 23, 1967. The veteran documented stops, times of arrival and departure, and modes of transportation from that time until October 16, 1967, when he reached his ultimate destination at Korat, RTAFB. Of note is that the veteran reported that he arrived at Tan Son Nhut Airbase in Vietnam at 1110 on August 9, 1967, and departed at 1525 that same day. A review of the information provided in the accounting classification block of the form shows that it is identical to that provided on orders issued on AF Form 626 and dated in July 1967. Further, the form shows that computations were performed by the office that processed the claim and there is an official stamp in the "Paid By" section on the form. Thus the Board finds that this travel voucher is a copy of a valid service document. Analysis According to applicable laws and regulations, service connection for the cause of a veteran's death requires evidence that a service-connected disability was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2006). A service- connected disability will be considered the principal 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) (2006). A service-connected disability will be considered a contributory cause of death when such disability contributed substantially, or combined to cause death. 38 C.F.R. § 3.312(c) (2006). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West. 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). Further, certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even though there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) (2006) are met. See 38 C.F.R. § 3.309(e) (2006). In general, for service connection to be granted for one of these diseases, it must be manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii) (2006). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. A veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to the contrary. The Board notes that prostate cancer was added to the list of diseases presumed to be incurred in service, based on herbicide exposure in Vietnam, in November 1996. See 61 Fed. Reg. 57,586-57,589 (Nov. 7, 1996) (codified at 38 C.F.R. § 3.309(e) (2006)). Most of the evidence of record is circumstantial to establish that the veteran served in Vietnam at some point between July 1967 and July 1968. This is shown by his SMRs documenting treatment at his base in Thailand, and going on long flights every 4 days, his 27 combat missions, his receipt of the VSM and RVCM, and the statements from T.T. and A.W. However, the only direct documentary evidence of the veteran actually setting foot in Vietnam is his travel voucher of February 1968. This is an official document that reflects that the veteran was paid benefits based on the itinerary shown on the form. An itinerary that included several hours at Tan Son Nhut Airbase in Vietnam. Although the other evidence of record tends to show that the veteran did spend time in Vietnam between 1967 and 1968, the travel voucher serves as direct evidence of that fact. The amount of time spent in Vietnam is not dispositive of a claim, only that this veteran was in Vietnam during the appropriate period. In light of the evidence to document the veteran's presence in Vietnam during the requisite period, herbicide exposure is presumed. As the veteran was diagnosed with prostate cancer in 1988 and died, in part, from prostate cancer in October 1993, service connection for the veteran's cause of death is granted. II. Chapter 35 Benefits Regarding the claim for educational benefits under Title 38, U. S. Code, Chapter 35, it is noted that the surviving spouse of a veteran will have basic eligibility for benefits where the veteran was discharged from service under other than dishonorable conditions, and had a permanent total service- connected disability in existence at the date of the veteran's death; or where the veteran died as a result of a service-connected disability. 38 U.S.C.A. § 3501 (West 2002); 38 C.F.R. § 3.807(a) (2006). In this case, the Board has determined that the veteran died as the result of a service-connected disease, prostate cancer. Accordingly, the appellant has met the conditions for eligibility for dependents' educational assistance under Title 38, U. S. Code, Chapter 35. ORDER Entitlement to service connection for the veteran's cause of death is granted. Entitlement to Chapter 35 benefits is granted. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs