Citation Nr: 0102535 Decision Date: 01/29/01 Archive Date: 02/02/01 DOCKET NO. 98-19 662A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the veteran's death, to include as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason R. Davitian, Counsel INTRODUCTION The veteran served on active duty from August 1958 to April 1981. He died in July 1997. The appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from a rating decision in July 1998 by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 1999, the Board remanded this case to the RO for further development of the evidence. The case was returned to the Board in October 2000. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The veteran did not serve in Vietnam. 3. There is no evidence that the veteran was exposed to herbicides while on active duty. 4. Service-connected disability has not been shown to have caused or contributed substantially or materially to the veteran's death. CONCLUSION OF LAW Service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1310 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.310, 3.312 (2000); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that the veteran served in Vietnam and that he was exposed to Agent Orange while present in Vietnam. She further contends that exposure to Agent Orange in Vietnam caused the veteran to develop lung cancer, from which he died in July 1997. As a preliminary matter, the Board is satisfied that all relevant evidence has been obtained with respect to this claim. In this regard, the Board notes that records pertaining to the veteran's service and, in particular, the locations at which he served on active duty have been obtained from official sources. The appellant has not identified any additional records which would be relevant to consideration of the issue on appeal. The Board, therefore, finds that VA has made reasonable efforts to assist the appellant in attempting to substantiate her claim and that additional assistance is not required. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). 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. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. §§ 3.310, 3.312. The veteran's death certificate states that he died in July 1997 at the age 56 years, and that the immediate cause of his death was non-small cell lung cancer, due to (or as a consequence of) metastasis of the malignancy. No significant conditions contributing to death but not resulting in the underlying cause were identified. Regarding the appellant's assertions that the veteran's fatal lung cancer was incurred as a result of exposure herbicides in Vietnam, the law provides that veterans who served on active duty in Vietnam during a specified period of time are presumed to have been exposed to herbicides. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, and has a disability 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)(6)(iii) (2000). If a veteran was exposed to an herbicide agent during active military, naval, or air service, respiratory cancers, including cancer of the lung, shall be service-connected, if the requirements of § 3.307(a)(6) are met, even though there is no record of such disease during service. The veteran's cause of death (a respiratory cancer) thus would be a disease subject to presumptive service connection if it is determined that he served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975. The determinative issue in this case is whether the veteran served on active duty in Vietnam. Based on a thorough review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that during active duty the veteran served in Vietnam, was present in locations other than Vietnam which involved duty in Vietnam, or visited Vietnam while he was on active duty. The appellant contends that the veteran did serve in Vietnam. She points to his DD Form 214, separation document, which indicates that he was awarded the Republic of Vietnam Campaign Medal with one Oak Leaf Cluster and the Vietnam Service Medal with one Service Star. The appellant has submitted a copy of the eligibility requirements for bestowal of the Vietnam Service Medal authorized by Executive Order 111231 (July 8, 1965), which, in pertinent part, provided that the medal could be awarded to all members of the Armed Forces of the United States serving at any time between July 4, 1965 and March 28, 1973 in Thailand, Laos or Cambodia, or any of the airspace thereover, and in direct support of operations in Vietnam. In addition, a statement by the NPRC appears to lend support to the appellant's contention. In April 1999, the RO received a response from NPRC which gave the dates April 24, 1968 to April 4, 1969 as the dates of service by the veteran in the Republic of Vietnam. However, other official records specific to the veteran demonstrate that he did not in fact ever serve in Vietnam and the Board finds those records to have more probative value than the DD Form 214 and the statement by the NPRC. The evidence of record includes the veteran's complete service personnel records. Those records contain specific information as to the veteran's duty stations, and Vietnam was not one of them. These administrative records describe his military duties, his detailed performance appraisals, and the medals and commendations he received. The records state that his duty stations in Asia were Japan, Thailand, Taiwan, and the Philippines. The veteran's personnel records reflect that he arrived at the 388 Tactical Fighter Wing (TFW) in Korat, Thailand on April 24, 1968. He was assigned to the 553 Reconnaissance Wing in Korat, Thailand, on September 22, 1968. On March 20, 1969, the veteran was provided a delay enroute until April 19, 1969, at which point he reported to the 475 TFW in Misawa, Japan. An Air Force (AF) Form 910, SGT Performance Record, period of report and supervision from September 22, 1968 to April 4, 1969, states that the veteran served in Thailand for at least part of the period specified by NPRC as the dates of service in the Republic of Vietnam. Furthermore, the veteran's pay records were obtained by the RO from the Defense Finance and Accounting, Denver Center, DAA, Denver, Colorado 80279. These records state that the veteran was with the 388 TFW as of April 27, 1968 and are entirely negative for any indication that the veteran served in Vietnam. The Board finds that the official records showing that the veteran did not serve in Vietnam are more probative than the DD Form 214 and the April 1999 NPRC statement. The payroll and other administrative records are comprehensive and provide detailed information as to the veteran's responsibilities, duties, and duty locations. They do not show any service or even one visit to Vietnam. Significantly, the records show that the veteran show that the veteran's service in the United States Air Force during the Vietnam War was in ground positions and not in flight crew positions, so there is no evidence that he was ever in the airspace over the Republic of Vietnam. The records also do not show any temporary duty assignments in Vietnam. The Board must, therefore, conclude that the preponderance of the evidence is against a finding that the veteran was in Vietnam. It follows that the requirements for presumptive service connection for the cause of his death as a result of exposure to herbicides have not been met. The Board also finds that the preponderance of the evidence is against direct service connection for the cause of the veteran's death. First, there is no medical evidence that the veteran's fatal lung cancer was in fact caused by any exposure to a herbicide before, during, or after his active service, and the appellant has not contended that any such medical evidence exists. Moreover, at the time of the veteran's death, service connection had been established only for dermatitis, evaluated as 10 percent disabling, and pes planus, evaluated as noncompensable. There is no evidence, and the appellant has not contended, that the veteran's service-connected dermatitis or pes planus caused or contributed substantially or materially to cause his death. A malignant tumor which is manifested to a compensable degree within one year of the veteran's separation from service may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In the veteran's case, however, there is no evidence, and the appellant has not contended, that lung cancer was manifest within one year of the veteran's separation from active service in April 1981. Entitlement to service connection for the cause of the veteran's death, to include as a result of exposure to herbicides, on either a direct or presumptive basis, is not established. As the preponderance of the evidence is against the appellant's claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Service connection for the cause of the veteran's death, to include as a result of exposure to herbicides, is denied. JAMES A. FROST Acting Member, Board of Veterans' Appeals