Citation Nr: A24000538 Decision Date: 01/04/24 Archive Date: 01/04/24 DOCKET NO. 220919-278931 DATE: January 4, 2024 ORDER Entitlement to service connection for cause of death is granted. Entitlement to service connection for arteriosclerotic heart disease is granted. Entitlement to service connection for diabetes mellitus is granted. FINDINGS OF FACT 1. The Veteran died in August 2003; the death certificate lists the Veteran's immediate cause of death as acute coronary artery occlusion due to arteriosclerotic cardiovascular disease. 2. The Veteran did have service at U-Tapao Royal Thai Air Force Base during the Vietnam Era. 3. The Veteran's arteriosclerotic heart disease is related to in-service exposure to tactical herbicide agent(s). 4. The Veteran's type II diabetes mellitus is related to in-service exposure to tactical herbicide agent(s). 5. The Veteran's death was due to a service-connected disability and/or otherwise attributable to his active service to include due to any possible exposure to herbicides in service while serving in Thailand. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cause of death are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for arteriosclerotic heart disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1968 until his honorable discharge in January 1977, including service at the U-Tapao Royal Thailand Air Force Base. See January 1977 DD Form 214 (Certificate of Discharge or Separation from Active Duty); see also Service Personnel Records. The Veteran died in August 2003, and the appellant is the Veteran's surviving spouse. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). The rating decision on appeal was issued in September 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the September 2022 VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)), the Veteran elected the Hearing docket. A Board hearing was held on September 7, 2023. Therefore, the Board may only consider the evidence of record at the time of the September 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Appellant [or her representative] at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii). VA has interpreted this regulation to require "the service member's presence at some point on the landmass or the inland waters of Vietnam" for entitlement to a presumption of exposure to Agent Orange. Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009). Furthermore, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in 2019 that service in the Republic of Vietnam includes service in the territorial seas of the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The holding in Procopio was further codified in the Blue Water Navy Act of 2019. 38 U.S.C. § 1116A(c). Service on a U.S. Navy vessel may qualify as duty or visitation in Vietnam, as long as the veteran set foot on land or the vessel nevertheless was in the inland waterways or territorial waters of the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii); Haas, 525 F.3d at 1195, 1197; Gray v. McDonald, 27 Vet. App. 313 (2015); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). VA maintains a list of US Navy and Coast Guard ships associated with military service in Vietnam that addresses whether the ship was in the inland or offshore waterways and had possible exposure to Agent Orange or other herbicides. Additionally, the PACT Act (Public Law Number 117-168) provides that a Veteran who served in Thailand at any United States or Royal Thai base during the period beginning on January 9, 1962 through June 30, 1976, without regard to where on the base the Veteran was located or what military job specialty the Veteran performed is presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary; a Veteran that performed duty in Laos during the period beginning on December 1, 1965 through September 30, 1969 is presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary; a Veteran that performed duty performed in Cambodia at Mimot or Krek, Kampong Cham Province during the period beginning on April 16, 1969 through April 30, 1969 is presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary; or performed on Guam or American Samoa, or in the territorial waters thereof, during the period beginning on January 9, 1962 through July 31, 1980, or served on a ship that called at Johnston Atoll during the period beginning on January 1, 1972 through September 30, 1977 is presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. See Pub. L. 117-168. For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure include coronary artery disease, diabetes mellitus. 38 C.F.R. § 3.309(e). If a veteran was exposed to an herbicide agent during active military, naval, or air service, service connection is presumed for the following disorders: AL amyloidosis; bladder cancer; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; hypothyroidism; 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); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; Parkinsonism; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); monoclonal gammopathy of undetermined significance (generally effective October 1, 2022); and hypertension (generally effective October 1, 2026). 38 C.F.R. § 3.309(e); Pub. L. 117-168. A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; nasal and/or nasopharyngeal cancer; bone and joint cancer; breast cancer; female reproductive cancers; renal cancer; testicular cancer; abnormal sperm parameters and infertility; Amyotrophic Lateral Sclerosis (ALS); chronic persistent peripheral neuropathy; lipid and lipoprotein disorders; gastrointestinal and digestive disease including liver toxicity; immune system disorders; circulatory disorders; respiratory disorders (other than certain respiratory cancers); skin cancer; cognitive and neuropsychiatric effects; gastrointestinal tract tumors; brain tumors; endometriosis; and, any other condition for which VA has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630 (May 20, 2003); Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002); Diseases Associated with Exposure to Certain Herbicide Agents; Type 2 Diabetes, 66 Fed. Reg. 2,376 (Jan. 11, 2001); Diseases Not Associated with Exposure to Certain Herbicide Agents, 64 Fed. Reg. 59,232 (November 2, 1999); Pub. L. 117-168. The Board notes that on the date the Pact Act is enacted, Veterans whom the Secretary of Veterans Affairs determines are (a) terminally ill; (b) homeless; (c) under extreme financial hardship; (d) more than 85 years old; or (e) capable of demonstrating other sufficient cause. For all others, the PACT Act is effective October 1, 2022 for claims of entitlement to service connection for monoclonal gammopathy of undetermined significance and October 1, 2026 for claims of entitlement to service connection for hypertension. See Pub. L. 117-168. Finally, the Board notes that retroactive application under section 38 U.S.C. § 1116(a)(2)(L) in regards to the expansion of benefits afforded under the PACT Act shall only be applicable to claimants for dependency and indemnity compensation under chapter 13 of such title described in subparagraph (A)(i). See Pub. L. 117-168. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran who dies from a service-connected disability. 38 U.S.C. § 1310. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. 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 be a contributing cause, it must contribute substantially or materially to death, combine to cause death, or aid or lend assistance to the production of death. Id. 1. Entitlement to service connection for cause of death is granted. 2. Entitlement to service connection for arteriosclerotic heart disease is granted. 3. Entitlement to service connection for diabetes mellitus is granted. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Appellant asserts that the Veteran was entitled to service connection for arteriosclerotic heart disease, diabetes mellitus, and cause of death. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). At the time of the Veteran's death, he was diagnosed with arteriosclerotic heart disease and diabetes mellitus. See July 1995 VA examination. Furthermore, the Veteran's cause of death was acute coronary arteries occlusion, due to atherosclerotic cardiovascular disease. See September 2003 Death Certificate. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran was presumptively exposed to tactical herbicide agent(s) during his service at the U-Tapao Royal Thailand Air Force Base. Third, the Board finds that the evidence of record does support a finding that the Veteran's arteriosclerotic heart disease, diabetes mellitus, and cause of death are related to active military service. The Veteran served at the U-Tapao Royal Thailand Air Force Base and the above disabilities are presumptive disabilities associated with tactical herbicide agent exposure. Under the PACT Act, the Veteran is presumed to have been exposed to tactical herbicide agent(s). Accordingly, entitlement to service connection for arteriosclerotic heart disease, diabetes mellitus, and cause of death are all granted. G. William Riggs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.