Citation Nr: 1803043 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 14-15 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD S. S. Mahoney, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1970 to December 1971. He died in January 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction over the appeal has since been transferred to Portland, Oregon RO. In December 2016, the appellant presented testimony before the undersigned Veterans Law Judge. A hearing transcript is of record. The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT During his lifetime, the Veteran was not service-connected for any disability; he was not a former prisoner of war (POW) and he was not in receipt of or entitled to receive compensation at the 100 percent rate due to service-connected disability for a period of at least five years immediately after his discharge from active service or for 10 or more years prior to his death. CONCLUSION OF LAW The criteria for entitlement to DIC under 38 U.S.C. § 1318 are not met. 38 U.S.C. §§ 1318, 5107 (2012); 38 C.F.R. §§ 3.102, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant seeks entitlement to DIC under 38 U.S.C. § 1318. VA law provides benefits to the surviving spouse and to the children of a deceased veteran in the same manner as if the veteran's death were service connected when the death is not the result of the veteran's own willful misconduct and the Veteran was in receipt of or entitled to receive (or but for the receipt of retired or retirement pay was entitled to receive) compensation at the time of death for a service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or (3) the veteran was a former POW and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318. Regulations provide that the term "entitled to receive" means that the veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied: (1) the veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or (2) additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively. See 38 C.F.R. § 3.22(b); see also Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009). In this case, service connection was not in effect for any condition at the time of the Veteran's death in 2011. The Veteran's claims of entitlement to service connection for non-Hodgkin's lymphoma, chronic obstructive pulmonary disease, diabetes mellitus type II, and hepatitis C were denied in a September 2002 rating decision. Although he initiated an appeal, he did not perfect it via submission of a timely VA Form 9, and new and material evidence was not received within the remainder of the appeal period. Although the appellant's representative asserts that she and the Veteran filed and submitted all necessary documentation regarding his appeal and that a county veterans service office lost the Veteran's paperwork, this statement, standing alone, is not the type of clear evidence to the contrary needed to rebut the presumption of administrative regularity. See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S. Ct. 1 (1926); see also Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) (noting that "Government officials are presumed to carry out their duties in good faith and proof to the contrary must be almost irrefutable to overcome that presumption.") Therefore, the September 2002 decision became final. See 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran's claims for service connection for posttraumatic stress disorder and neuropathy were denied in an unappealed September 2003 rating decision. The Veteran was notified of the September 2003 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the September 2003 decision also became final. Id. Thus, a permanent and total service-connected disability evaluation was not established for a period of 10 or more years immediately preceding the Veteran's death. Neither the Veteran (during his lifetime) nor the appellant has raised a motion alleging clear and unmistakable error with respect to any final rating decision in the record. In this regard, the Board emphasizes that at the time of the 2002 and 2003 rating decisions, the Department of Defense had confirmed that herbicide agents, including Agent Orange, were used near the Korean demilitarized zone (DMZ) from April 1968 through July 1969, which was prior to the Veteran's Korean service beginning in 1970. A more recent regulatory revision stating that a veteran who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides known to have been applied during that period, is presumed to have been exposed during such service to an herbicide agent, became effective on February 24, 2011, and therefore was not applicable at the time of the 2002 and 2003 rating decisions. 38 C.F.R. § 3.307 (a)(6)(iv); 76 Fed. Reg. 4245 (Jan. 25, 2011). There are no additional service department records that were not previously considered by VA at the time of the rating decisions. The appellant does not assert, and the record does not reflect, that the Veteran was a prisoner of war. Accordingly, for reasons outlined above, the appellant is not entitled to DIC pursuant to 38 U.S.C. § 1318 as a matter of law. As the disposition of this claim is based on the law, not the facts of the case this claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to DIC under 38 U.S.C. § 1318 is denied. REMAND The appellant seeks to establish service connection for the cause of the Veteran's death. She asserts that the Veteran's death is related to in-service exposure to herbicide agents. Specifically, she maintains that his military occupational specialty (MOS) as a medic took him to the Korean DMZ, where he was exposed to herbicide agents while stationed in Korea. See December 2016 Board Hearing Transcript at 6. In this case, the Veteran's amended death certificate reflects that he died in January 2011 and that the immediate cause of death was congestive heart failure, due to aspiration pneumonia, due to multifactorial metabolic encephalopathy, due to respiratory acidosis. Here, the crux of this issue is whether the Veteran was exposed to herbicide agents while stationed in Korea, due to close proximity to the DMZ. The Veteran's service personnel records reflect his MOS was medical specialist and that he was stationed in Korea from November 1970 to December 1971. Thus, he served within the required presumptive timeframe noted above. Additionally, he was assigned to the HHB 7th Battalion, 5th Artillery in November 1970, and then to the HHB 6th Battalion, 44th Artillery in June 1971. With respect to the issue of whether the Veteran was near the DMZ during service, a September 2015 response from the Defense Personnel Records Information Retrieval System (DPRIS) reflects a determination that there are no records or history that document any specific duties performed by members of HHB 6th Battalion, 44th Artillery along the DMZ. However, the Board notes the DPRIS search request was limited from July 1971 to August 1971, and only searched HHB 6th Battalion, 44th Artillery. It did not search the entire period the Veteran served in Korea or his duty assignments while in the HHB 7th Battalion, 5th Artillery. Thus, on remand, the AOJ should seek confirmation from the United States Joint Services Records Research Center (JSRRC) for verification of the Veteran's exposure to herbicide agents, to include his proximity to the DMZ for his entire period of service in Korea. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (VA's duty to assist is not bound by the JSRRC's 60-day limitation for stressor verification requests, and the fact that multiple records searches would burden JSRRC employees does not mean that those efforts would be "futile."). Accordingly, the case is REMANDED for the following action: 1. Conduct development for verification of the Veteran's exposure to herbicide agents for the entire period that the Veteran was stationed in Korea between November 1970 and August 1971, to include whether his units, HHB 7th Battalion, 5th Artillery and HHB 6th Battalion, 44th Artillery, may reasonably be found to have involved travel to the DMZ or in close proximity. 2. Then, after taking any additional development deemed necessary, readjudicate the issue on appeal. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs