Citation Nr: 18144933 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-30 976 DATE: October 25, 2018 ORDER Service connection for non-Hodgkin’s lymphoma, the cause of the Veteran’s death, is granted. FINDINGS OF FACT 1. The evidence shows that the Veteran served in the Republic of Korea (Korea) from March 1971 to January 1972. 2. The evidence is in equipoise as to whether the Veteran served along the Demilitarized Zone (DMZ) while he was stationed in Korea; therefore, the benefit of the doubt is granted on this factual matter. 3. The Veteran is presumed to have been exposed to herbicide agents during service in Korea. 4. The Veteran died as a result of non-Hodgkin’s lymphoma. CONCLUSION OF LAW Resolving reasonable doubt in the Appellant’s favor, the criteria for entitlement to service connection for non-Hodgkin’s lymphoma, the cause of the Veteran’s death, have been met. 38 U.S.C. §§ 1101, 1110, 1116, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(6)(iv), 3.309(e) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant is the surviving spouse of a Veteran who served on active duty in the United States Army from March 1970 to January 1972, to include service in Korea. The Veteran died in September 2011. When any veteran dies from a service-connected disability, the veteran’s surviving spouse is entitled to Dependency and Indemnity Compensation (DIC). 38 U.S.C. § 1310. A death will be considered to result from a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Therefore, service connection for the cause of a veteran’s death may be demonstrated by showing that the veteran’s death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A 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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Generally, in order to prove service connection, a veteran must show: (1) a present disability; (2) an 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, VA regulations provide that certain diseases associated with exposure to herbicide agents, including non-Hodgkin’s lymphoma, may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. 3.307(a)(6) are met. 38 C.F.R. § 3.309. Effective February 24, 2011, VA amended its regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea. See 76 Fed. Reg. 4245-01 (Jan. 25, 2011). Specifically, a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an 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)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309(e) are applicable. In deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Appellant contends that during the Veteran’s service in Korea, he was exposed to herbicide agents which led eventually to his diagnosis of non-Hodgkin’s lymphoma and his ultimate death. The Veteran died of non-Hodgkin’s lymphoma in September 2011. His service treatment records do not show that he was diagnosed with the condition in service or within one year of separation, nor was he service connected for any disabilities during his lifetime. The Veteran’s military personnel records confirm his service in Korea from March 1971 to January 1972 and that he was stationed with the Headquarters Company of the 3rd Brigade of the 2nd Infantry Division, but they do not explicitly place him in a specific unit that was known to have served within the Korean DMZ. His military occupational specialty (MOS) was armor crewman, wheeled vehicle repairman, and senior wheeled vehicle repairman. In January 2014, the Appellant provided lay information in support of her claim in the form of letters from the Veteran, pictures from his service, and her own statements. The letters detail his day-to-day activities in Korea, describing how he drove vehicles moderate distances in and around several camps near the DMZ including Camp Greaves, Camp Howze, and Camp Red Cloud. He specifically noted he was “on the DMZ” during one route. His pictures confirm he was at Camp Howze and Camp Casey. The Appellant stated that during his service, the Veteran mentioned by letter and telephone conversations that his unit would travel during overnight convoys to the DMZ, camping there for anywhere from one to seven days. She further noted that he mentioned to her visiting Camp Greaves, Camp Casey, Camp Hovey, Camp Howze, and Camp Red Cloud. In January 2016, an administrative memorandum declared a finding of a lack of sufficient information to submit to the Joint Services Records Research Center (JSRRC) in support of a Korea DMZ herbicide agent exposure claim. It was noted that without a date range or further details regarding the Veteran’s exposure to herbicide agents in Korea, corroborating evidence was unavailable. The Board finds, however, that although the Veteran’s specific organization and station of assignment are not listed by the DoD as stationed in or along the DMZ during the relevant time frame, it is clear from his contemporaneous statements that his duties took him across a wide area near the DMZ, whether or not he was stationed at a DoD-confirmed location of exposure. The Board finds that when considering the Veteran’s MOS, his unit’s proximity to the DMZ, the statements supporting the claim from himself and his wife, and the lack of evidence provided by the DoD contradicting the claim, there is a reasonable balance of evidence from which to conclude the Veteran was at the DMZ during his service in Korea. Accordingly, the Veteran is presumed to have been exposed to herbicide agents in service. Because non-Hodgkin’s lymphoma qualifies for presumptive service connection based on herbicide agent exposure, service connection on a presumptive basis is warranted. As the Veteran died as a result of his disability, service connection for his cause of death is established. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel