Citation Nr: 20005243 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 17-02 818 DATE: January 23, 2020 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to February 1968. He died in September 2014. The appellant is the Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2015 rating decision of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in August 2019. The Veteran passed away on September 5, 2014, from metastatic lung cancer. At the time of his death, the Veteran was not service connected for any disability. At the August 2019 Board hearing, the appellant and her representative indicated that the Veteran was exposed to Agent Orange in service while stationed near the Korean Demilitarized Zone (DMZ), and asserted that this exposure caused or contributed to the Veteran’s post-service diagnosis of lung cancer. Of note, on July 1, 2019, the Secretary of Veterans Affairs directed the Board to stay adjudication of all cases which may have been affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), until the effective date of the Act, January 1, 2020. The Act created new statutory requirements for the adjudications of certain claims based on veterans’ herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. The issue listed on appeal could be have been affected by the Act. In a November 2019 correspondence, the appellant was notified of the stay and was informed that once the stay was lifted, adjudication of case would resume. As the stay has been lifted, the Board again has jurisdiction to adjudicate the merits of the appeal. The Board notes that the Veteran’s service records indicate that his military occupational specialty was infantry fire crew and that he served in Korea from January 1967 to February 1968. Post-service treatment records show that the Veteran was diagnosed with lung cancer in August 2014. A medical note dated in April 2016 shows that the private doctor noted that the Veteran had a biopsy in August 2014 which showed that the Veteran had a very aggressive form of lung cancer. It was noted that the Veteran had been a smoker, but had stopped 8 years prior to being diagnosed. The private doctor stated that the Veteran had served in Korea, where he was exposed to dioxin which could have contributed to his lung cancer. Governing law provides for presumptive service connection based on exposure to herbicides/Agent Orange in service for certain enumerated diseases (including lung cancer). A Veteran who served on land in Vietnam is presumed to have had such exposure. VA has extended this presumption to Veterans who served in other areas where Agent Orange is known to have been used. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309. The Veteran here is not shown to have served in Vietnam, and it is not asserted otherwise. Rather, the appellant contends that the Veteran’s lung cancer stems from his exposure to Agent Orange while he was stationed in Korea. Effective February 24, 2011, VA amended its regulations (38 C.F.R. § 3.307) to extend a presumption of herbicide exposure to certain Veterans who served in Korea. 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, 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. Although the Veteran did not serve in Vietnam and his service dates in Korea are not within April 1, 1968, and August 31, 1971, the Board notes that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board must not only determine whether the Veteran was exposed to herbicides, but also must determine whether his disability was the result of active service under 38 U.S.C. § 1110 and 38 C.F.R. § 3.303(d), to include as due to possible exposure to Agent Orange while stationed in Korea. As such, a request must be sent to the Joint Services Records Research Center (JSRRC) or other appropriate authority for verification of the Veteran’s asserted exposure Agent Orange exposure in Korea. The Veteran’s service records show that he served in the HHC 2nd Bn 31st Infantry, 7th Infantry Division, while stationed in Korea from January 1967 to February 1968. If the JSSRC or other appropriate authority determines that there is insufficient information to verify the Veteran’s claimed exposure, a formal finding should be made. The matters are REMANDED for the following action: 1. A request must be sent to the JSRRC or other appropriate authority for verification of the Veteran’s possible Agent Orange exposure in Korea from January 1967 to February 1968 in the HHC 2nd Bn 31st Infantry, 7th Infantry Division. If the JSRRC or other authority determines that there is insufficient information to verify the Veteran’s claimed exposure, a formal finding should be made in this regard and associated with the record. 2. If and only if exposure to Agent Orange is conceded, refer the Veteran’s claims folder for a medical opinion regarding whether it is at least as likely as not (a 50 percent or greater probability) that any exposure to Agent Orange in service could have resulted in the development of the Veteran’s lung cancer. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.