Citation Nr: 20038061 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 14-33 835 DATE: June 3, 2020 ORDER Service connection for the cause of the Veteran’s death is denied. FINDING OF FACT The Veteran died of prostate cancer, a disease associated with herbicide exposure; he did not serve in Vietnam or Korea during the presumptive periods; the preponderance of the evidence is against a finding that he was exposed to herbicides during his active service in Korea; and there is no argument or indication that the cause of his death is otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1310, 5107; 38 C.F.R. §§ 3.103, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to June 1964; he died in July 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision. In March 2018, the appellant testified before the undersigned at a Travel Board hearing in Chicago, Illinois. In June 2018, the Board remanded this matter for additional development. Service connection for the cause of the Veteran’s death is denied. The appellant seeks service connection for the cause of the Veteran’s death. 11/23/2012, VA 21-534 Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child. The Veteran’s death certificate indicates that the cause of his death was prostate cancer with metastasis. 11/23/2012, Death Certificate. The appellant specifically asserts that the Veteran’s death is related to herbicide exposure during service near the Korean Demilitarized Zone (DMZ). 08/07/2013, NOD. There is no argument that the cause of the Veteran’s death is otherwise related to his military service. Prostate cancer is a disease associated with herbicide exposure and, as such, will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Thus, for the appellant to prevail, the evidence must simply show the Veteran was exposed to herbicides in service. Herbicide exposure may be presumed under certain circumstances. Specifically, veterans who, during their active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or in Korea as part of a unit that operated near the Korean DMZ (in an area where herbicide were known to have been applied) between April 1, 1968 and August 31, 1971, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Military records indicate that the Veteran served on active duty from September 1961 to June 1964. 11/11/2015, DD 214. Any service near the Korean DMZ during that period falls outside the presumptive time frame. Furthermore, there is no argument or indication that the Veteran served in Vietnam. 11/26/2018, Statement in Support of Claim (stating that, to the appellant’s knowledge, the Veteran did not serve in Vietnam). As such, service connection on a presumptive basis is not for consideration. Notwithstanding, service connection may still be established on a direct basis. In this regard, the question for the Board is whether the Veteran was exposed to herbicides in service. As the appellant has specifically asserted that the Veteran was exposed to herbicides in Korea, the Board will focus on any such service. Military personnel records indicate that the Veteran served in Korea from July 1962 to June 1964. 10/28/2018, Military Personnel Record, at 84. There, he was stationed with multiple U.S. Army Security Agency (USASA) units. Id. at 83. His military occupational specialty (MOS) was teletype operator. 11/11/2015, DD 214. In support of her claim, the appellant has submitted copies of letters sent by the Veteran to his parents during service. 11/26/2018, Correspondence. These letters provide some insight into the Veteran’s service. As relevant to the present claim, these letters establish that the Veteran was stationed in at least two locations that were near the Korean DMZ. In an undated letter, the Veteran indicated that he was assigned to the island of Kanghwa, in the Han River estuary, off the west coast of Korea in the Yellow Sea. He described this location as 5,400 yards from the DMZ. In another undated letter, the Veteran informed his parents that, for the last several weeks, he had been “all over the DMZ.” He explained that he had experienced multiple reassignments during that period. He mentioned that he was currently in a company, the main post of which was about six miles from the DMZ. These letters establish that the Veteran served near the Korean DMZ at different points between July 1962 and June 1964. They, however, do not establish that the Veteran was exposed to herbicides during that period. Significantly, the letters do not convey any information that can be construed as evidence that herbicides were used near any of the locations to which the Veteran was assigned, or that he was otherwise exposed to herbicides at any point during service. Rather, his letters suggest that he was confined to very specific locations. For instance, in his letter regarding service in Kanghwa island, the Veteran explained to his parents that his company was located in the island’s mountains and that a special vehicle was required to take him to the top of the mountain, where his post was located. The RO has made efforts to ascertain any information that can shed light on the Veteran’s service near the Korean DMZ, but these efforts have not resulted in any evidence that the Veteran was, or may have been, exposed to herbicides. Specifically, in a July 2019 letter, the historian for the US Army Intelligence and Security Command confirmed that the 508th USASA Group had operations on the island of Kangwha, in the Han River estuary. The historian, however, did not find any reference to herbicides. 07/08/2019, Military Personnel Record. As the RO has contacted a highly authoritative source regarding the history of the Veteran’s unit, and in the absence of any more detailed information regarding the asserted herbicide exposure, the Board finds that VA has fulfilled its duty to assist the appellant in the development of her claim. Any additional efforts to verify the asserted herbicide exposure is unlikely to result in a favorable outcome for the appellant and would only serve to delay adjudication of this matter. The appellant has indicated that herbicides were used in the Korean DMZ during the 1950s and 1960s. In support of this assertion, she has referenced unspecified literature, copies of which are not of record. 09/23/2014, Form 9; 03/21/2018, Hearing Transcript; 11/26/2018, Buddy/Lay Statement; see 38 U.S.C. § 5107(a) (stating that a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary). The Board acknowledges the appellant’s assertion that the Veteran may have been exposed to herbicide agents during service in Korea. Unfortunately, the preponderance of the evidence does not support such finding of fact. As summarized above, the evidence of record, to include the Veteran’s personal letters, contains no indication that the Veteran may have been exposed to herbicides during service near the Korean DMZ. VA has made efforts to verify the alleged herbicide exposure in service, but these efforts have not resulted in evidence favorable to the appellant. While the evidence establishes that the Veteran served near the Korean DMZ, this mere finding is not enough for a grant. There must also be evidence indicative that the Veteran was at least as likely as not exposed to herbicides. In the absence of such evidence, the Board finds that the preponderance of the evidence weighs against the claim and the appellant’s claim of service connection for the cause of the Veteran’s death is denied. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López, 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.