Citation Nr: 21065044 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-32 421 DATE: October 22, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is denied. Entitlement to dependency and indemnity compensation (DIC) is denied. FINDINGS OF FACT 1. The Veteran died in January 1986 from multiple myeloma. 2. Although the Veteran was stationed at Camp Casey in South Korea, he is not entitled to a presumption of herbicide exposure during such service, and actual in-service herbicide exposure is not persuasively shown. 3. The Veteran's death was not the result of military service or a service-connected disability. 4. The Veteran was not in receipt of total service-connected disability rating for ten years at the time of his death, he was not a former prisoner of war (POW), and he died more than ten years after separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the Veteran's cause of death have not been met. 38 U.S.C. § § 1110, 1310, 5107(b) (2012); 38 C.F.R. § § 3.102, 3.303, 3.312 (2019). 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1968 to May 1970 as an infantryman with service in the Republic of Korea from April 1969 to May 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran passed away on January [REDACTED], 1986. Originally, the Appellant's claim for death and indemnity compensation based on a service-connected disability was denied. A request to reopen was received on June 25, 2015. A video conference hearing took place in August 2019 before the undersigned, a transcript is available in the record. Cause of Death To establish entitlement to service connection for the cause of a veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2019). The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312(c)(1). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Service Connection Generally, to establish service connection 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 incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may be granted on a presumptive basis based on herbicide exposure. A veteran who, during active military service between April 1, 1968, and August 31, 1971, served in a unit that operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, as determined by the Department of Defense (DOD), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iv). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). 1. Entitlement to service connection for the Veteran's cause of death Service treatment records are silent for any symptoms, diagnoses, or treatment for early manifestations of myeloma. Medical records show the Veteran was diagnosed with multiple myeloma in March 1984 at thirty-five years of age. These clinical assessments note a history of hepatitis as a child and a shrapnel wound while serving in Vietnam but no other reference to Army service. As noted below, the clinical notation of service in Vietnam is not supported by the service records. In September 2002, the Appellant drafted a lay statement claiming the deceased-Veteran served in the Republic of Vietnam. She reported he passed away in 1986 after a struggle with multiple myeloma and pointed out the disease was rare, typically developed in people over sixty-five years old, and the Veteran did not have a familial history of the disease. In December 2002, the Appellant said the Veteran was receiving service-connected benefits at the time of his death. The March 2003 rating decision denied service connection for cause of death because the evidence did not support that the Veteran was exposed to herbicides during service, that his cause of death was not related to service, and because he did not have a claim pending at the time of his death. A written statement from August 2015 stated that the Veteran served in the Republic of Korea from April 1969 to May 1970 and that he served in the DMZ. The Appellant noted the dates eligible for presumptive exposure and the other requirements for that presumption to take effect. Once again, in September 2015, service connection for cause of death was denied. The RO conceded multiple myeloma as the cause of death and that the Veteran did serve in Korea during the presumptive period. However, his unit was not one that was assigned to the DMZ and therefore presumed to have been exposed to herbicides. Part of his military personnel record, submitted in June 2016, shows the Veteran was at one point stationed at Camp Casey assigned to the Headquarters and Headquarters Company of the 7th Infantry Division. From May to December 1969, his occupation was infantryman and for the rest of the tour of duty he was assigned as a member of the honor guard. The Veteran was awarded an expeditionary medal for Korean service but not a Vietnam Service Medal or any combat awards. There are no notations of service in Vietnam. Defense Personnel Records Information and Retrieval System (DPRIS) submitted their findings in April 2017. DPRIS stated: We reviewed the 1970 unit history submitted by the Headquarters & Headquarters Company, 7th Infantry Division (HHC, 7th Inf Div.), and the 1970 Chronology submitted by the 8th United States Army. The records document that the unit was located at Camp Casey, Tongduchon-Ni, South Korea. The records do not document the use, storage, spraying, or transportation of tactical herbicides to include Agent Orange. In addition, the records do not document any specific duties performed by the HHC, 7th Inf Div. unit members along the Demilitarized Zone (DMZ). The Appellant submitted a statement in June 2017 saying the Veteran was stationed at Camp Casey, which is near the DMZ, and that official reports confirm the use of AO at the DMZ in 1968 and 1969. She further argues that multiple myeloma is rare for people under the age of sixty and that the Veteran was diagnosed at the age of thirty-five. She noted the Veteran believed his cancer and other health issues were caused by herbicide exposure and that he filled out an AO class action form and said he remembers herbicides being sprayed in "Known areas of jungle" prior to his unit advancing. A copy of the Agent Orange Claim Form was received in June 2017. In it, the Veteran wrote that he served in the U.S. Army Honor Guard from August 1969 to May 1971 and was in Saigon and Bien Hoa between December 1969 and August 1970. He said he was "frequently" in areas sprayed by AO. These areas were "Known areas of jungle and dense foliage were sprayed prior to our unit advancing." His belief was multiple myeloma was caused by this exposure. At the August 2019 hearing, the Appellant contended that VA incorrectly believed the Veteran was stationed in Seoul and not Camp Casey. The Appellant testified that the Veteran once told her that prior to his unit advancing there was a unit that went before and sprayed the foliage. The representative said that, during his time in Korea, Camp Casey was considered part of the DMZ or near the DMZ. They contend that aerial spraying of herbicides along the DMZ could have drifted and documents show at least a two-kilometer drift but "there's no way of knowing for sure what areas were truly covered." The Appellant argues that there are three prior Board decisions either granting exposure for Veteran's stationed at Camp Casey or speaking favorably about Camp Casey being in the DMZ. She also said the Veteran may have been a Military Police Officer. In closing, the representative argued that the Veteran was at Camp Casey and that he had no other risk factors for multiple myeloma other than exposure to AO. There are no records supporting that the Veteran set foot in the Republic of Vietnam. The original claim for service-connected cause of death relied on lay statements from the Veteran that he was in Vietnam, but this is not the case. In fact, his AO Claim Form says he served in Vietnam during the same period that records prove he was stationed in Korea. Any statements about the Veteran being in the Republic of Vietnam are not credible. It has been shown that the Veteran was stationed, at some point, at Camp Casey. It is also conceded that his cause of death was multiple myeloma. However, Camp Casey is not in the DMZ and records show the Veteran's unit never set foot in the DMZ nor would his duties assigned to a division headquarters company involve duties at the DMZ. The lay statements from the Appellant about what the Veteran told her that before his unit advanced there was a unit that sprayed the foliage are not credible. The Veteran's written statement about witnessing spraying was in tandem with incorrect statements about service in Vietnam. Statements about his unit advancing in South Korea behind a unit that sprayed the foliage are actually credited to written testimony about Vietnam. Moreover, the DMZ was not a "jungle" environment. Because the record unequivocally shows that the Veteran did not serve in Vietnam, and the Veteran explicitly reported service in Vietnam in support of his claim (see Agent Orange Claim Form), the Board finds the Veteran not credible. Furthermore, The Veteran's recounts of a unit spraying foliage and witnessing Agent Orange used in foliage are not credible. The Veteran's recounts are inconsistent with the other evidence, namely the DPRIS finding. Accordingly, the information the Veteran reported to the Appellant in support of his claim is also deemed not credible. The arguments that the Veteran did not have additional risk factors for multiple myeloma were considered. But to grant service connection for multiple myeloma would be speculation. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Appellant is not competent to diagnose the cause of the Veteran's multiple myeloma and has provided no medical evidence linking multiple myeloma to herbicide exposure. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). At the hearing, the argument was the Veteran's stationing at Camp Casey meant he was likely exposed to drifting herbicides from aerial spraying. The argument is weak as there is admission to not knowing how far the drift went or any evidence showing that Camp Casey fell within that drift zone. Furthermore, reports about aerial spraying found the drift was only two-kilometers from the DMZ and there is nothing from VA, the Department of Defense, or any other reputable source that locates Camp Casey within those two-kilometers or within the drift zone. Camp Casey is about 15-20 miles south of the DMZ. The Board emphasizes that the term "near" is subjective. It is puzzling that the appellant's brief acknowledged that Camp Casey was at least 15 miles from the DMZ and that the parties to the JMR found that the geographic distance from Camp Casey to the DMZ of 15-20 miles combined with the Department of Defense information above required an explanation of why Camp Casey was not "near" the DMZ. In this instance, there is no indication whatsoever from his DD-214, service personnel records, or the DPRIS finding that his duties took place on or near the DMZ. The Board finds that Camp Casey, which is about 15-20 miles south of the DMZ, is not considered "near" for the purposes of 38 C.F.R. § 3.307(a)(6)(iv). The Board has considered the prior Board decisions submitted by the Appellant. Prior Board decisions are not precedential or binding on other veterans. 38 C.F.R. § 20.1303; see also Lynch v. Gober, 11 Vet. App. 22, 27 (1997), vacated on other grounds sub nom. Lynch v. West, 178 F.3d 1312 (Fed. Cir. 1998); Hillyard v. Derwinski, 1 Vet. App. 349, 351 (1999). Prior decisions in other appeals "may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law." See 38 C.F.R. § 20.1303; see also Percy v. Shinseki, 23 Vet. App. 37, 44 (2009) ("The word may clearly connote discretion") (citing Fogerty v. Fantasy Inc., 510 U.S. 517, 533 (1994)); Hudgens v. Gibson, 26 Vet. App. 558, 562 at n.5 (2014) (citing 57 Fed. Reg. 4088, 4103 (Feb. 3, 1992) "[U]niformity will be achieved on important questions through precedent decisions of the United States Court of Veterans Appeals."). The Appellant, in this case, points out in the prior Board decisions that Agent Orange was used in the area around the DMZ; this, however, is not in dispute. As explained above, it is conceded by VA that herbicide agents were used between April 1968 and July 1969 along a strip of land 151 miles long and up to 350 yards wide along the southern edge of the DMZ north of the civilian control line. In addition, particular units have been acknowledged by DoD and VA as having performed missions near the DMZ during the period herbicides were used and are considered to be "in or near" the DMZ. The Appellant does not allege that the Veteran was associated with a unit, acknowledged by DoD and VA, as having performed missions "in or near" the DMZ, but rather as having duties that took him to the DMZ; this alone is not enough to meet the requirements of 38 C.F.R. § 3.307(a)(6)(iv), as explained above. However, the Veterans duties at a headquarters is not consistent with duties patrolling or providing logistical support to units at the DMZ. The Board finds that the record includes no competent, persuasive evidence of actual herbicide exposure so as to invoke the presumptive procedures of 38 C.F.R. §§ 3.307 and 3.309 for his demonstrated ischemic heart disease. As indicated above, despite the Appellant's assertion that the Veteran was exposed to herbicides, JSRRC review indicates that his infantry unit was not exposed to herbicides, to include Agent Orange. Also, the infantry records did not document any duties performed by members along the DMZ. Therefore, the Board affords the prior Board decisions no probative weight in the current appeal. Service connection for cause of death is not warranted on a presumptive basis. The Veteran does not meet the presumption for AO exposure based on the findings from DPRIS. Lay statements have been deemed not credible as they begin with incorrect information and then later supply contradictory information. The Veteran's military occupational specialty (MOS) was Infantryman and not Military Police Officer a job that may place him along the fences of the DMZ. Finally, Camp Casey is 15-20 miles from but not within or so near the DMZ that herbicide agents could expose personnel at headquarters at Camp Casey; and records do not reflect it was within any drift zone. Considering the pertinent evidence in light of the governing legal authority, the Board also finds that service connection for cause of death is not warranted on a direct basis. The Veteran was not diagnosed with multiple myeloma until 1984, 14 years following his discharge. The evidence of record does not support, and the Veteran and the Appellant do not contend that myeloma began or manifested during the Veteran's service. While the Veteran had multiple myeloma, the evidence of record does not support a finding that multiple myeloma began in, or is other medically related to, the Veteran's active service. Therefore, entitlement to service connection for cause of death is denied. Death and Indemnity Compensation A surviving spouse may establish entitlement to DIC in the same manner as if the Veteran's death were service connected where it is shown that the Veteran's death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year . 2. Entitlement to dependency and indemnity compensation (DIC) The Veteran was not receiving compensation for any service-connected disabilities at the time of his death and was not rated as totally disabled for non-service-connected pension purposes. The DIC claim is therefore denied as a matter of law. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.