Citation Nr: 21071350 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-16 044 DATE: November 30, 2021 ORDER Entitlement to dependent indemnity compensation (DIC) is denied. Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. Service connection was not in effect for any disability at the time of the Veteran's death. 2. The Veteran was not a former prisoner of war (POW). 3. The Veteran served in the Republic of Korea (ROK) during his active service. 4. The weight of the evidence of record is against a finding that the Veteran was exposed to herbicide agents during his service in ROK. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 2. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1970 to April 1973. He died in May 2008, and the appellant is his surviving spouse. In March 2020 she appeared at a Board hearing before the undersigned via video conference. See 03/13/2020 Hearing Testimony. On initial review of this case the Board remanded it to the Agency of Original Jurisdiction (AOJ) for additional development. As discussed further below, the Board finds substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to DIC is denied. Legal Requirements 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 immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). Discussion The Veteran died in May 2008. See 03/11/2020 Death Certificate. Service connection was not in effect for any disability at the time of his death, and he was not a former prisoner of war. Hence, there is no legal basis for entitlement to DIC under 38 U.S.C. § 1318. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, the claim for DIC under 38 U.S.C. § 1318 is denied as a matter of law. 2. Entitlement to service connection for the cause of the Veteran's death is denied. The Veteran's Death Certificate reflects that the cause of his death was multiple myeloma/plasmacytoma. See 03/11/2020 Death Certificate. The appellant's primary assertion is that the Veteran was exposed to herbicide agents while he was assigned to Camp Casey, ROK. Board finds that the preponderance of the evidence is against the assertion. Legal Requirements Service connection for the cause of a veteran's death requires that a service-connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312. When it is determined that a Veteran's death was service connected, his surviving spouse is generally entitled to DIC. See 38 U.S.C. § 101. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). If a veteran was exposed to an herbicide agent during active service, certain diseases, including multiple myeloma, will be service connected. These diseases need only manifest to a degree of at least 10 percent at any time after service, with the exception of chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy, which must manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(ii). VA laws and regulations provide that if a Veteran was exposed to a herbicide agent during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). The presumption is rebuttable. 38 U.S.C. § 1113. 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 Demilitarized Zone (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). The DMZ cuts the Korean Peninsula roughly in half, following the geographic 38th parallel north latitude and is approximately 155 miles long and 2.5 miles wide. The DoD has advised that herbicides were not applied within the DMZ but were applied in some adjacent areas. Specifically, DoD has reported that herbicides were applied 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. The herbicide agents were applied through hand spraying and hand distribution of pelletized herbicides; there was no aerial spraying. DoD also has provided VA a list of the military units that are currently known to have operated in that area during the period that herbicides were applied. See 74 Fed. Reg. 36640, 36641. Discussion As already noted, the Veteran had a diagnosed disease that is deemed to be associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Hence, the primary issue for the Board to decide is whether he more likely than not was exposed to herbicide agents. VA's Adjudication Procedure Manual (M21-1MR) contains a list of service units that have been recognized by the DoD as having served in areas along the Korean DMZ. Exposure to herbicides is to be conceded for Veterans who allege service along the DMZ in Korea and were assigned to certain units between April 1968 and July 1969. See VA Adjudication Procedures Manual "Live Manual" (M21-1) part IV, subpt. ii, ch. 1, sec. H.4. Recognition of being exposed to herbicides "in or near" the DMZ, for an individual veteran, is based on service in one of the particular units acknowledged by DoD and VA as having performed missions near the DMZ during the period herbicides were used. These units were assigned or rotated to areas near the DMZ during that time period. These included infantry, armor, and artillery units. Per 38 C.F.R. § 3.307(a)(6)(iv), a regulatory presumptive period of April 1, 1968, to August 31, 1971, is in effect to account for residual exposure of herbicide agents. See 76 Fed. Reg. 4245 (Jan. 25, 2011). As noted in the Board's remand, the Board reviewed the evidence of record and determined that the Veteran served in ROK from March 1971 to March 1972, and that his unit of assigment was A Company, 2nd S&T Bn. Although the Veteran served in ROK during the necessary dates, he did not serve at or near the geographic area where his exposure to herbicide agents is presumed, as he was based at Camp Casey his entire tour. However, service connection may still be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's military occupational specialty was vehicle maintenance. The appellant, through her representative, asserts that the Veteran's multiple myeloma was due to exposure to herbicide agents that were used at or near the DMZ. The specific means of exposure asserted by the appellant are the military vehicles that were used to spray herbicide agents or other military vehicles that operated at the DMZ and, in turn, were worked on by the Veteran. See 03/13/2020 Hearing Transcript. In support of her claim, the appellant has submitted excerpts from unit histories and statements from servicemen who state that they were personally involved in the application of herbicide agents in ROK. See, e.g., 03/11/2020 Buddy/Lay, 1st and 2nd Entries. Neither statement reflects that the soldier knew the Veteran or that they ever were based at Camp Casey. A retired noncommissioned officer, G.L.G. states that he was at Camp Casey during the same time period that the Veteran was there. Mr. G states that the Veteran was a motor pool dispatcher and did not work for him, but he had daily contact with the Veteran. Whenever a truck or a driver was needed, he contacted the Veteran. See 10/14/2020 Third Party Correspondence. In a separate email in response to the appellant, Mr. G stated that the Veteran worked on trucks and, when needed, did all his supervisor told him to do. See 10/09/2020 Correspondence, P. 9. The Board remand included a directive that the AOJ seek to determine if the Veteran's duties included being at or near the perimeter of Camp Casey. In the most recent written submission on behalf of the Veteran, his representative expressed confusion with the Board remand, as the appellant has never asserted that the Veteran was exposed to herbicide agents at the Camp Casey perimeter. See 10/19/2021 Third Party Correspondence. The Board included that directive because one of the lay statements notes that the Camp Casey perimeter was sprayed with herbicide agents. See 03/11/2020 Buddy/Lay, 4th Entry. There is no evidence that his duties included working on the Camp Casey perimeter. In compliance with the remand, the AOJ request research of relevant unit histories and other documents to seek verification that the Veteran worked on military vehicles that may have been contaminated with an herbicide agent. See 07/30/2020 Deferred. The response noted that a search of the relevant sources failed to verify the appellant's assertions. See 09/01/2020 Other, 1st Entry. In other assertions, the representative asserts that the Board must consider the lay evidence of record, and that the evidence of record is more than adequate to show that it is at least as likely as not that the Veteran was exposed to herbicide agents that he encountered on military trucks and tanks, etc., that had become contaminated with herbicide agents. The Board agrees with the representative that the lay evidence of record must be considered, see 38 C.F.R. § 3.159(a)(2), and the Board has done so. The Board also agrees that the evidence of record shows that the Veteran performed duty as a mechanic while he was based in ROK. The Board finds further, however, that the link between the appellant's assertions and a plausible inference is based on speculation rather than evidence. The gist of the appellant's case is that because various vehicles from Camp Casey may have come into contact with herbicide agents, then it must be inferred that the Veteran in turn was exposed by his duties as a mechanic. As noted earlier, research and review of official unit documents did not reveal official verification that Camp Casey vehicles and equipment encountered and became contaminated with herbicide agents. The appellant seeks to show that fact via the statements of two persons who served in ROK. In a February 2020 statement, J.J.F., states that he was assigned to a chemical section from April 1969 to September 1970. As a staff sergeant, he supervised the spraying of defoliants within the DMZ, just south of the DMZ, and north of the Imjin River. He then details the composition of the herbicide agent and how it was sprayed, primarily via handheld hoses because they worked in a no-fly zone. Mr. F states that the daily prevailing winds would cause he, his troops, and the equipment to become soaked. He stated further that vehicles driven by infantry units from Camp Casey and other camps were often caught in the overspray and wind-driven drift. During wet weather vehicles would be coated with mud, and during dry weather they would be covered with dust from the dirt roads. Upon return to their base camp, Camp Casey included, would be washed, inspected for necessary repairs, repaired if needed, fueled and then released for further use by the motor pool noncommissioned officer or officer. Based on that experience, Mr. F believes that anyone who rode on an uncleaned vehicle that had been in a sprayed area or who washed a sprayed vehicle was more likely than not exposed to herbicide agents. Every base motor pool had a designated vehicle wash area which, over time, accumulated large quantities of herbicide agents. Hence, he opined that it was more likely than not that the Veteran was exposed to herbicide agents and an inorganic arsenic that also was used during his tour at Camp Casey. See 03/11/2020 Buddy/Lay, 3rd Entry. The Board attaches no probative value to Mr. F's opinion that the Veteran's putative exposure caused him to develop multiple myeloma, as there is no evidence that Mr. F has medical training. See 38 C.F.R. § 3.159(a)(1). The remainder of his statement is in fact competent evidence that the Board must consider. D.K.R. served as a chemical officer in ROK from May 1969 to June 1970. He states that he was in charge of all defoliation operations north of the Imjin River. Mr. F assisted him, and he reinforced the information Mr. F included in his statement. Mr. R opined that it was not that the Veteran was exposed to herbicide agents by going to the DMZ, because he was never at the DMZ, but that the contaminated soils came to the Veteran. He was then exposed when he performed maintenance on them. The Board will not repeat all of the details, to include the motor pool wash areas, etc. Mr. R opined that any soldier who washed contaminated vehicles became contaminated from the back spray. He based his opinion in part on his experience working at a concrete plant when he was in college where he had to clean transport vehicles. He does, however, cite one experience where he observed a damaged vehicle being spray cleaned at another camp in Korea. In addition to having served as a chemical officer in ROK, he also cited over 45 years of experience with investigation and remediation of hazardous waste. Mr. R states that he has no doubt that the Veteran more likely than not was exposed to herbicide agents while performing his duties at Camp Casey. See 03/11/2020 Correspondence, 2nd Entry. Messrs. R and F statements clearly provide adequate qualifications for them to proffer their opinions, which are in fact competent. The issue, however, is whether they are due sufficient weight to support the most important part of their opinions, that is, that the Veteran was exposed to herbicide agents by his duties. Both Mr. F and Mr. R opined that the greatest potential for exposure was from washing vehicles and equipment that had picked up mud, etc., that was contaminated. The problem is that they infer that the Veteran performed those duties or that he was exposed to the designated wash area at Camp Casey. The Board finds that there is insufficient evidence for them to have made that inferential jump. The Board finds most noteworthy, Mr. G's statement. His statement reflects that, unlike Mr. F and Mr. R, he had actual daily contact with the Veteran at Camp Casey, and that he primarily was a dispatcher. It was in response to a follow-up email query from the appellant that he stated that, "if he worked in the motor pool," he worked on the trucks. Mr. G did not venture further, and he based that on the fact that the Veteran was a mechanic. See 10/9/2020 Correspondence, P. 9. Based on the above, the Board finds that the evidence is not approximately in equipoise. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). Instead, the Board finds that the weight of the evidence is against the claim. Hence, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.