Citation Nr: A21019248 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 210928-188484 DATE: December 2, 2021 ORDER Service connection for multiple myeloma is denied. FINDING OF FACT The Veteran is not presumed to have been exposed to herbicide agents during his active service; actual in-service exposure to herbicide agents has not been shown; and the preponderance of the evidence is against finding that the Veteran's multiple myeloma, began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria to establish service connection for multiple myeloma have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1952 to October 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2021 Appeals Modernization Act (AMA) rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his September 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for multiple myeloma The Veteran has filed a claim for multiple myeloma. He has, however, made no specific allegations as to why he believes that his multiple myeloma is related to military service. The record shows that in a July 2007 DRO hearing, the Veteran testified that he served in the Korean DMZ. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). A claimant who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a claimant was exposed to an herbicide agent during active service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The disease must have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii) (2017). Multiple myeloma is one of the presumptive diseases. VA regulations also provide that a claimant 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 herbicide agents 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 claimant was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). If these statutory presumptions are not met, a claimant is not precluded from establishing service connection with proof of actual direct causation. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The benefit of the doubt rule provides that a claimant will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, a claimant prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The August 2021 rating decision on appeal included a favorable finding of a current diagnosis of multiple myeloma. This finding is binding on the Board, and the analysis below is limited to whether there is any in service event, disease, or injury related to the Veteran's current disability. The Veteran's official service record does not show that he served in Vietnam and the Veteran does not contend otherwise. Rather, he only testified that he served in Korea "DMZ". See July 2007 Hearing. The Veteran's service personnel record shows that he served in the U.S. Army from December 1952 to October 1954. Herbicide agent exposure during service is not presumed in this case. For the presumption to apply, he had to serve in Korea at some point from April 1, 1968 to August 31, 1971. Accordingly, because there is no objective evidence that the Veteran served in or near the Korean DMZ during the requisite time periods, he is not presumptively exposed to herbicide agents. Although the presumption for herbicide exposure does not apply, the Veteran may still seek to prove herbicide exposure on a facts-found basis. In this case, however, he has not provided evidence showing that he was exposed to herbicides or any other chemical during service. The Board concludes that while the Veteran has a current diagnosis of multiple myeloma, the preponderance of the evidence weighs against finding that his multiple myeloma began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records do not document any complaints, diagnosis, or treatment pertaining to multiple myeloma. On separation examination in October 1954, no pertinent abnormalities were found. There are no records showing multiple myeloma dated from within one year of discharge. The Veteran underwent a VA examination in May 2021. The examiner confirmed the diagnosis of multiple myeloma with an onset in April 2013. He reported that he was diagnosed with multiple myeloma in 2013 when he was noted to have anemia, elevated serum protein levels and kidney dysfunction. The examiner noted ongoing treatment with chemotherapy. The examiner opined that it was less likely than not that the Veteran's multiple myeloma was incurred in or caused by his military service. The rationale provided was that the Veteran was in active duty as an engineer for a transportation department during the Korean War from 1952-54. His multiple myeloma diagnosis did not occur until 2013. There is no indication within his military service records of multiple myeloma. The examiner added that additional consideration was given to the possibility of an environmental exposure while in the military service that may precipitate multiple myeloma, including possibly small risk factors such as radiation, petroleum, organic solvents, benzene, herbicides, and pesticides. From review of available military records, the examiner found no excessive or prolonged exposure to any of these possible risk factors for multiple myeloma. The Board finds the May 2021 medical opinion is probative because it is based on an accurate medical history and provides explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board accepts the examiner's opinion as probative evidence that the Veteran's multiple myeloma was not related to the Veteran's active service, to include environmental exposure. The Board acknowledges the Veteran's belief that his multiple myeloma is related to an in-service injury, event, or disease. However, other than filing the claim, the Veteran has made no specific allegations as to how or why he believes his multiple myeloma is related to service. He has at no time explained a theory by which his disability might be service connected. Moreover, there is no competent medical evidence linking the Veteran's multiple myeloma to service, nor is there any evidence contradicting the opinion of the May 2021 VA examiner. In summary, the preponderance of the evidence is against finding that the Veteran's multiple myeloma began during his active service, or is otherwise related to an in-service event, injury, or disease. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for multiple myeloma. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J. GALLAGHER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, Associate 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.