Citation Nr: 21005914 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-16 547 DATE: February 2, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran had herbicide agent exposure in service. 2. The Veteran’s death certificate identifies the immediate cause of death as myocardial infarction and identifies severe, severely stenosing atherosclerosis of the anterior descending and circumflex branches of the left coronary artery as an underlying cause. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1116B, 1310, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1966 to April 1969 and from October 1970 to October 1973. He served honorably in the U.S. Army, including service in Korea. The Board is thankful for his service to our country. Unfortunately, the Veteran died in December 1993; the appellant is his surviving spouse. The appellant testified before the undersigned at a Board videoconference hearing in March 2020. A transcript of the hearing is of record. The Board previously remanded this case in June 2020 for additional development. In August 2020, the appellant submitted additional July 2020 statements, which will be discussed in greater detail below. The case has now returned to the Board for further appellate review. Entitlement to service connection for the cause of the Veteran’s death is granted. The appellant seeks to establish entitlement to service connection for the cause of the Veteran’s death. The Veteran’s death certificate identifies the immediate cause of death as myocardial infarction and identifies severe, severely stenosing atherosclerosis of the anterior descending and circumflex branches of the left coronary artery as an underlying cause. To establish service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Of course, another manner through which the appellant may establish entitlement to service connection for the cause of the Veteran’s death is by establishing that the disability that caused death was itself a disability meeting the criteria to be considered a service-connected disability. Pertinent to this case, if a veteran was exposed to an herbicide agent during active service and has contracted an enumerated disability, such as ischemic heart disease, to a degree of 10 percent or more disabling at any time after service, service connection is warranted even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6), 3.309(e). A veteran who, during active service, served in or near the DMZ during the period between September 1, 1967, and August 31, 1971 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 U.S.C. § 1116B. However, the Veteran served in Korea after that period. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran served as a track vehicle mechanic with an engineering battalion in the Second Infantry Division in Korea from November 1971 to November 1972. His service records indicate that he was stationed at or near Camp Edwards. He is a recipient of an Imjin Scout insignia for service along the DMZ; according to an article submitted by the appellant, the insignia may be worn by members of the Second Infantry Division who performed more than 20 administrative or logistical operations north of the Imjin River, including construction and vehicle recovery missions. According to a December 1998 U.S. Department of Health and Human Services Agency for Toxic Substances and Disease Registry report, “Toxicological Profile for Chlorinated Dibenzo-p-dioxins,” exposure to chlorinated dibenzo-p-dioxins (CDD) can occur through skin contact with contaminated soils. The half-life of tetrachlorodibenzo-p-dioxin (TCDD), a type of CDD, on the soil surface was estimated to range from 9 to 15 years. In a June 2017 letter, a private physician who treated the Veteran upon his return from Korea stated that it is likely probable that type 2 diabetes and coronary artery disease developed due to herbicide agent exposure; however, no rationale was provided. In a July 2020 VA opinion, the clinician concluded that the Veteran’s death is less likely than not related to service, to include exposure to residuals of herbicide agents in the soil at or near the Korean DMZ in late 1971 and 1972. Noting the dose-dependent nature of herbicide agent effects and conceding that exposure to CDDs can occur through skin contact with contaminated soils, the clinician appears to conclude that any exposure to residuals of herbicide agents was insufficient to have biologic effects such as ischemic heart disease, as the Veteran did not have a ground/soil MOS but rather a vehicle mechanic MOS and did not reside in the DMZ but deployed to and from the DMZ for operations. The clinician also noted that current literature found that TCDD has been shown to rapidly degrade in the environment (99.9 percent during and immediately after soil application in test site studies) and that, contrary to the December 1998 HHS report, the half-life of TCDD on soil was less than a year (131-321 days). In August 2020 the appellant submitted a July 2020 statement from a D.R., a former chemical officer with the Second Infantry Division who supervised and directed the defoliation of the DMZ and environs from 1969 to 1970 using Agent Orange, Agent Blue, and Monuron. He stated that defoliation operations were designed to deny the enemy cover and concealment and provide defensive fields of fire of 200 meters beyond designated perimeters and along most of the access roads between the Imjin River and the DMZ; he identified priority areas including radar sites; forward observation, guard, and command posts in the DMZ and just south of the DMZ; and the barrier fence. He stated that unlike in the Republic of Vietnam, where herbicide agents were diluted with diesel or jet fuel, in Korea, Agent Orange was applied full-strength as fuel was scarce and that the Agent Orange used in Korea was most likely produced by companies which contained up to 25 percent more dioxin. He stated that conditions similar to the Korean DMZ were found in the Republic of Vietnam where Agent Orange had spilled or leaked full-strength into the soil. He stated that the dioxin has a half-life in surface soils of 5 to 15 years and in shallow buried soils of 25 to 100 years. Submitting photographs and Google Earth images of the DMZ, he concluded that “one can clearly see the evidence of long-term (50 years) presence of Agent Orange and dioxin in the Korean DMZ soils.” D.R. stated that he had over 50 years of experience with soils engineering and environmental fate of toxic chemicals including the family of dioxins and furans, as well as imagery analysis of remote sensing (Google Earth imagery). D.R. submitted his DD 214 corroborating his statement that he was a chemical officer with the Second Infantry Division as well as his resume stating that he earned a Master of Science degree in Geological Engineering, had professional certifications in geology and engineering, and had experience with hazardous and toxic waste management projects including with various local, state, and federal government agencies. The appellant also submitted a July 2020 statement from P.S., a combat engineer officer with the Second Infantry Division from 1968 to 1969. P.S. stated he was responsible for overseeing the maintenance and repairs of various vehicles and engineer equipment and that their equipment, which included several track bulldozers and a variety of wheeled heavy construction equipment, was regularly deployed working in and along the DMZ. He stated that, as the tracked equipment (bulldozers and tanks) were almost continuously deployed to work sites in and along the DMZ, routine and special maintenance was performed by mechanics at the job sites. He stated that when equipment broke down, a common occurrence, repairs had to be done on site as the equipment was large and could not be moved back to maintenance facilities. He stated that in these cases track mechanics worked in the Hostile Fire Zone. P.S. stated that the nature of their work as a combat engineer battalion meant that they worked in dirt, mud, and water and their vehicles, particularly heavy equipment, were covered and or packed with dirt and mud. He stated that their vehicles and equipment operated in soil and subsurface soil and that track mechanics were exposed to surface and subsurface soil. He stated that work on the projects continued after his departure from Korea. Finally, the appellant submitted a July 2020 statement from R.R., who served as an engineer from 1976 to 1977 in the same company in which the Veteran had served as a track vehicle mechanic in late-1971 and 1972. R.R. stated that as an engineer, he participated in construction projects that included excavation of topsoil and sub surface soil. R.R. stated that, as the Veteran was a track vehicle mechanic and an Imjin Scout, the Veteran would have operated in the Hostile Fire Zone and DMZ on a regular basis in order to repair heavy equipment. R.R. stated that the Veteran’s work repairing heavy equipment would have repeatedly brought him into direct contact with surface and sub surface soil. R.R. included photographs of his company’s job sites near and in the Korean DMZ, including photographs of an outpost and a radar site near the barrier fence, stating that the job sites were continuous throughout the years because of continuous upgrades to the sites. R.R. also included a copy of a temporary pass to ender the DMZ corroborating that he served in the same company in which the Veteran had earlier served. Given the specific facts of this case, the Board finds that the evidence is at least in equipoise that the Veteran had in service herbicide agent exposure. The Board finds the relevant portions of the statements of D.R., P.S., and R.R. included herein to be competent and reasonably uncontradicted and credible for the purposes of this analysis. The statements of P.S. and R.R., preceding and following the Veteran’s period of service in Korea, show that the engineering companies worked at job sites on on-going projects and continuous upgrades of the same sites. These sites in the Hostile Fire Zone and DMZ included outposts and radar installation sites, identified by D.R. as priority areas for defoliation operations. Their statements also demonstrate the continuity of duties of track vehicle mechanics in repairing equipment on job sites, where they were exposed to surface and sub-surface soil; the Board observes that the Veteran received an Imjin Scout insignia. Further, the Veteran’s period of service near the DMZ began only about 70 days after the presumptive period ended. Accordingly, the Board finds that the evidence is at least in equipoise that the Veteran had come into contact with soil where defoliation operations had been conducted. Further, the Board finds that the evidence is at least in equipoise that the soil contained TCDD at the time the Veteran was exposed to it. While the VA clinician and D.R. provide conflicting conclusions as to the half-life and photodegradation of TCDD, the Board finds D.R.’s statement to be of greater probative weight given his education and training as a geologist and experience in the field of hazardous and toxic waste management, including dioxins. Indeed, D.R. noted the current presence of Agent Orange in DMZ soil; the Board notes that VA regulations acknowledge that herbicides agents like Agent Orange contained 2,4-D; 2,4,5-T; and TCDD. 38 C.F.R. § 3.307(a)(6). As the December 1998 HHS study stated and the VA clinician confirmed that exposure to TCDD can occur through skin contact with contaminated soils, the Board finds that the evidence is at least in equipoise that the Veteran had herbicide agent exposure in service. While the 2020 clinician concluded that the Veteran’s cause of death is less likely than not related to service, the opinion appears to have been based on dose-dependent exposure to residuals of herbicide agents rather than exposure to herbicide agents; the Board notes that there is no threshold requirement for herbicide agent exposure under 38 U.S.C. §§ 3.307, 3.309. Further, the clinician did not have the benefit of the later developed evidence noting that the circumstances of the Veteran’s service was such that his vehicles and equipment operated in soil and subsurface soil and that track mechanics were exposed to surface and subsurface soil. In addition, the 2020 VA clinician acknowledged the half-life of TCDD on soil is at least 131 days, and the Veteran’s service near the DMZ began just over 60 days after the presumptive period ended. As the evidence is at least in equipoise that the Veteran had in-service herbicide agent exposure and the primary cause of death is myocardial infarction, an enumerated disorder associated with herbicide agent exposure, service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.