Citation Nr: 21013575 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-35 960 DATE: March 9, 2021 ORDER Service connection for a heart disorder is denied. Service connection for seizures is denied. FINDING OF FACT Current heart and seizure disorders were not incurred in and are not otherwise etiologically related to service, including service in Korea or in-service herbicide exposure; seizures did not onset within one year of military separation. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disorder have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for seizures have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1967 to May 1969, including foreign service in Korea. These appeals were previously remanded by the Board in August 2018 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection The Veteran is currently pursuing direct service connection for heart and seizure disorders. The Board will limit its analysis accordingly. As these appeals require similar analyses, they will be addressed simultaneously herein. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Here, there is competent evidence of current disorders. Notably, the Veteran was diagnosed with coronary artery disease, congestive heart failure, hypertension, and coronary artery bypass grafting during December 2014 and August 2016 evaluations conducted by his primary care provider. VA medical records spanning the period on appeal also note the Veteran’s history of a seizure disorder which requires ongoing treatment. Upon this evidence, the first element of direct service connection has been met for both appeals. Next, the Veteran associates his current heart and seizure disorders with alleged exposure to herbicide agents during service in Korea. As an initial matter, the Veteran’s personnel records document his service in Korea from April 1968 to May 1969. VA regulations establish that veterans 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 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); see also 38 C.F.R. § 3.814(c)(2). Such circumstances are not met in this case. Although the Veteran has verified service in Korea during the presumptive time period, the evidence does not establish that he was operating in or near the Korean DMZ during this time. His personnel records are silent in this respect, and a June 2014 Formal Finding confirms that the Veteran’s records do not show service with “a unit where [DoD] recognizes [h]erbicide exposure in Korea.” Additionally, two Defense Personnel Records Information Retrieval System (DPRIS) responses offered in July 2019 and October 2019 report that available records do not document any specific duties performed by the Veteran’s units along the DMZ. In contrast, the Veteran has repeatedly asserted that he served in the Korean DMZ. See, e.g., lay statements dated March 2014 and August 2016. However, he has not offered any more specific testimony as to the purported location of his service at the DMZ, and acknowledges that his memory in this respect is not entirely reliable. See, e.g., March 2014 lay statement (“My memory is very bad . . . it’s hard to remember exact location[s] and what happened exactly”). Thus, the most probative evidence weighs against a finding that the Veteran operated in or near the Korean DMZ. His own personnel records are silent for such service, and VA’s and DPRIS’ independent research revealed no history of such. Further, the Veteran’s testimony on this matter is deficient for its lack of specificity and noted unreliability. Miller v. Wilkie, 32 Vet. App. 249 (2020). As such, in-service exposure to herbicide agents is not presumed. 38 C.F.R. § 3.307. Nonetheless, the purported exposure may still be established upon the evidence of record. However, upon consideration of the record in its entirety, it is not found that the Veteran was exposed to herbicide agents during service. Again, the June 2014 Formal Finding speaks directly to this point. At that time, VA concluded that there was insufficient information to corroborate the claimed exposure, or to allow for meaningful research by the U.S. Army and Joint Services Records Research Center (JSRRC) or National Archives and Records Administration (NARA). In doing so, VA confirmed that all proper development procedures were followed in accordance with VA’s Adjudication Manual; that consideration had been afforded to the Veteran’s testimony on this matter; that a Personnel Information Exchange System (PIES) search yielded no records of exposure to herbicides; that the Veteran had been informed that his units were not known by DoD to be associated with herbicide exposure in Korea; and that the Veteran had been unable to provide any more specific data to aid in further research. The July 2019 and October 2019 DPRIS responses support this negative finding. Taken in combination, these replies reflect coordination with the National Archives and Records Administration, which were unable to locate 1968 or 1969 records submitted by the Veteran’s former unit (the U.S. Army Strategic Communications Command-Communications Operations Battalion). Operational and station reports reflected service in Seoul and Taegu, South Korea, but did not document the use, storage, spraying or transporting of Agent Orange or tactical herbicides. The record is otherwise silent for the reported exposure other than that testimony offered by the Veteran in support thereof. In this respect, a veteran is generally competent to testify as to events capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, this Veteran’s testimony is not sufficiently probative to overcome the negative evidence of record. As previously discussed, the Veteran himself has questioned his capacity to accurately recall in-service events; rather, he has consistently reported in-service circumstances which are otherwise uncorroborated, such as service along the DMZ. Moreover, the purported exposure is not particularly consistent with the nature of the Veteran’s military occupational specialty (MOS) as a Communications Center Specialist, which would not likely require or incite contact with herbicide agents. Compellingly, all other evidence in this case contradicts the Veteran’s testimony on this point, including objective research performed by multiple entities. Accordingly, the evidence weighs against a finding that the Veteran was exposed to herbicide agents during service. Thus, the second element of direct service connection is not met for these appeals and further inquiry into the nexus requirement is rendered moot. As the Veteran is not found to have experienced in-service herbicide exposure, presumptive service connection for his coronary artery disease is not available as a result thereof. 38 C.F.R. § 3.307, 3.309. Finally, the Veteran’s seizure disorder has not been classified as epilepsy at any time. See generally VA and private treatment records. Even if such a diagnosis were rendered, the evidence does not indicate that this condition onset within one year of the Veteran’s military separation. See generally VA treatment records (documenting an onset of approximately 2000). Accordingly, presumptive service connection due to chronicity does not apply. In sum, the preponderance of the evidence is against the claims such that the benefit-of-the-doubt rule is not applicable. The appeals seeking direct service connection for heart and seizure disorders, to include on the basis of in-service herbicide exposure, are hereby denied. [CONTINUED ON NEXT PAGE] Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.