Citation Nr: 21015314 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-03 141 DATE: March 17, 2021 ORDER Entitlement to service connection for plasmacytoma, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT The preponderance of the evidence is against finding that plasmacytoma began during active service or is otherwise related to an in-service injury or disease, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for plasmacytoma, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1971 to December 1974. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in November 2020. A transcript of the proceeding is of record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for plasmacytoma The Veteran contends that he is diagnosed with plasmacytoma, a form of multiple myeloma, due to his exposure to herbicide agents along the Korean DMZ between 1973 and 1974. The Veteran contends that, though his service in Korea falls outside the period during which the VA will concede exposure to herbicide agents, he was nevertheless exposed to herbicide agents and is therefore entitled to service connection on a direct basis. The Board concludes that, while the Veteran has a current diagnosis of plasmacytoma, a form of multiple myeloma, and evidence shows that he served in Korea with several visits to the DMZ, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of plasmacytoma began during service or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicide agents. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during active service, certain enumerated diseases, including multiple myeloma, shall be presumptively service-connected even where there is no record of such disease during service. See 38 U.S.C. § 1116B; 38 C.F.R. § 3.309(e). 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, operated in or near the Korean 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). Under the Blue Water Navy Vietnam Veterans Act of 2019, the relevant period of service was expanded to September 1, 1967 through August 31, 1971. See 38 U.S.C. § 1116B; see also Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 3, 133 Stat. 966, 970 (eff. Jan. 1, 2020). However, the presumption of service connection for herbicide-related diseases may also apply if exposure to herbicide agents is shown on a factual basis. In essence, if the Veteran did not serve at the Korean DMZ in a particular unit during the required timeframe, actual exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for herbicide-related diseases under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicide agents is not presumed in such instances, but the exposure to one of the herbicides listed at 38 C.F.R. § 3.307(a)(6)(i) can still be established if shown by the facts of the case. Once exposure to herbicide agents has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Additionally, even if service connection is not warranted under one of the presumptive regulations, this does not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to herbicide agents. Brock v. Brown, 10 Vet. App. 155 (1997). The Veteran was diagnosed with plasmacytoma, a form of multiple myeloma, in 2015. See March 2015 Letter from Dr. J.N. To warrant service connection, multiple myeloma may manifest to a degree of at least 10 percent at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). Therefore, the Veteran has a disability associated with herbicide exposure for purposes of the above presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). As an initial matter, the Board finds the Veteran served near the Korean DMZ between 1973 and 1974. Military personnel records show the Veteran was a counterintelligence special agent assigned to the 502nd Military Intelligence Battalion, which was headquartered at Camp Coiner in Seoul, Korea. The Veteran competently and credibly testified at the November 2020 Board hearing that he was primarily stationed at Camp Page, 100 kilometers northeast of Seoul, and that he visited the DMZ on several occasions. The Board finds this testimony to be consistent with the places, types, and circumstances of his service. However, the Board notes that because there is no presumption of herbicide agent exposure for veterans who served in or near the Korean DMZ after August 31, 1971, the central question is whether the evidence of record establishes on a factual basis that the Veteran was exposed to herbicide agents while serving in Korea. After a review of the evidence, the Board finds the Veteran was not exposed to herbicide agents while serving in Korea. Review of Defense Personnel Records Information Retrieval System (DPRIS) records found no evidence of the use, storage, spraying or transportation of herbicides to include Agent Orange. See November 2017 DPRIS Response. However, the Veteran submitted two articles to support his contention that he was nevertheless exposed to herbicide agents due to the length of time the chemicals remain in the environment. See Correspondence received June 2015; November 2020 Board hearing. The Board notes that the articles submitted by the Veteran are very general in nature and do not contain any information or analysis specific to the Veteran’s case or the circumstances of his disability. Furthermore, the Board finds that the submitted articles have little probative value to the question currently before it. The Veteran also submitted three letters from private oncologists Dr. J.K. and Dr. J.N. opining that it is a greater than 50 percent probability that herbicide agents were still present at the Korean DMZ at the time the Veteran served, and the Veteran was thus exposed to herbicide agents See Letters dated March 2015 and May 2015. Unfortunately, these physicians have not been shown to have the experience, education, and training necessary to make a competent opinion regarding the occurrence of herbicide agents in the environment, a determination outside the scope of the private physicians’ expertise. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Therefore, the opinion is of little probative weight regarding whether the Veteran was exposed to herbicide agents in Korea. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board notes that while the Veteran has asserted that he was exposed to herbicide agents while stationed in Korea, there is no evidence in the record corroborating this assertion. Unfortunately, a lay person’s assertions indicating exposure to gases or chemicals during service are not considered to be sufficient evidence alone to establish actual exposure. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Therefore, the Veteran’s assertions regarding exposure to herbicide agents are not found to be sufficient to establish exposure to herbicide agents during service. The record does not contain any other competent evidence linking the Veteran’s disability to his exposure to any environmental exposures during service. The Board finds that the evidence of record does not show that the Veteran was exposed to herbicide agents in service. The required period of service near the Korean DMZ is not shown nor is there evidence of exposure to herbicide agents while the Veteran was stationed in Korea. Thus, the Board finds that service connection on this presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. Additionally, the Veteran does not contend, and the evidence does not show, any other in-service injury, event, or disease that could be the cause of the Veteran’s disability. Accordingly, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim of service connection for plasmacytoma must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, 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.