Citation Nr: 21026539 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-45 531 DATE: May 3, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in September 2013, and myocardial infarction is listed on his death certificate as one of the causes of his death. 2. The evidence of record regarding the Veteran's exposure to herbicide agents in or near the demilitarized zone (DMZ) in Korea is consistent with his service and is found to be credible; there is also no affirmative evidence to the contrary. 3. One of the Veteran's causes of death being listed as myocardial infarction is subject to presumptive service connection as a result of exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to DIC based on service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1116B, 1310 (2018); 38 C.F.R. §§ 3.307, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1967 to April 1969. He died in September 2013. The Veteran's surviving spouse is the appellant. She appeals an April 2014 rating decision by the Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for cause of death. In her December 2015 VA Form 9, the appellant requested a hearing before the Board, but in a March 2021 correspondence, the appellant asked VA to continue the appeal without holding a hearing. Her hearing request is thus considered withdrawn. DIC Cause of Death To grant service connection for the cause of a veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In cases of service connection for the cause of death of a veteran, the first requirement of a current disability is met by the condition that caused the veteran to die. However, the last two requirements for a service connection claim must be supported by the record: an in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who during active military, naval, or air service served between September 1, 1967 and August 31, 1971, in a unit that operated in or near the Korean DMZ in an area where 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 establishing that the Veteran was not exposed to any such agent. 38 U.S.C. § 1116B; 38 C.F.R. § 3.307(a)(6). Further, a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a)(6)(iv). In this case, the Veteran's death certificate reflects that the Veteran died in September 2013. Myocardial infarction is listed as one of the causes of death on the death certificate. Myocardial infarction as ischemic heart disease is a disease associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e). Thus, the dispositive issue is whether the Veteran's duties placed him in or near the Korean DMZ any time while he was stationed in Korea. Here, it is undisputed that the Veteran served in Korea from March 1968 to April 1969. See Military Personnel Record at 2. The Veteran's entire service in Korea falls within the time period in which herbicide agent exposure is presumed for service in or near the Korean DMZ. See 38 U.S.C. § 1116B; 38 C.F.R. § 3.307(a)(6)(iv). The appellant contends the Veteran made frequent trips to the DMZ as a radio operator while he was stationed in Korea. See April 2014 Notice of Disagreement; December 2015 VA Form 9. The Veteran's military personnel records reflect that he served as a radio operator in the 1st Battalion, 42nd Artillery at Camp Page. See Military Personnel Record at 3; Service Treatment Record (STR) Medical at 41. While the Veteran's assigned unit is not listed among those as having been exposed to herbicide agents, exposure on a direct, facts-found basis may be established. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The appellant's credible statements that the Veteran was a radio operator and his duties took him into the DMZ are consistent with the Veteran's military personnel records. See April 2014 Notice of Disagreement; December 2015 VA Form 9. There is no affirmative evidence to explicitly contradict the appellant's reports of the Veteran being in or near the Korean DMZ. The Board must consider lay evidence in addition to the service records, and the places, types, and circumstances of service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Neither the lay statements nor the service records definitively demonstrate whether the Veteran's duties placed him in or near the Korean DMZ. However, both, when combined with the fact that the appellant's reports are consistent with the information contained in the Veteran's service records, are persuasive indicators that the Veteran's duties placed him in or near the Korean DMZ, as she claims. As the appellant's lay statements are both competent and credible in this regard, the evidence is at least approximately balanced on the question at issue. Such doubt must be resolved in favor of the appellant. Therefore, the Veteran's duties placed him in or near the Korean DMZ. 38 U.S.C. § 5107(b); see also 38 C.F.R. § 3.102. Thus, for purposes of this decision only, the Board finds that the Veteran was exposed to herbicide agents on a facts-found basis. Thus, as myocardial infarction in part caused the Veteran's death and this disability is presumed service connected in veterans who were exposed to herbicide agents, entitlement to DIC based on cause of death is granted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.