Citation Nr: 21031904 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-26 212 DATE: May 24, 2021 ORDER Entitlement to service connection for the cause of death (COD) is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDING OF FACT 1. The Veteran died in December 2006. The Veteran's death certificate indicates septic shock as a consequence of bilateral pneumonia, and underlying end stage renal disease and myelodysplastic syndrome. 2. The Veteran did not have active duty in the Republic of Vietnam. 3. The evidence does not establish in-service herbicide exposure in Korea, including along the DMZ. 4. The cause of the Veteran's death has not been shown to be etiologically related to any disease or injury in service. 5. At the time of his death, the Veteran was not service connected for any disabilities. CONCLUSION OF LAW 1. A disability incurred in, or aggravated by, service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C. §§ 1101, 1103, 1110, 1112, 1113, 1137, 1318, 5103, 5103A, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.300, 3.303, 3.307, 3.309, 3.312. 2. The criteria for DIC under the provisions of 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the Air Force from February 1971 to May 1978. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Veteran's claims were previously remanded by the Board in a January 2018 decision. The Board finds that the RO has substantially complied with the January 2018 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for the cause of death (COD) The appellant contends that the Veteran was exposed to herbicide agents at the Korean DMZ during leave while stationed at Osan Air Base in Korea. The appellant further contends that the Veteran's myelodysplastic syndrome (MDS) was the result of his exposure to herbicide agents, which caused or contributed substantially or materially to the Veteran's death. The Board also notes that neither the Veteran nor the appellant have advanced the argument that the Veteran's conditions began in service or were the result of an injury or incident in service other than exposure to an herbicide agent. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present 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 or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases, to including B-cell leukemias, may be presumed to have been incurred in service, if they become manifest to a degree of 10 percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. Service connection based on exposure to designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C.§ 1116 (a)(2); 38 C.F.R. § 3.309. Additionally, a veteran who, during active military 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 (Demilitarized Zone) 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 the contrary. 38 C.F.R. § 3.307(a)(6)(iv). The Veteran's conditions are not on the list of diseases associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e). The Board acknowledges that O.D., M.D., opined that assuming the Veteran was exposed to herbicides during his service in Korea, it is more likely than not that this exposure to herbicides caused the later development of MDS, which was a contributory factor to the Veteran's death. As discussed below, the Board cannot concede exposure to herbicides during service. Thus, the Board notes that a medical opinion which is based upon an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board assigns no probative weight to Dr. O.D.'s opinion. Service treatment records (STRs) do not contain complaints of, treatment for, or a diagnosis of septic shock, bilateral pneumonia, ESRD, or MDS. Service personnel records show that the Veteran served as a communications center specialist at Osan Air Base, Korea. The unit is not one of the units for which a presumption of exposure to herbicide agents is available. The Veteran's Airman Performance Reports from 1971 and 1972 indicate that he performed his duties as a communications center specialist in a crisp, efficient manner and indicated that he was an outstanding communicator. The performance reports also indicated the Veteran was extremely intelligent, patient, and enjoyed sharing his acquired skills with newly assigned personnel. However, the Veteran's records do not reflect service in the DMZ or exposure to an herbicide agent. At the May 2017 Board hearing, Dr. O.D. indicated that the Veteran's MDS was likely to have progressed into Leukemia, which is a listed condition under § 3.309(e), had he lived longer. The appellant also testified that the Veteran wrote to her that he was going to be inaccessible because he was serving near the DMZ. The appellant also testified the Veteran rode in the back of trucks while on furlough to Seoul. Following the January 2018 Board remand decision, the RO contacted the Joint Services Records Research Center (JSRRC) regarding unit histories for the 2074th Communications Squadron (CS) and its higher headquarters for the period of the Veteran's service at Osan Air Base. The JSRRC indicated that they were able to research the history for the 2146th Communications Group (CG) stationed at Osan Air Base from February 1972 to April 1972, but unable to research the period of July 1971 to December 1971. JSRRC indicated they found no evidence of herbicide exposure for the Veteran or anyone in the CG. JSRRC recommended contacting the Air Force Historical Research Agency for the unresearched period. On October 21, 2020, an archivist with the Air Force Historical Research Agency (AFHRA) submitted a statement indicating that there was no evidence that the tactical herbicide Agent Orange existed at Osan Air Base in Korea. The AFHRA also noted that the Department of Defense suspended the use of Agent Orange after April 19, 1970, prior to the Veteran's deployment to Korea. The evidence is insufficient to prove service at or near the Korean DMZ, or any other herbicide exposure during the Veteran's military service. The appellant contends that the Veteran rode on the back of trucks through the DMZ on the way to Seoul. The JSRRC and the AFHRA were unable to find itineraries or schedules for the Veteran regarding his travels outside Osan Air Base or to the DMZ. The Board notes that Osan Air Base is approximately 38 miles south of Seoul, Korea, and Seoul is approximately 15 to 20 miles south of the DMZ. While the Veteran and the appellant are competent to share their personal recollections of his service, the statements are inconsistent with the evidence of record. See Caluza v. Brown,7 Vet. App. 478, 511 (1995), aff'd per curium,78 F.3d 604 (Fed. Cir. 1996) (when determining whether lay evidence is satisfactory, the Board may properly consider internal consistency, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and demeanor of witness (if hearing held)). Therefore, the Board does not find the statements credible. Therefore, the Board finds that the weight of the competent and credible evidence is against the appellant's claim, and there is no reasonable doubt to resolve. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.