Citation Nr: 22014293 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 18-44 555 DATE: March 12, 2022 ORDER 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 May 2018. 2. The cause of the Veteran's death was brainstem herniation, subdural hemorrhage, multiple myeloma. 3. The Veteran was exposed to herbicide agents exposure during service in Korea from November 1971 to December 1973. 4. The Veteran's cause of death, multiple myeloma, is causally related to herbicide agent exposure. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1131, 1116, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1971 to April 1979. The Veteran died in May 2018. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision from the Pension Management Center, which denied service connection for the cause of the Veteran's death. In October 2021, the appellant testified at a Board virtual hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Service Connection for Cause of Death is Granted. Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312; Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires 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 in or aggravated by service. In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309(e). The Department of Defense has also confirmed to VA that Agent Orange was used along the DMZ in Korea from April 1968 to July 1969. Fields of fire between the front-line defensive positions and the south barrier fence were defoliated. The size of the treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. According to the Department of Defense, there was no indication that herbicides were sprayed in the DMZ itself. Herbicides were applied through hand spraying and by hand distribution of pelletized herbicides. Although restrictions were put in place to limit potential for spray drift, run-off, and damage to food crops, records indicate that the effects of spraying were sometimes observed as far as 200 meters down wind. Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain veterans who served in Korea. Specifically, VA added a new paragraph (iv) to 38 C.F.R. § 3.307 (a)(6) that reads as follows: 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); see also 38 C.F.R. § 3.814(c)(2). Multiple myeloma is listed as a disease for which presumptive service connection based on exposure to herbicides agents may be granted. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). In the present case, the death certificate lists the cause of death as brainstem herniation, subdural hemorrhage, multiple myeloma. The appellant contends that the Veteran's cause of death, multiple myeloma, is related to herbicide agent exposure during the Veteran's service in the Korean DMZ. During his lifetime, the Veteran testified that he served as an infantryman in the Korean DMZ, during which time he was assigned to the DMZ Radar 8 site, which provided surveillance of the physical border between North and South Korea. The Veteran testified that he was told the area was sprayed with chemicals prior to his unit's arrival in order to defoliate the area, and that that there was no vegetation growing while he was stationed at the Korean. The appellant testified that Veteran told her that the ground along the DMZ was hard and dry with no observable vegetation. See October 2021, May 2018 Board Hearing Transcript. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Korea is only warranted for veterans who served in or near the Korean DMZ from April 1, 1968, and August 31, 1971, during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(iv); see also 38 C.F.R. § 3.814(c)(2). The service personnel records show that the Veteran served in Korea from November 7, 1971 to December 10, 1973, a little more than two months after the prescribed period, so herbicide agent exposure is not presumed. The Board finds that the evidence is at least in equipoise on the question of whether the Veteran was exposed herbicide agents during service in Korea. The DD Form 214 and service personnel records show that the Veteran's military occupational specialty was infantryman and he served in Korea from November 7, 1971 to December 10, 1973, a little over two months after the presumptive period for herbicide agent exposure in the Korean DMZ. The Veteran provided credible lay testimony of serving at the Korean DMZ, where he observed the land in the demilitarization zone to be devoid of vegetation and was told that the area was defoliated prior to the unit's arrival. Resolving reasonable doubt in the appellant's favor, the Board finds the accounts of in-service herbicide agent exposure to be credible and consistent with the places, types, and circumstances of the Veteran's service. 38 U.S.C. § 1154(a). In a March 2020 opinion, Dr. Ellis, who is board certified in environmental medicine, noted review of the evidence of record that included the death certificate, lay testimony, VA internet literature on the Korean DMZ and Agent Orange, and an EPA Fact Sheet on Dioxin. Dr Ellis considered lay testimony regarding the lack of vegetation and hard dirt the Veteran observed during his service in the Korean DMZ. Based a review of the medical and lay evidence, Dr. Ellis opined that the Veteran was likely exposed to herbicide agents. Dr. Ellis explained that the Veteran's observation of hard dirt with little vegetation at the DMZ was a result of herbicide use in the DMZ. The EPA fact sheet on dioxin indicate that, dioxin is generally resistant to biodegradation, and the persistence half-life of dioxin on soil surfaces may vary from less than 1 year to 3 years, but half-lives in soil interiors may be as long as 12 years. The evidence is at least in equipoise on the question of whether the Veteran's cause of death, multiple myeloma, was caused by in-service exposure to herbicide agents. Upon reviewing the evidence of record, including VA website literature that indicates sufficient evidence of an association between multiple myeloma and herbicide agent exposure, Dr. Ellis opined that it is more likely than not that herbicide agent exposure contributed to the onset and development of multiple myeloma, noting that Agent Orange exposure was likely an accelerating factor in developing multiple myeloma. For these reasons, and resolving reasonable doubt in the appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, S. 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.