Citation Nr: 22015276 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-44 775 DATE: March 16, 2022 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND Unfortunately, the Veteran died in January 2013. Given such, prior to discussing the appeal at hand, the Board would be remiss if it did not recognize his outstanding service, where he served in the United States Army on active duty from August 1965 to August 1968. The Veteran was clearly a credit to the United States Army and to his family, and his service to his country is greatly appreciated. The appellant is the Veteran's surviving spouse. In January 2021, the Board denied the appellant's claim on appeal. The appellant appealed the denial of the claim to the Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR). The parties agreed that the Board's January 2021 denial of the above claim should be vacated and remanded because the Board did not (1) consider a declassified document from the Department of Defense that stated that herbicides were used in Korea between 1962 and 1970, pertaining to the issue of the Veteran's exposure to herbicides while he served in Korea, and (2) address whether the duty to assist in verifying the Veteran's actual exposure to herbicides has been met based on the U.S. Armed Service Center for Unit Records Research response indicating that herbicides were used in Korea in 1967 and in 1969. Cause of Death The Board finds that a remand is warranted to attempt to verify whether the Veteran was actually exposed to herbicides during his service in Korea. In the present case, the appellant contends that the Veteran's cause of death was due to his exposure to herbicide agents during his service. The appellant contends that the Veteran's diabetes mellitus played a significant role in the Veteran's death. The Board notes that the Veteran's death certificate reflects diabetes mellitus as a significant condition related to the Veteran's death. With respect to the Veteran's exposure to herbicides, the appellant contends that the Veteran was exposed to herbicide agents while deployed in Korea with the 526th Company as a bridge specialist. The Veteran's service personnel records indicate that he served in Korea from February 2, 1966 to March 1, 1967. The appellant submitted a declassified document titled "Use of Chemical Herbicides in Korea," which states "it is possible that US personnel were exposed to them [herbicides] but not likely since the herbicides were applied by hand or trailer mount sprayers instead of by aerial spraying as in South Vietnam." The document states that the geographic sites where the herbicides were employed was between the south tape of the DMZ and the civilian control line in I Corps (GP) and First ROK Army Areas. The document indicates that herbicides were used in Korea from 1966 to 1967. Furthermore, during the June 2020 Board hearing, the appellant's representative stated that "in February 2002, VA received a response from U.S. Armed Service Center for Unit Records Research indicating that herbicides were used in Korea in 1967 and in 1969." Therefore, given that the declassified document, which indicates that herbicides were used in Korea from 1966 to 1967, and the U.S. Armed Service Center for Unit Records Research response, which indicates herbicides were used in Korea in 1967 and in 1969, both reflect that herbicides were used in Korea during the Veteran's service in Korea (February 2, 1966 to March 1, 1967), the Board finds that in order to satisfy its duty to assist, a remand is warranted to verify whether there is any evidence that the Veteran was actually exposed to herbicides during his service. The Board notes that these types of requests for verification were previously submitted to the Joint Services Records Research Center (JSRRC) for verification of herbicide exposure. However, there has been a regulatory amendment removing the reference to the JSRRC in 38 C.F.R. § 3.156 (c)(2). The Federal Register explained that the JSRRC no longer exists, but that the military records themselves previously researched by the JSRRC remain available for research by VA as an official source of records. Given such, the RO shall contact the appropriate government records repositories, and attempt to verify the Veteran's claimed exposure to herbicide agents in Korea. The matters are REMANDED for the following action: 1. Contact the appropriate government records repositories, and attempt to verify the Veteran's claimed exposure to herbicide agents during his service in Korea. Here, the appellant contends that the Veteran was exposed to herbicide agents while deployed in Korea with the 526th Company as a bridge specialist. The Veteran's service personnel records indicate that he served in Korea from February 2, 1966, to March 1, 1967. If more details are needed, contact the appellant to request the information. If the appropriate government records repositories cannot verify the Veteran's exposure to herbicide agents in Korea, the AOJ should document the attempts that were made to corroborate the claimed exposure and explain in writing why further attempts to locate or obtain corroborating government records would be futile. The AOJ should then: (a) notify the appellant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The appellant should then be given an opportunity to respond. In attempting to verify exposure, the AOJ should consider: (1) The declassified document titled "Use of Chemical Herbicides in Korea," which stated "it is possible that US personnel were exposed to them [herbicides] but not likely since the herbicides were applied by hand or trailer mount sprayers instead of by aerial spraying as in South Vietnam." The document states that the geographic sites where the herbicides were employed was between the south tape of the DMZ and the civilian control line in I Corps (GP) and First ROK Army Areas. The document indicates that herbicides were used in Korea from 1966 to 1967; and (Continued on the next page) (2) A February 2002 response from U.S. Armed Service Center for Unit Records Research indicating that herbicides were used in Korea in 1967 and in 1969. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.