Citation Nr: 22016339 Decision Date: 03/22/22 Archive Date: 03/21/22 DOCKET NO. 17-54 905 DATE: March 22, 2022 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran did not have exposure to herbicide agents during his active service. 2. The Veteran's death certificate showed that he died in August 2009 of sudden cardiac death as a result of acute myocardial infarction due to hypertension. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from February 1971 to October 1972. He died in August 2009. The appellant claims as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the appellant provided testimony at a Board hearing. A copy of the hearing transcript has been associated with the record. At the hearing, the appellant submitted additional evidence and waived RO consideration of that evidence along with any additional evidence that may have been added to the record since the issuance of any earlier statements of the case (SOC). 1. Entitlement to service connection for the cause of the Veteran's death Dependency and Indemnity Compensation (DIC) benefits are 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. A veteran's death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a veteran's death for compensation purposes, it must be shown that it 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(c)(1). Service connection may be granted on a presumptive basis based on herbicide exposure. A veteran who, during active military service between April 1, 1968, and August 31, 1971, served in a unit that operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, as determined by the Department of Defense (DOD), 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). If a veteran was exposed to Agent Orange certain diseases are presumptively service connected. 38 U.S.C. § 1116B; 38 C.F.R. § 3.309(e). In addition, the National Academy of Sciences (NAS) has indicated that there is sufficient evidence of an association between hypertension and Agent Orange exposure. See Veterans and Agent Orange: Update 11 (2018). As Update 11 moved hypertension from the "limited or suggestive" category to the category of "sufficient" evidence of an association, the theory of entitlement to hypertension based on the Veteran's Agent Orange exposure is constructively before VA pursuant to the relevance and reasonableness standard of Euzebio v. McDonough, 989 F.3d 1305, 1321 (Fed. Cir. 2021). The appellant is seeking service connection for the cause of the Veteran's death. The appellant contends that the Veteran was exposed to Agent Orange while he was stationed in Korea, and that his death was due to that exposure. Specifically, she alleges that the Veteran had supplied fuel to units in the Korean DMZ. The Veteran was not service-connected for any disabilities prior to his death. The Veteran's death certificate showed that he died in August 2009 of sudden cardiac death as a result of acute myocardial infarction due to hypertension. While the Board recognizes the appellant's contentions that the Veteran was exposed to Agent Orange while serving in Korea unfortunately, the evidence reflects that the Veteran did not have service in the demilitarized zone or in a unit which was known to have been exposed to Agent Orange. In this regard, the RO obtained information from the Defense Personnel Records Information Retrieval System (DPRIS) in an effort to determine whether the Veteran had Agent Orange exposure during his service in Korea. DPRIS stated that they coordinated the search for information with the National Archives and Records Administration (NARA). NARA was unable to locate the Veteran's 1972 unit's record submitted with the 7th Battalion, 2nd Artillery, 38th Artillery Brigade. DPRIS reviewed the May 1972 U.S. Army station list which documents the 7th Battalion, 2nd Artillery unit was located at Toksan-Ni , South Korea and the 38th Brigade was located at Osan, South Korea. DPRIS also reviewed the 1972 chronology submitted by the 8th U. S. Army. The records did not document the use, storage, spraying or transportation of Agent Orange or other tactical herbicides. In addition, the record did not mention or document any specific duties performed by the Veteran's unit members along the DMZ. Thus, there is no evidence to support the claim that the Veteran was exposed to herbicide agents during his service in Korea. The Board also finds that service connection for cause of death is not warranted on a direct basis. The Veteran's hypertension was diagnosed several years following his discharge from service. The evidence of record does not support, and the appellant does not contend that the Veteran's hypertension began or manifested during his service. With respect to the duty to assist, absent evidence of an in-service incurrence, or any evidence beyond the contentions of the appellant to tie the Veteran's death to his active service, no medical opinion is required before the Board decides this case. The weight of the evidence here is against the appellant's claim, and the evidence is not in approximate balance. The benefit of the doubt rule is not for application. Therefore, entitlement to service connection for the cause of the Veteran's death is denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.