BVA Case 23-3528: Back

Ferrerio,appeals the May 9, 2023,Board of Veterans'Appeals (Board)decision in which the Board denied service connection for a heart disability.

In the March 2023 statement in response to the February 2023 SSOC, the appellant, through his attorney,asserted that instead of affording him the benefit of the doubt and according more weight to evidence that 'suggests that there was aerial spraying of defoliant in the DMZ during the 1960's and as early as 1955' VA simply found that he served in Korea 9 years prior to herbicides being used there.

Per the appellant,VA should have given more weight to the credibility of his statements and not based its decision on the absence of his unit history records.

3 Case:23-3528 Page: 4 of 13 Filed:05/13/2024 In the May 2023 decision,the Board determined that the appellant's heart disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period.

With respect to the second element required for service connection,an in-service event or injury,the appellant maintains that the Board erred when it considered the absence of evidence to be negative evidence.

The appellant further maintains that,after providing his November 2020 hearing testimony and the written statement attesting to the fact that he was exposed to herbicides when he slept on the ground in the Korean DMZ,the Board found him competent to state he was present when chemicals were sprayed.

In addition,the appellant notes that when records are lost, the Board has a heightened duty to consider the applicability of the benefit of the doubt rule favoring veterans.

According to the appellant,the Board failed to fulfill this duty because it did not discuss the eye witness account in the newspaper article or explain why the evidence was disregarded.