Citation Nr: 1529280	
Decision Date: 07/08/15    Archive Date: 07/15/15

DOCKET NO.  12-11 506	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for ischemic heart disease as a result of herbicide exposure.  


REPRESENTATION

Appellant represented by:	Chisholm, Chisholm & Kilpatrick, LLC


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

H. Hoeft


INTRODUCTION

The Veteran served on active duty from June 1969 to June 1973. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 

The Veteran testified before the undersigned Veterans Law Judge via Video Conference in July 2013.  A transcript of that proceeding has been associated with the Veteran's electronic claims file. 

By decision dated October 2014, the Board denied the Veteran's claim of entitlement to service connection for ischemic heart disease.  He appealed this determination to the United States Court of Appeals for Veterans Claims (Court) which, by Order dated April 2015, granted a Joint Motion for Remand.  The case is thus again before the Board for appellate consideration. 


FINDINGS OF FACT

1. Service in the Republic of Vietnam is not shown; however, the evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during his period of service at the Royal Thai Air Force Bases (RTAFBs) in U-Tapao and Takhli, Thailand.

2. The Veteran's currently diagnosed ischemic heart disease is presumed incurred as a result of herbicide exposure.



CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria to establish service connection for ischemic heart disease, diagnosed as coronary artery disease, are met. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e) (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

In light of the favorable decision in this case, a detailed discussion regarding how VA satisfied its duties to notify and to assist pursuant to the VCAA is not required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. 

Relevant Law and Regulations; and Analysis

The Veteran seeks service connection based, primarily, on herbicide (Agent Orange) exposure on active duty in Thailand during the Vietnam era. 

Service connection may be granted for certain diseases, including ischemic heart disease, based on herbicide exposure during service in the Vietnam era. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 

Applicable law also provides that a Veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C.A. § 1116; see also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).

Exposure to Agent Orange has been noted to have occurred in various places, including Thailand as well as Vietnam.  The VA has determined that U.S. Air Force Veterans who served on Royal Thai Air Force (RTAF) bases at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides.  See http://www.publichealth.va.gov/exposures/agentorange/thailand.asp. Additionally, that website lists a recently declassified 1973 Department of Defense (DoD) report that contains evidence of significant use of herbicides on the fenced-in perimeters of military bases in Thailand. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

As noted, the Veteran contends that service connection for ischemic heart disease is warranted based upon Agent Orange exposure during active service.  Specifically, he has asserted that he was assigned as a photographer and lab specialist during his deployment in U-Tapao and that he was responsible for photographing any incidents (e.g., wrecks, dangerous situations, suicides, etc.) that occurred around the base, on the flight line, and/or at the bomb assembly areas (which were located on the side of the flight line/perimeter - beyond the "revetments") and then developing the film. See, e.g., May 2015 Affidavit from Veteran; see also Board Hearing Testimony.  The Veteran has stated that no grass or foliage grew in these areas.  He stated that he reported daily to a building approximately 100 feet from the perimeter of the base air and frequently walked to and from any incidents/matters that needed to be photographed.  

During his deployment in Takhli, he stated that he continued his duties as a photographer, but was also responsible for hand delivering strike zones from the F111A aircrafts on the flight line, approximately 100 feet from the perimeter.  He further reported that his sleeping quarters in both U-Tapao and Takhli were located near the perimeter as well (approximately 100 yards).  In sum, the Veteran stated, "Being on, near, or around the perimeter was simply routine during my time of active duty in both U-Tapao and Takhli - it was not off limits." See May 2015 Affidavit. 

As indicated above, ischemic heart disease (which includes coronary artery disease) is among the diseases listed for which service connection may be granted based upon herbicide exposure.  The Veteran has a current diagnosis of ischemic heart disease (diagnosed as coronary artery disease). See November 2010 Ischemic Heart Disease Disability Benefits Questionnaire.  As such, the central issue in this case is whether the evidence reflects exposure to herbicides during active service. 

The Board finds that, resolving all reasonable doubt in favor of the Veteran, the evidence reflects that he was exposed to herbicides while on active duty.

Lay assertions may serve to support a claim for service connection when they relate to the occurrence of events that are observable as a lay person or the presence of a disability or symptoms of a disability that are subject to lay observation. 38 U.S.C.A. § 1153(a) ; 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the existence of a disability even when not corroborated by contemporaneous medical evidence).

Service personnel records confirm that the Veteran served in the Air Force as a photo specialist in Thailand at U-Tapao RTAFB from October 1971 to October 1972, and at Takhli RTAFB from January 1973 to May 1973.  His DD Form 214 shows that he was awarded the National Defense Service Medal, the Air Force Good Conduct Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.  In October 2010, the National Personnel Records Center (NPRC) indicated that they were unable to determine whether or not the Veteran served in the Republic of Vietnam.  While these records do not indicate any service within the borders of Vietnam, the Board has considered whether the Veteran was exposed to herbicides while stationed in Thailand.

In so doing, the Board notes that VA's Compensation & Pension Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases.  Specifically, if the Veteran served in the U.S. Air Force in Thailand during the Vietnam era at certain Royal Thai Air Force Bases, including U-Tapao and Takhli, as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, then VA should concede herbicide exposure on a direct or facts found basis. See VA's Adjudication Procedures Manual, M21-1MR, Part IV.ii.2.C.10.q. 

If herbicide exposure is not conceded on a facts-found basis, the M21-1MR directs additional development, to include placing a "Memorandum for the Record" in the file and sending a request to the U.S. Army & Joint Services Records Research Center (JSRRC) for verification of herbicide exposure. Id.

In March 2011, the JSRRC coordinator issued a formal finding of a lack of information required to corroborate exposure to herbicides while serving in Thailand during the Vietnam era to send to JSRRC and/or the Marine Corps or National Archives and Records Administration. 

The Board acknowledges the development conducted by the RO and has considered the negative evidence as set forth above.  However, the evidence shows that the Veteran served in the Air Force and was stationed at U-Tapao and Taklhi Air Force Bases in Thailand during the Vietnam era.  Although the Veteran was not a security policeman or a dog handler, the Veteran's competent statements/testimony concerning his duties while stationed in Thailand, his MOS, and his performance evaluations (one of which confirms that he was involved in a B-52 crash investigation at U-Tapao RTAFB), all lead the Board to conclude that his duties likely involved extensive work on the flight line and/or at or near the perimeter of the air bases.  

On review, the Board finds that the evidence is at least in equipoise as to whether or not the Veteran was exposed to herbicides while stationed in Thailand and he currently has ischemic heart disease.  Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for this disability is warranted.


ORDER

Service connection for ischemic heart disease (diagnosed as coronary artery disease), to include as due to in-service herbicide exposure, is granted



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs