Citation Nr: 1331448 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 12-32 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for cardiovascular disease, to include ischemic heart disease due to herbicide exposure. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran had active service from July 1969 to May 1971. This matter comes to the Board of Veterans' Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran initially requested a hearing at the RO but withdrew his request in June 2013. The Veteran's virtual VA file has been reviewed. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam between January 9, 1962, and May 7, 1975, and is not presumed to have been exposed to herbicides. 2. A cardiovascular disease was not first manifested on active duty service or within the first post-service year, and is not attributable to active military service. CONCLUSION OF LAW A cardiovascular disability was not incurred in or aggravated by service and neither cardiovascular-renal disease nor ischemic heart disease may be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). A December 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, Vet center records and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination records were not obtained as they were formally found to be unavailable as they had been destroyed. 38 C.F.R. § 3.159 (c)(2). The Veteran was not examined by VA in conjunction with the claim of service connection for ischemic heart disease; however, no such examination is necessary in this case because the evidence of record does not indicate that the disability or symptoms of the disability may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." Finally, if the first two requirements are met, VA "shall accept the veteran's evidence as 'sufficient proof of service connection,' even if no official record of such incurrence exists." Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304. Competent evidence of a current disability and of a nexus between service and a current disability is still required. Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post- service development of a presumptive disease, such as cardiovascular-renal disease to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. See 38 U.S.C.A. § 1101(3), 38 C.F.R. §§ 3.307, 3.309(a). However, as there is no evidence of cardiovascular-renal disease within one year of exit from service, in May 1971, service connection as a chronic disease is not warranted. Service connection on a direct basis is not warranted. There is no evidence, nor does the Veteran contend, that a cardiovascular disease, or symptoms thereof, began in service. The May 1969 entry examination was normal. The Veteran was noted to be overweight but the reviewing officer made a specific finding of no endocrinopathy and no familia obesity. During service there were no complaints or treatment for heart conditions or symptoms thereof. The May 1971 exit examination was normal. There is no evidence or contentions that the Veteran's heart disease had its onset in service. If a Veteran was exposed to Agent Orange during service, certain listed diseases, including ischemic heart disease, are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6), 3.313(a). VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a Veteran must have actually been present at some point on the landmass or the inland (brown) waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Blue water service, which is service in the open offshore waters of Vietnam, does not qualify for the presumption. The Veteran contends that he was stationed on the USS Towers, and that the ship was in Vietnam. Personnel records show that the Veteran served aboard the USS Towers beginning October 1969. Service department records show that the USS Towers was in the official waters of the Republic of Vietnam from April 21, 1971 to May 19, 1971, however the record provides no conclusive proof of in country service, to include in-country Vietnam or the inland waterways. The Veteran claims that his Vietnam Service Medal with Bronze Star establishes that he served in Vietnam. Receipt of the Vietnam Service Medal does not establish that the Veteran physically served in or visited the Republic of Vietnam or that he had service on the inland waters of Vietnam. The December 2010 development letter informed the Veteran that if he was stationed aboard a ship (which he was) then he must have disembarked in Vietnam in order to avail himself of the presumption. In response the Veteran submitted a list of vessels he reports were in Vietnam, including the USS Towers (DDG-9), which he was aboard. VA has identified that the USS Towers (DDG-9) operated on Saigon River and Rung Sat Special Zone (inland waterways) during July 1966. However, the Veteran was not assigned to the USS Towers during that time period. With respect to this claim, although provided the opportunity multiple times, the Veteran did not disembarking in Vietnam, or otherwise being present on the landmass or inland waters of Vietnam in connection with his claim for ischemic heart disease. The Board notes that at a March 2011 VA PTSD examination, in connection with a separate claim, the Veteran reported being assaulted by American soldiers after leaving a bar while on shore when serving in Vietnam. However this statement is unsupported by the evidence of record which indicates treatment in 1970 for a wound, and there is no indication that the ship was in the waters of the Republic of Vietnam at that time. NPRC indicated that the ship was in the official waters of Vietnam from April to May 1971. As such, the Veteran's report does not establish his presence in the country of Vietnam. Therefore, the Board finds that this statement is not consistent with the circumstances of such service. Moreover, the evidence of record does not contain any diagnosis of ischemic heart disease. The record shows diagnoses of hypertension and coronary artery disease. In sum, there is no evidence or contention that the Veteran's cardiovascular disease began in service or within one year of service. The Veteran contends he was aboard a ship in Vietnam and is entitled to presumptive service connection for ischemic heart disease. Service and personnel records demonstrate that the Veteran was stationed aboard the USS Towers when it was in the official waters of the Republic of Vietnam between April 21, 1971 and May 19, 1971. However, being in the official waters of the Republic of Vietnam does not establish presumptive exposure to herbicides. The Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168. As the Veteran was not in the Republic of Vietnam, he is not presumed to have been exposed to Agent Orange, and service connection for ischemic heart disease on a presumptive basis, or any other basis, is not warranted. ORDER Service connection for ischemic heart disease, due to with herbicide exposure, is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs