Citation Nr: 1333533 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 12-12 694 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for ischemic heart disease, claimed as coronary artery disease (CAD), to include as due to in-service exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from July 1953 to March 1959, and in the U.S. Navy from August 1960 to September 1974. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2011 rating decision in which the RO denied the claim on appeal. The Veteran filed a notice of disagreement (NOD) in November 2011. After a May 2012 statement of the case (SOC), the Veteran perfected an appeal by filing a substantive appeal, VA Form 9, later in May 2012 in which requested a videoconference. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise noted herein. In May 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript the hearing is contained in the Virtual VA folder. In September 2013, the Vice Chairman of the Board, on her own motion, advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012) (2012). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although the Veteran did have a period of duty or visitation in the Republic of Vietnam during the Vietnam Conflict, there is credible evidence indicating that that he Veteran served aboard the U.S.S. Oklahoma in the waters off of the Republic of Vietnam, that the ship ran aground during his tour of duty, and that he may have gone ashore on one or more occasions. 3. The Veteran has CAD, a form of ischemic heart disease, which is among the diseases recognized by the VA Secretary as etiologically-related to herbicides exposure. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for CAD, an ischemic heart disease, are met. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), (e) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the claim on appeal, the Board finds that all notification and development action needed to render a fair decision on the claim (to include with respect to the Board hearing, pursuant to this aspect of the appeal has been accomplished. Background Initially, the Board notes that the National Personnel Records Center (NPRC) has been unable to confirm the Veteran's military service in the Army and those records were presumed to have been destroyed in a fire. The Veteran's service personnel records show that he was awarded the Vietnam Service Medal. He served aboard the USS Oklahoma City during multiple Vietnam operations from December 1968 to April 1969. An October 2009 statement from the National Archives and Records Administration summarizes the Navy Deck Logs of the USS Oklahoma from December 1968 to April 1969 and reports that the USS Oklahoma did not dock, anchor or moor in Vietnam. That vessel was in DaNang Harbor for many dates during that time, which could be considered "brown water." Also, the records showed "helo flights" with passengers and destinations, which was rarely found in Deck Logs. Deck Logs of the USS Oklahoma show that in the month of January 1969 that ship launched a "whaleboat" and that a "body [was] placed in whaleboat" and later that day the "body [was] on board." Deck Logs of the USS Oklahoma show that in the month of January 19698 that ship ran aground. The service treatment records (STRs) of the Veteran's service in the Navy show that he had complaints of chest pain associated with acute upper respiratory infections (URIs) and reflux esophagitis. On examination in July 1974 for transfer to the reserves was negative but an EKG was borderline, revealing a left axis deviation. In a July 1993 rating decision, the RO granted service connection for gastroesophageal reflux disease (GERD), bilateral hearing loss, and tinnitus, each effective March 27, 1992 (date of receipt of original claim for VA compensation). In April 2005 the Veteran claimed, inter alia, service connection for hypertension and a heart condition. By letter of July 25, 2005, the Veteran was notified of a rating decision that month in which the RO denied service connection for CAD and hypertension. The RO found that, while the Veteran's STRs showed that he had a borderline EKG tracing with a left axis deviation there was no treatment or diagnosis of CAD during service. VA treatment records note a history of CAD and that he was hospitalized for atrial fibrillation in August 2001. In a March 2009 rating decision, the RO denied service connection for diabetes mellitus, type II. By VA Form 21-4138, Statement in Support of Claim, in March 2009 the Veteran filed an NOD later in March 2009, stating that he had been aboard the USS Oklahoma near DaNang, South Vietnam which had been in the coastal waters of South Vietnam. Also, in the fall of 1968 he had helped with the removal of a body of a U.S. Marine which had been found near a beach south of DaNang and he believed that this would be corroborated by the ship's logs. Subsequently, and before an SOC was issued, in a November 2009 rating decision, the RO granted service connection for diabetes mellitus, type II, because the Deck Logs from the USS Oklahoma City, a vessel upon which the Veteran served, showed it was in the Gulf of DaNang in the inland waters of Vietnam and exposure to Agent Orange was conceded. An August 2013 memorandum notes that the Veteran's claim file was reviewed in accordance with Nehmer v. U.S. Department of Veterans Affairs, which required payment of retroactive benefits to certain Nehmer class members. The case was identified as a potential Nehmer-class case based on the addition of ischemic heart disease to the list of diseases presumptively associated with exposure to certain herbicide agents. It was found that the Veteran did not have service in the Republic of Vietnam, as defined by law. In the absence of any conclusive evidence that he served in the Republic of Vietnam, or was otherwise exposed to herbicides used in Vietnam, further review under Nehmer was not required. If VA received any documentation that confirmed that he performed duty in the Republic of Vietnam, entitlement to benefits under the Nehmer court order would be reconsidered. STRs did not show that he was treated in Vietnam. The Personnel Information Exchange System (PIES) response of July 2007 showed that it could not be determined whether or not he had served in the Republic of Vietnam. STRs and the PIES request showed that he had served aboard the USS Oklahoma City. This was not one of the ships that had been verified to have docked at or was in the inland waterways of Vietnam. A statement from a service comrade, received in January 2008, indicated that he had served with the Veteran on the USS Oklahoma City but did not mention that the Veteran got off that ship or stepped foot in Vietnam. Navy deck logs were obtained but did not specifically show that the Veteran disembarked from that ship or that the ship docked in Vietnam. In sum, the evidence did not show that the Veteran had in-country Vietnam service. A January 2011 RO letter informed that Veteran that his claim for service connection for heart disease had been reviewed in accordance with the holding in Nehmer v. U.S. Department of Veterans Affairs but there was no evidence of his service in the Republic of Vietnam, as defined by law and, thus, further review under Nehmer was not required. In February 2011 the Veteran filed what he characterized as an NOD with the January 2011 letter informing him of the Nehmer review. The Veteran's February 2011 letter was apparently construed as an application to reopen the claim for service connection for CAD, inasmuch as in April 2011 the RO sent the Veteran a letter explaining the reason for his prior denial of service connection for CAD and what new and material additional evidence was needed to substantiate the claim, what was needed for claim substantiation, and the respective evidence gathering duties. In April 2011, the Veteran formally requested that his claim for service connection for ischemic heart disease be reconsidered. In May 2011, the RO sent the Veteran a letter explaining what was needed to corroborate the Veteran's exposure to herbicides in Vietnam. The Veteran has appealed an October 2011 rating in which the RO denied service connection for CAD. During the May 2013 Board hearing, the Veteran testified that while stationed aboard the USS Oklahoma he had been "on the shore for a short period of time." See page 4 of the transcript. He indicated that his ship had run aground about 1,500 yards off the coast of South Vietnam, in the winter of 1968, but that he had not been aboard that ship when it was docked at DaNang Harbor. Page 5. He testified that he had gone ashore on one occasion with four other men and had helped retrieve the body of a dead U.S. Marine and transport the body back to his ship. Page 7. On other occasions his ship had been in close proximity to the coast of Vietnam. Page 7. Legal Authority Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." If not established, a showing of continuity of symptoms after service discharge is required. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Certain conditions, such as coronary artery disease, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. 38 C.F.R. § 3.307(a)(6)(iii) states that 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. The VA Adjudication Procedures Manual (M21-1 MR) explains that for service connection under 38 C.F.R. § 3.307(a)(6) and 3.309(e), service in the Republic of Vietnam ... means [service in the Republic of Vietnam] or its inland waterways, or service in other locations if the conditions of service involved duty or visitation in the [Republic of Vietnam]." M21-1 MR, pt. IV., subpt. ii, ch.1, sec. h.28a (July 20, 2009). However, M-21-1 MR, pt. IV., subpt. ii., ch. 1, sec. H.28.h, provides that service aboard a ship that anchored in an open deep-water harbor, such as DaNang, along the Republic of Vietnam coast does not constitute inland water service or qualify as docking and is not sufficient to establish presumptive exposure to herbicides. Evidence of shore docking is required in order to concede the possibility that the veteran's service involved duty or visitation in the Republic of Vietnam. The Federal Circuit has found that VA's interpretation as requiring physical presence within Vietnam, or the territorial waters of Vietnam in order to be entitled to the presumption of herbicide exposure is not plainly erroneous or inconsistent with the language of section 3.307(a)(6)(iii). Haas v. Peake, 525 F.3d 1168 (Fed.Cir. 2008). It follows that VA's interpretation of "inland waterways" to expressly exclude DaNang Harbor as an inland waterway, absent evidence of docking, is reasonable. If a veteran was exposed to an herbicide agent during active military service, ischemic heart disease, including coronary artery disease, will be presumed to have been incurred in service, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Effective August 31, 2010, ischemic heart disease was added to the list of diseases subjective to presumptive service connection for recognized by VA's Secretary as presumptively due to exposure to herbicide in Vietnam. See 38 C.F.R. § 3.309(e) (which states that ischemic heart disease includes atherosclerotic cardiovascular disease including coronary artery disease); see also 75 Fed.Reg. 53202, 53216 (August 31, 2010). In adjudicating a claim for VA benefits, VA is responsible for 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Analysis It is undisputed that the Veteran now has CAD. There is no evidence of any form of ischemic heart disease during service, nor does the Veteran expressly contend as much. The simple fact that the Veteran had an abnormality at the time of an in-service EKG does not establish that he had any actual form of heart disease. As to whether service connection may be granted on the basis incurrence during service or the manifestation of CAD within the first year after service discharge in 1974, considering all the evidence, including that CAD first manifested many years after service, and the absence of any competent medical evidence that associates his CAD to an injury, disease, or event of service origin, service connection is not warranted on this basis. With respect to matter of the Veteran's entitlement to service connection based on alleged herbicides exposure, if the Veteran actually stepped foot on the soil of South Vietnam during the Vietnam Conflict, service connection for CAD is warranted because it is a form of ischemic heart disease for which there is a life-time presumption of service connection for those who were actually in South Vietnam during the Vietnam Conflict. However, the fact that the Veteran received the Vietnam Service Medal does not establish that he set foot in-country in the Republic of Vietnam during the Vietnam Conflict. On the other hand, the Veteran has alleged that he was in the coastal or territorial waters of Vietnam, having been on a ship that was in DaNang Harbor, although it did not dock at DaNang. This has been confirmed. However, he has specifically testified that he actually set foot on Vietnam soil. In this regard, the Veteran's testimony is in accord with the Deck Logs of the USS Oklahoma City. He testified that he went ashore at South Vietnam to retrieve a soldier's body, and the Deck Logs seem to confirm that such an event occurred. Similarly, although unrelated to his presence on the soil of South Vietnam, he testified that the ship ran aground along the South Vietnamese coast, and the Deck Logs also confirm this. Thus, the Deck Logs serve to add greater probative value to the Veteran's testimony and, equally important, there is nothing in the STRs, service personnel records, or Deck Logs with contradicts or refutes the Veteran's statements and testimony. Accordingly, with resolution of all reasonable doubt in the Veteran's favor, the Board finds the Veteran's testimony, which appears to be consistent with other evidence on file, to be persuasive evidence that he set foot on the soil of South Vietnam during the Vietnam Conflict-and thus, "in country" Vietnam service for adjudication purposes. [Interestingly, the Board points out that the RO has essentially conceded the Veteran's in-service Agent Orange exposure with the award of service connection for type II diabetes, another disease subject to presumptive service connection on the basis of such exposure, although noted to be under a "broader" standard.] As such, he is entitled to the life-time presumption of service connection for ischemic heart disease, which in this case is his CAD. Thus, service connection for CAD is warranted. As a final point, the Board notes that the Veteran and his representative have requested that service connection be granted retroactively. As to the effective dates for awards of service connection for diseases presumed to have been caused by herbicide exposure, a limited exception to the statutory provisions governing the assignment of effective dates was created by the Nehmer line of cases: the final Stipulation and Order in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I), the specific guidance describing the Stipulation and Order setting forth VA's ongoing responsibilities for further rulemaking and disability payments to class members provided in Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II), the class action Order in Nehmer v. United States Veterans Administration, No. CV-86-6160 TEH (N.D. Cal., Dec. 12, 2000), and Nehmer et. al. v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). In August 2003, VA published regulations to implement these orders. A Nehmer class member is defined as a veteran who has a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i). However, the effective date for the award of service connection is a downstream element which must first be determined and adjudicate by the RO. See Collaro v. West, 136 F.3d 1304, 1038 (Fed.Cir. 1998) (disagreement with any of the five elements (including effective date) of a service connection claim creates "an issue" which is subject to appeal); see also Dingess v. Nicholson, 19 Vet. App. 473, 485 (2006). Accordingly, the matter of the proper effective date for service connection for CAD is not before the Board. Should the Veteran disagree with the effective date assigned by the RO he may perfect an appeal as to that matter. ORDER Service connection for CAD is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs