Citation Nr: 1335114 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 12-35 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for ischemic heart disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, in which the RO denied entitlement to service connection for ischemic heart disease. FINDING OF FACT There is no credible evidence that the Veteran was exposed to herbicide agents during service, and no competent evidence indicating that the Veteran's ischemic heart disease had its onset in service or within one year of service discharge, or is otherwise related to his active military service. CONCLUSION OF LAW The Veteran's ischemic heart disease was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been incurred in service, including from herbicide exposure in Vietnam or Thailand. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The duty to notify requires VA to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Notice must be provided before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board recognizes that an August 2011 letter to the Veteran failed to satisfy the requirements for notifying him of the information or evidence necessary to substantiate the claim, and indicating which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. However, the Board finds no prejudice in this case resulting from the inadequate August 2011 notice letter. In this regard, the Board notes that the Veteran was issued another letter in July 2012 in regard to a claim of entitlement to service connection for diabetes mellitus, and such letter fully satisfied VA's duty to notify on that claim. Although that letter did not refer to the earlier claim of service connection for ischemic heart disease, it did fully inform the Veteran as to the type of information that was needed to establish that he was exposed to herbicides in either Vietnam or Thailand, which is the same information that would have best served to establish entitlement to service connection for ischemic heart disease, as discussed below. The Board finds this particularly significant as it is clear from correspondence that the Veteran and his representative had actual knowledge that establishing exposure to herbicides by either showing his presence in Vietnam or showing exposure in Thailand was information that could serve to substantiate his claims. Of note, the letter indicated that the Veteran should provide any evidence indicating that he served within or visited Vietnam, and an explanation of when, where, and how he may have otherwise been exposed to herbicides. He was specifically asked to provide as much description of such exposure as possible. In short, the Board finds no prejudice resulting from the earlier inadequate letter, as the July 2012 letter explained the type of information and evidence that would best serve to substantiate a claim based on herbicide exposure, and the Veteran demonstrated actual knowledge of how such information and evidence would be applicable to the claim on appeal. Also, as the claim of service connection for ischemic heart disease was subsequently readjudicated in a December 2012 Statement of the Case, there was no prejudice resulting from the error in timeliness of the notice. The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency. VA has satisfied its duty to seek relevant records. VA has obtained and associated service treatment records with the file. The record does not indicate and the Veteran has not notified VA that additional VA medical records, private medical records, or social security medical records exist. In addition, VA made attempted to verify the Veteran's claimed service in Vietnam, and no such record of such service was available. The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required). When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinion must be adequately supported and explained. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the Veteran has not been afforded a VA medical examination, however, under these circumstances VA is not required to provide a medical examination. VA is required to provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The record contains no credible evidence of any injury or event in-service that may have led to the Veteran's current ischemic heart disease, and no evidence of related symptoms or diagnoses during service. In addition, there is no credible lay evidence or competent medical evidence otherwise suggesting his current disorder is related to service. As a result, the Board concludes that the criteria for obtaining a VA examination or opinion is not met. II. Service Connection for IHD The Veteran is seeking service connection for ischemic heart disease (IHD). He contends that he was ordered for temporary duty to the Republic of Vietnam for one week in July 1968, and that he worked around the perimeters of Royal Thai Air Force Bases while stationed in Thailand. As a result, he claims that he should be given the presumption of exposure to herbicides. Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. To establish entitlement to service-connected compensation benefits, a claimant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Pertinent VA law and regulations provide that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a) (6)(iii). Those diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Ischemic heart disease (IHD) is one of the listed diseases. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. ("M21-1MR"). Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identifies several bases in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). Turning to the Veteran's allegation that he spent a week in the Republic of Vietnam on temporary duty, the Board finds that there is no credible evidence to support his assertion. In this regard, the Board notes that his bare assertion lacks any specific detail regarding his time in the country. In the August 2011 Notice Letter, VA requested the Veteran to provide any evidence regarding his temporary duty in Vietnam. As discussed in detail above, the subsequent July 2012 letter also invited the Veteran to submit any evidence establishing service within Vietnam. That letter also encouraged the Veteran to provide as much description as possible regarding the circumstances of his alleged exposure. However, the Veteran has simply alleged that he spent a week there, without providing any explanation as to why he was ordered to Vietnam or any detail of his time there. Consequently, the Board finds the Service Department records to be far more credible than the Veteran's bare assertion. Here, the Service Department Records do not support the Veteran's claim, as there is no record of his service in Vietnam. Consequently, the Board finds that the presumption of herbicide exposure due to service within the Republic of Vietnam is unavailable. Next the Board turns to the Veteran's assertion that he served around the perimeter of the Royal Thai Air Force Bases in Korat and Takhli. Service records are consistent with the Veteran's assertion that he served at both Korat and Takhi Air Force Bases. However, the Veteran's MOS indicates that he served as an Airplane Mechanic and this MOS is not among those noted by VA and is not consistent with service near the perimeter. As with the Veteran's assertion that he served in Vietnam, here he has provided no more than a bare assertion that he served around the perimeter of these bases. The Veteran has provided no explanation or detail as to his service that would have placed him around the perimeters of these bases. He did indicate that he worked on aircraft, which is consistent with his MOS, but again, he provided no explanation or detail as to how this would have placed him around the perimeters of these basis. In addition, the record provides no additional evidence of service around the perimeter, such as performance evaluations. The Board again notes that in the July 2012 notice letter, VA requested that the Veteran provide any evidence or details regarding his exposure to herbicides. The letter specifically stated that "[a]ny person making a statement should provide as much description of the exposure as possible...." Although this particular notice letter was sent regarding the Veteran's service connection claim for diabetes, the Board again emphasizes that the Veteran clearly had actual knowledge that his claim of service connection for ischemic rested on establishing exposure to herbicides. For this reason, the Veteran was properly informed that he should provide as much evidence and detail as possible with respect to his claims resulting from alleged herbicide exposure. Similarly to his allegations regarding service in Vietnam, the Board finds the lack of any detail with these assertions to make them less credible. Due to the Veteran's inconsistent MOS and the lack of any additional evidence, the Board finds that weight of the evidence supports a finding that the Veteran was not exposed to herbicides while stationed in Thailand. The provisions for presumptive service connection, however, do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that his exposure to herbicides led to the development of the claimed disability after service. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The Veteran does have a current diagnosis of IHD, satisfying requirement (1) of service connection. However, a review of the Veteran's service treatment records show no complaints or treatment for IHD or any other heart condition. In addition, there is no indication, in either the form of medical records or lay evidence that the Veteran's heart disorder manifested within a year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. There is also no credible or competent evidence otherwise showing that the claimed IHD is related to service, to include herbicide exposure therein. As a result, direct service connection cannot be granted. In sum, the record does not support the Veteran's assertions regarding any actual exposure to herbicides, and service connection on a presumptive basis is not warranted. Additionally, the evidence of record does not show IHD or any symptoms of a heart disorder during service or for years thereafter, nor does it show that the Veteran's IHD is otherwise related to his period of service. The evidence of record is not in relative equipoise. Accordingly, as the preponderance of the evidence is against the claims for entitlement to service connection for IHD, the appeal must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for ischemic heart disease is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs