Citation Nr: 1551117 Decision Date: 12/07/15 Archive Date: 12/16/15 DOCKET NO. 13-20 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for coronary artery disease and, if so, whether service connection, to include as due to exposure to herbicides, is warranted. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1970. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. In August 2015, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. At such time, the Veteran submitted additional evidence with a waiver of agency of original jurisdiction (AOJ) consideration of the evidence. See 38 C.F.R. § 20.1304(c) (2015). Therefore, the Board may properly consider such newly received evidence. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. In a final September 1997 rating decision, the RO denied service connection for coronary artery disease. 2. Evidence added to the record since the final September 1997 RO denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for coronary artery disease. 3. Resolving all doubt in favor of the Veteran, the circumstances of his service at Udorn Royal Thai Air Force Base in Thailand brought him near the air base perimeter and, as such, herbicide exposure is conceded on a facts-found basis. 4. The Veteran has a current diagnosis of coronary artery disease, which is included in VA's definition of ischemic heart disease. 5. Coronary artery disease is presumed to be a result of exposure to herbicides. CONCLUSIONS OF LAW 1. The September 1997 rating decision that denied service connection for coronary artery disease is final. 38 U.S.C.A. § 7105 (West 1991) [(West 2014)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997) [(2015)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for coronary artery disease. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria for service connection for coronary artery disease have been met. 38 U.S.C.A. §§ 1110, 1116, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to reopen and grant the Veteran's claim of entitlement to service connection for coronary artery disease is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. The Veteran claims that his coronary artery disease is related to his exposure to herbicides during his military service. Specifically, he contends that he was exposed to herbicides at Cam Rhan Bay in the Republic of Vietnam while laid over on a transfer flight from Taiwan to Thailand as well as during his time at Udorn Royal Thai Air Force Base in Thailand from November 1968 to August 1969 as his work and barracks assignments placed him at the perimeter of the base. Therefore, the Veteran claims that service connection is warranted for coronary artery disease. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA regulations also provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam from January 9, 1962 and ending on May 7, 1975, or in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area which herbicides are known to have been applied from April 1, 1968, to August 31, 1971, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). VA's Compensation Service has determined that 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. As specifically relevant to this appeal, if a Veteran served during the Vietnam Era at the Udorn Royal Thai Air Force Base near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, VA has provided that herbicide exposure should be conceded on a direct/facts-found basis. See M21-1, Part IV, Subpart ii, 1.H.5.b. Based on presumed exposure to herbicides, presumptive service connection is provided for certain diseases, to include ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). See 38 C.F.R. § 3.309(e). However, the term does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note 2. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a rating decision dated and issued in September 1997, the RO denied service connection for coronary artery disease. At the time of such decision, the RO considered the Veteran's service treatment records, private treatment records from September 1992 to February 1997, and a June 1970 VA examination report. Based on such evidence, the RO determined that the Veteran had failed to submit a "well grounded claim" as his service treatment records were negative for complaint, treatment, clinical finding or diagnosis of chronic disease or disability of the cardiovascular system. The RO did acknowledge that the private treatment records reflected a current diagnosis of coronary artery disease; however, absent competent medical evidence that the currently diagnosed coronary artery disease was incurred in or aggravated by military service, or present to a compensable degree within one year of separation from active duty, the claim was not well grounded. The Veteran was advised of such decision and his appeal rights in September 1997. Thereafter, no evidence pertaining to the Veteran's claim for service connection for coronary artery disease was received prior to the expiration of the appeal period stemming from the September 1997 rating decision. 38 C.F.R. § 3.156(b). See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Board notes that the Veteran's service personnel records were added to the file in November 2010. Also November 2010, the Veteran submitted copies of service treatment records in support of his claim. In this regard, 38 C.F.R. § 3.156(c) provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). However, the service treatment records submitted by the Veteran are duplicative of those contained in the claims file and where considered in the September 1997 rating decision. The Veteran's personnel records, while not duplicative of the evidence previously considered, are not relevant as they are not related to a claimed in-service event, injury, or disease. They serve to further illustrate the Veteran's military occupational specialty (MOS) and duties while stationed in Thailand; however, the question of whether the Veteran was stationed in Thailand is not in dispute as his service treatment records showed treatment at Udorn Royal Thai Air Force Base. Accordingly, reconsideration of the Veteran's claim under 38 C.F.R. § 3.156(c) is not warranted based upon these service treatment and personnel records. No further communication regarding the claim of entitlement to service connection for coronary artery disease was received until July 2010 when VA received the Veteran's petition to reopen such claim. Evidence received since the September 1997 decision consists of the aforementioned service records, VA treatment records, Social Security Administration records, photographs of the Udorn Royal Thai Air Force Base, and statements and the August 2015 hearing testimony offered by the Veteran. The Board notes that the Veteran is capable of reporting observable symptoms of an injury or illness, as well as the length of time those symptoms have persisted. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Presuming the credibility of the Veteran's statements pursuant to Justus and, in light of the photographs of Udorn Royal Thai Air Force Base and August 2015 hearing testimony, the Board finds that the evidence received since the September 1997 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating the claim of service connection. See 38 C.F.R. § 3.156(a). In this regard, the Veteran's claim for coronary artery disease was previously denied as the record did not show complaint, treatment, clinical finding or diagnosis of chronic disease or disability of the cardiovascular system, or that such condition was incurred in or aggravated by military service, or present to a compensable degree within one year of separation from active duty. The photographs submitted by the Veteran suggest that the servicemen's barracks as well as the airstrip where many servicemen worked were near the perimeter of the Udorn Royal Thai Air Force Base. The Veteran also testified regarding his time spent along the perimeter of the Udorn Royal Thai Air Force Base, indicating that his barrack assignments were along the perimeter for the entirety of the time he was stationed in Thailand and that he worked repeatedly on the flight line which was also located along the perimeter. Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the claim of entitlement to service connection for coronary artery disease is reopened and the underlying claim of service connection is addressed below. In this regard, the Board notes that the RO reopened the Veteran's claim in the July 2011 rating decision and denied it on the merits. Moreover, the Board herein grants the Veteran's claim. Therefore, he is not prejudiced by the Board's actions herein. See Bernard v. Brown, 4 Vet. App. 384, 390-92 (1993). As relevant to the reopened claim for service connection, the Board initially notes that post-service VA treatment records document that the Veteran has been diagnosed with coronary artery disease, which is included in VA's definition of ischemic heart disease. Therefore, the primary question in this case is whether the Veteran was exposed to herbicides during his active service. There is no evidence that the Veteran served in the Republic of Vietnam or Korea during the specified periods. However, he asserts that he was exposed to herbicides while supporting the conflict in Vietnam at the Udorn Royal Thai Air Force Base in Thailand. In this regard, his personnel records reflect that he was stationed in Thailand from November 1968 to June 1969. In addition, service treatment records indicate the Veteran was treated for various complaints at the dispensary located at Udorn Royal Thai Air Force Base in Thailand during the requisite period. The Board notes that the Veteran's MOS was environmental systems specialist or mechanic. The record contains statements from the Veteran indicating that his MOS brought him in regular contact with the perimeter of the base. In addition, the Veteran testified as to this fact before the Board in August 2015. Furthermore, in November 2010 and August 2015 statements, the Veteran described how the perimeter and flight line would be sprayed during the day and then he and his fellow servicemen would work on the planes along the flight line and maintenance shops at night. Additionally, in August 2015, he provided photographs of Udorn Royal Thai Air Force Base. The Veteran marked where his barracks were located for the entirety of his tour in Thailand as well as where he worked along the flight line and the maintenance shops. In his August 2015 testimony, the Veteran testified that he worked on the oxygen pressurization systems for the F-4, C-130, and 141 planes. He indicated that the 141 planes were too large to come down the entire airstrip, so they would have to be worked on closer to the perimeter. In addition, the Veteran testified that his barracks were located against the perimeter and that "a forest" was naturally situated next to the barracks, but that it was cleared and kept clear of foliage. Finally, the Veteran testified that while he did a good amount of walking while stationed in Thailand, his main form of transportation on the base was riding in a bus which often took him along the perimeter. In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, the Veteran is competent to report that his duties took him to the perimeter of the base, and his reports are consistent with the circumstances of his service as an environmental systems specialist or mechanic. He has been consistent in his statements and there is no explicit evidence to contradict his reports. The Board finds the Veteran's statements to be credible as they are consistent with the evidence of record. Moreover, the Board has no reason to doubt the veracity of the statements. Therefore, the Board finds that the Veteran has competently and credibly reported that his duties on the flight line and barrack assignments brought him in contact with the perimeter of the base. On this evidence, and utilizing the benefit of the doubt doctrine outlined in Gilbert, the Board concedes herbicide exposure on a facts-found basis and consistent with the policy outlined in M21-1, Part IV, Subpart ii, 1.H.5.b. Therefore, as the Veteran was exposed to herbicides coincident with his service at Udorn Royal Thai Air Force Base in Thailand and has a current diagnosis of coronary artery disease, which is included in VA's definition of ischemic heart disease, such is presumed to be a result of exposure to herbicides. Therefore, service connection for coronary artery disease is warranted. 38 U.S.C.A. §§ 1110, 1116, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. ORDER New and material evidence having been received, the claim of entitlement to service connection for coronary artery disease is reopened. Service connection for coronary artery disease is granted. ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs