Citation Nr: 1539712 Decision Date: 09/16/15 Archive Date: 09/24/15 DOCKET NO. 14-08 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for ischemic heart disease (IHD), to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran's claim was also denied in July 2012 and November 2012 rating decisions. In October 2012, the Veteran submitted a statement that appeared to state "I disagree with your decision that my ischemic heart disease is not related to my military service in Southeast Asia." As the Veteran did not identify a specific rating decision, and as the statement was received within one year of the December 2011 rating decision that denied the Veteran's claim for entitlement to service connection for ischemic heart disease, the Board will construe the October 2012 Veteran statement as a timely Notice of Disagreement to the December 2011 rating decision and this is therefore the rating decision on appeal. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.302(a) (2015). The Veteran testified at a July 2015 Board hearing before the undersigned Veterans Law Judge in Huntington, West Virginia. A transcript of the hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Also, a review of the electronic records maintained in Virtual VA was conducted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, while stationed at Korat Royal Thai Air Force Bases (RTAFB), the Veteran served near the air base perimeter and in-service herbicide exposure is conceded on a direct or facts found basis. CONCLUSION OF LAW The criteria for entitlement to service connection on a presumptive basis for IHD have been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Considering the favorable outcome detailed below, VA's fulfillment of its duties to notify and assist need not be addressed at this time. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2015). If a Veteran was exposed in-service to certain herbicide agents (e.g., Agent Orange), service connection for certain diseases, including ischemic heart disease, will be presumed. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). VA previously established a procedure for verifying a Veteran's exposure to herbicides in Thailand during the Vietnam Era that was in effect during the pendency of the Veteran's appeal. See VA Adjudication Procedures Manual Rewrite, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.q (herein M21-1MR); Compensation and Pension Service Bulletin, May 2010. VA "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," as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." See Compensation and Pension Service Bulletin, May 2010. The May 2010 Compensation and Pension Service Bulletin stated that "[s]pecial consideration of herbicide exposure on a facts found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases" and that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." Under the procedures outlined in the M21-1MR, if a Veteran served at certain RTAFBs, including Takhli and Korat RTAFBs, during the Vietnam Era as a 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 herbicide exposure should be conceded on a direct or facts-found basis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.q. The Board notes that recently (in August 2015), the section in the M21-1 (now labeled without the previously included "-1MR") relating to claims based on herbicide exposure in Thailand during the Vietnam Era was updated, to include the removal of language relating to "otherwise near the air base perimeter" in the context of conceding herbicide exposure. See M21-1, Part IV, Subpart ii., Chapter 1, Section H.5. The Board notes that the M21-1 is not binding upon the Board. As provided by 38 C.F.R. § 19.5 (2015), the Board, in its consideration of appeals, "is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs. The Board is not bound by Department manuals, circulars, or similar administrative issues." See also 38 U.S.C.A. § 7104(c) (West 2014). While acknowledging the changes discussed above from the M21-1MR to the M21-1, the Board finds the previous version of the M21-1MR to provide probative and persuasive information regarding herbicide exposure in Thailand. Analysis As noted above, for a Veteran who has been exposed to herbicides in-service, service connection will be presumed for certain diseases, to include IHD. The evidence of record indicates that the Veteran has a current diagnosis of IHD. See September 2011 VA Form 21-0960A-1 (Ischemic Heart Disease (IHD) Disability Benefits Questionnaire) (noting that the Veteran had IHD). With regard to in-service herbicide exposure, the Veteran contends that he was exposed while stationed in Thailand during the Vietnam Era. The Veteran's personnel records reflected that the Veteran was stationed in Thailand from June 1970 to June 1971. See AF Form 7 (Airman Military Record). The chronological listing of service contained in the Veteran's personnel records noted that the Veteran arrived at Takhli RTAFB in June 1970 and that his duty title was Aircraft Mechanic. The chronological listing of service also noted that the Veteran arrived at Korat RTAFB in December 1970 and that his duty title was Assistant Crew Chief. The Veteran's DD 214 noted his specialty title to be Aircraft Maintenance Specialist. A performance report for the time period of May 1970 to March 1971 noted a location of Korat RTAFB. The Veteran's current duty was listed as Assistant Crew Chief and the performance report stated under the duties section "[a]ccomplishes general aircraft maintenance and prepares the aircraft for specialist work...Performs preflight and postflight inspections, services the aircraft systems and monitors Phase inspections...Launches and recovers aircraft." Under the facts and specific achievements section, it was noted that "[t]hese duties were performed in Southeast Asia." In an April 2012 statement, the Veteran stated that "enclosed is a over head view of Korat Royal Thai A.B. showing runway - taxi-way and trim pad area indicated by arrow near the perimeters of the air base" and that "when and eng[ine] change was completed or a certain phase inspection deemed it necessary we towed the [aircraft] to these areas to perform necessary maint[enance] or adjustments." The Veteran also referenced that it was common to go on detail to Camp Friendship, a US Army base, "located next to us" to obtain ice to bring back to Korat RTAFB. The overhead photograph referenced by the Veteran is of record (received April 2012) and includes a notation, presumably from the Veteran, identifying the location of the trim pad area. At the July 2015 Board hearing, the Veteran described his work as crew chief as "[a]nything from doing pre-flights, post-flights -- make sure it's fueled, bombs loaded and of course sending and take-off and recover." July 2015 Board Hearing Transcript, page 4. The Veteran's representative asked him "the area that you worked in while in Thailand, was any of those areas near the perimeter of the base," to which the Veteran replied "[y]es, they was. Of course, the flight line is." Id. at page 5. The Veteran further stated that "also, when we took a plane to trim pad, it was at the complete end of the runway at the perimeter, is where we trimmed the engines." Id. The Veteran also stated that he worked on equipment that was near the perimeters and referenced Camp Friendship and that he "was back and forth to that base also, at the icehouse especially." Id. The Veteran provided further testimony regarding the location of the flight line, runway and trim pad and their proximity to the air base perimeter. Id. at pages 8-10. Regarding trim pads, the Veteran stated that "when you...do an engine change, you take it down, anchor it all down, make sure you put it in afterburner and it throttles up." Id. at page 10. The Veteran further referenced that the use of afterburner could not be done in the open and that is why it was done out towards the perimeter of the air base. Id. at page 13. Initially, the Veteran's service between June 1970 and June 1971 at Takhli and Korat RTAFBs was during the Vietnam Era. See 38 C.F.R. § 3.2(f) (2015). Also, while the evidence indicated that the Veteran was stationed at Takhli RTAFB, as described above, the majority of the Veteran's statements regarding his service near the air base perimeter focused on his time at Korat RTAFB. Next, while the Veteran's specialty title of Aircraft Maintenance Specialist (as noted on his DD 214) and duty title of Assistance Crew Chief (as noted in personnel records discussed above for his service at Korat RTAFB) are not obviously consistent with exposure to the air base perimeter, he has provided competent and credible statements that indicated his work duties required him to serve near the air base perimeter. The Veteran's description of his work duties appears to be consistent with the evidence of record, to include his performance report dated May 1970 to March 1971 (encompassing part of time period that he was stationed at Korat RTAFB during the Vietnam Era). As there is no evidence of record to contradict the Veteran's statements, and resolving reasonable doubt in the Veteran's favor, the Board concludes that while stationed at Korat RTAFB, the Veteran served near the air base perimeter. As such, with consideration to the prior version of the M21-1MR discussed above that was in effect during the pendency of the Veteran's appeal, in-service herbicide exposure is conceded on a direct or facts found basis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.q. As the Board has concluded that the Veteran was exposed to herbicides in-service and that he has a diagnosis of IHD, the criteria for entitlement to service connection on a presumptive basis for IHD have been met and the Veteran's claim is granted. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). ORDER Entitlement to service connection for IHD is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs