Citation Nr: 1622566 Decision Date: 06/06/16 Archive Date: 06/21/16 DOCKET NO. 12-06 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a heart disability, to include ischemic heart disease, specifically manifested by coronary artery disease, status post coronary artery bypass graft, and as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1947 to April 1967. This appeal is before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The case has since been returned to the RO in Houston, Texas. The issue of entitlement to service connection for arteriosclerotic heart disease was originally denied in an unappealed August 1978 rating decision. New and material evidence would ordinarily be required to reopen this claim. 38 U.S.C.A. § 5108 (West 2014). However, VA regulations effective August 31, 2010, were revised to include ischemic heart disease as a presumptive disease for service connection based upon herbicide exposure. See 38 C.F.R. § 3.309(e) (2015); see also 75 Fed. Reg. 53,202 (Aug. 31, 2010). The Board notes that "[w]hen a provision of law or regulation creates a new basis of entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit, an applicant's claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation." See Routen v. West, 142 F.3d 1434, 1441 (citing Spencer v. Brown, 17 F.3d 368, 373 (Fed. Cir. 1994)). Accordingly, the Board will adjudicate the claim on a de novo basis without requiring new and material evidence to reopen. The Board notes that the Veteran requested a Travel Board hearing in his February 2012 VA Form 9. However, he withdrew his request for a hearing in August 2014 and again in October 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran did not sustain arteriosclerosis (coronary heart disease and/or ischemic heart disease), in service or exhibit chronic in-service or continuous post-service symptomatology of such, nor did it manifest to a compensable degree within one year of separation from service. 2. The Veteran does not have confirmed duty or visitation in the Republic of Vietnam or other credible evidence of exposure to an herbicide agent in service. CONCLUSION OF LAW The criteria for service connection for a heart disability, to include ischemic heart disease, specifically manifested by coronary artery disease, status post coronary artery bypass graft, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duty to notify was satisfied by letters in September 2010 and February 2011. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA treatment records, and identified private treatment records have been obtained. The Veteran was provided a VA examination in June 1978, but an opinion as to etiology or nexus was not provided regarding heart disease. As discussed below, there is no in-service element established, medical or other competent evidence suggesting a nexus between the Veteran's ischemic heart disease and service, or any other evidence that would warrant obtaining a medical nexus opinion. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection The Veteran seeks service connection for a heart disability, to include ischemic heart disease, including a specific diagnosis of coronary artery disease, status post coronary artery bypass graft. 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, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, where a veteran served 90 days or more of active service, and certain chronic disease, such as arteriosclerosis and cardiovascular-renal disease (i.e., ischemic heart disease), become manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. As the disorder at issue is a "chronic disease" listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) also applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic disease" in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, VA has established a presumption of herbicide exposure applicable to Veterans who served in Republic of Vietnam during the Vietnam War. Specifically, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. "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)(iii), 3.309(e). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld the VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring proof of some duty or visitation onshore in Vietnam. Certain diseases are deemed associated with herbicide exposure under VA law and shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Such diseases include the ischemic heart disease, which is the subject of this appeal. See 38 C.F.R. § 3.309(e). Service on a deep-water vessel off the shores of Vietnam is generally not considered service in the Republic of Vietnam for purposes of 38 C.F.R. § 3.307(a)(6). VAOPGCPREC 27-97. Veterans who served in deep-water naval vessels off the coast of Vietnam during the Vietnam War are referred to as "Blue Water Navy Veterans," and there is no presumption of exposure to herbicides for such claimants. See Presumption of Exposure to Herbicides for Blue Water Navy Vietnam Veterans Not Supported, 77 Fed. Reg. 76170 (Dec. 26, 2012). It is reiterated that service in the waters offshore Vietnam is only qualifying service if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Service on a deep-water naval vessel off the shores of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A), unless evidence shows that a Veteran went ashore. VAOPGCPREC 27-97. VA General Counsel opinions are binding on the Board. See 38 U.S.C.A. § 7104(c) (West 2014); 38 C.F.R. § 14.507 (2015). Since issuance of the above-cited General Counsel opinion, VA has reiterated its position that service in deep-water naval vessels offshore of Vietnam (as opposed to service aboard vessels in inland waterways of Vietnam) is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases. See comments section in Federal Register announcement of final rule adding diabetes to the list of Agent Orange presumptive diseases, 66 Fed. Reg. 23166 (May 8, 2001). Although "inland waterways" are not defined in VA regulations, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, IV.ii.1.H.2.a., d. Service aboard a ship that anchored temporarily in an open deep water harbor or port is not sufficient. See VBA Manual M21-1, IV.ii.2.C.3.m. Open water ports, such as Da Nang, Cam Ranh Bay, and Vung Tu, are considered extensions of ocean waters and not inland waterways. Id. In Gray v. McDonald, 27 Vet. App. 313 (2015), VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) was found to be arbitrary and capricious insofar as it designates Da Nang Harbor as offshore waters rather than an inland waterway without providing a principled reason for that designation. A recent amendment to the VA's Adjudication Procedure Manual classifies inland waterways as fresh water rivers, streams, and canals, and similar waterways. VBA Manual M21-1, IV.ii.1.H.2.a. Because these waterways are distinct from ocean waters and related coastal features, service on these waterways is considered service in the Republic of Vietnam. VA considers inland waterways to end at their mouth or junction to other offshore water features. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. See VBA Manual M21-1, IV.ii.1.H.2.a.; see also VBA Manual M21-1, IV.ii.2.C.3.m. Offshore waters are the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. This includes salty and brackish waters situated between rivers and the open ocean. VBA Manual M21-1, IV.ii.1.H.2.b. Under the amended criteria, consistent with the pre-amended criteria, Da Nang Harbor is considered to be offshore waters of the Republic of Vietnam and is not an inland waterway subject to the presumption of exposure to herbicide agents. See VBA Manual M21-1, IV.ii.1.H.2.c. Even if a Veteran does not fall with in the class of service members afforded the herbicide presumptions under 38 C.F.R. §§ 3.307(a)(6), 3.309(e), a claimant can still show that he was actually exposed to herbicides, and that a disorder resulting in disability or death was in fact causally linked to this herbicide exposure. See Combee v. Brown, 5 Vet. App. 248 (1993). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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. The Veteran contends that he developed ischemic heart disease as a result of exposure to herbicides while serving aboard the USS Ticonderoga (CVA 14). The Board notes that the Veteran does not contend that he actually set foot in Vietnam, but rather contends that he was exposed to herbicides through contact with contaminated equipment and water. As an initial matter, the Board notes the Veteran's other contentions that he was in contact with other hazardous chemicals during service, such as industrial cleaning products, including carbon tetrachloride and benzene toluene; that he was assigned to mix "napalm," which consisted of unknown chemicals and aviation gas, from July 1951 to August 1953 while serving aboard the U.S.S. Point Cruz (CVE 119); painting and removing paint while aboard ships; and getting fuel from jets on his body and clothes. However, 38 C.F.R. § 3.307(a)(6) specifically lists the chemicals and time periods for which the herbicide exposure presumption applies. The presumption does not apply to these other chemicals or materials or to these time periods. The Veteran's military personnel records show that he was assigned to the U.S.S. Ticonderoga from October 1966 to March 1967. While stationed aboard the ship, the Veteran, as an aviation ordnance man, helped load bombs and came in contact with planes coming by from bombing missions. See VBMS, 7/15/10 Correspondence (claims); 9/21/11 NOD. He contends that he breathed the air "of what [he felt] sure was carrying Agent Orange plus all the other chemicals from the planes" and had to drink, bathe, and eat food prepared in the water that "would have been filtered from the Agent Orange contaminated waters in the area of Vietnam." 9/21/11 NOD. After a review of all the evidence, the Board finds that entitlement to service connection for a heart disability, to include ischemic heart disease, must be denied. Service connection on the basis of presumed herbicide exposure must be denied. The Veteran does not contend that he served landside in Vietnam. Although the Board acknowledges that the U.S.S. Ticonderoga had service off the shores of Vietnam during the period in which the Veteran was stationed aboard, the Board reiterates that service on a deep-water vessel off the shores of Vietnam is not considered service in the Republic of Vietnam for purposes of the presumptive provisions pertaining to exposure to herbicides. Furthermore, there is nothing in the record to suggest it either docked in or was present in the inland waterways of Vietnam. Accordingly, the Board finds that the presumptive provisions of 38 C.F.R. §§ 3.307(a)(6), 3.309(e) do not apply in this case. Additionally, there is no credible evidence that the Veteran was actually exposed to herbicides during service. With respect to the Veteran's contention that he was exposed to herbicides through contact with contaminated water, the Board notes that while it is "conceivable that some veterans of offshore service incurred exposure under some circumstances due, for example, to airborne drift, groundwater runoff, and the proximity of individual boats to the Vietnam Coast," VA is "not aware of any valid scientific evidence showing that individuals who served in the waters offshore of the Republic of Vietnam or in other locations were subject to the same risk of herbicide exposure as those who served within the geographic land boundaries of the Republic of Vietnam." 69 Fed. Reg. 44,614, 44,620 (July 27, 2004); 73 Fed. Reg. 20,566, 20,568 (April 16, 2008); Haas, 525 F.3d at 1182-83. As to the Veteran's claims that he was exposed to herbicides through contact with contaminated equipment and aircraft, the Joint Services Records Research Center (JSRRC) reviewed numerous official military documents, ship logs and other sources of information pertaining to Navy and Coast Guard ships and the use of tactical herbicides in the Vietnam era, and found no evidence that those ships transported tactical herbicides to the Republic of Vietnam or that ships operating off the coasts of Vietnam used, stored, tested, or transported herbicides. See VBMS, 5/1/09 VA Memo; 2/17/11 VA Memo. Furthermore, the Board finds that the Veteran's assertions that he was exposed to herbicides have no probative value, especially as they were merely speculative or assumptions with no bases. While the Veteran is competent to describe an observable event such as having a substance touch his skin or using water, there is no evidence showing that the Veteran has the expertise to determine if the water used was in fact contaminated, nor has he provided any scientific or other reports which speak to this assertion. The Veteran is also not competent to state that any aircraft with which he came into contact onboard the U.S.S. Ticonderoga was contaminated with herbicide. In Bardwell v. Shinseki, 24 Vet. App. 36 (2010), the United States Court of Appeals for Veterans' Claims (Veterans Court) held that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. It was noted that in contrast to situations involving alleged medical symptoms or injury, a non-combat claimant's lay assertion that an event occurred in service must be weighed against other evidence of record, including lack of documentary evidence of the incident. Therefore, the Board finds that there is no competent evidence of record showing that the Veteran was in fact exposed to herbicides. In sum, because the Veteran is not presumed to have been exposed to herbicides during service in Vietnam, and because there is no credible evidence of actual exposure to herbicides, the Board finds that the Veteran was not exposed to herbicides during his military service. Accordingly, his claim for service connection for ischemic heart disease due to herbicide exposure must be denied. Concerning alternate avenues of service connection, the Veteran's service treatment records do not indicate onset of arteriosclerosis during service or within a year thereafter. Despite the Veteran's contentions that he first manifested symptoms of heart disease during active duty service and that his severe heartburn and indigestion were eventually diagnosed as ischemic heart disease, service treatment records are negative for complaint, treatment, or diagnosis of a cardiovascular disorder. In fact, the Veteran's service treatment records reveal that the Veteran was found to have normal clinical evaluations for the heart and vascular system in November 1950, January 1956, November 1961, and March 1967. He also did not complain of chest or cardiovascular problems, had a negative January 1956 chest x-ray, and had a negative roentgenographic examination of the chest in May 1957. See VBMS, 5/16/78 STRs, p. 1; 5/16/78 STRs (rec'd 5/16/78), p. 14, 17, 21, 35, 55, 57, 102. The Veteran's first complaints of and treatment for chest pains was not until December 1971, four years after separation from service. See VBMS, 9/21/11 NOD; 4/21/16 Appellate Brief; 12/5/12 VA Treatment Records, p. 6. However, he was diagnosed with costochondritis, and treated for such until February 1978. Moreover, the physician found that the Veteran's pain was not typical of angina or a cardiac problem. See VBMS, 12/5/12 VA Treatment Records, p. 6; 2/28/11 VA Treatment Records, p. 7-9, 11-13, 17, 19. A diagnosis of arteriosclerotic cardiovascular disease was not made until February 1978, 11 years after separation from service. See VBMS, 5/30/78 VA Treatment Records, p. 5. The Veteran was hospitalized for right and left cardiac catheterization in March 1978; and diagnosed with atherosclerotic cardiovascular disease, double coronary artery disease with absent left circumflex, angina pectoric, and functional therapeutic class III-C. See id. at 1. The Veteran had a double coronary bypass surgery in April 1978 and cardiac catherizations in June 1978, February 1979, April 1982, August 1985, February 1993, and November 1999. See 2/28/11 VA Treatment Records at 36, 42; VBMS, 2/25/11 Private Treatment Records (Dr. V.O.), p. 33. A December 2000 private treatment record reveals that the Veteran was diagnosed with "ischemic heart disease with transient sinus bradycardia in the setting of hypokalemia, asymptomatic." See VBMS, 2/28/11 Private Treatment Records (149 pages), p. 41. The Veteran was further diagnosed with coronary artery disease, status post coronary artery bypass surgery with documented closure of right coronary graft in May 2001; atrial fibrillation with rapid ventricular response in October 2009; congestive heart failure, class II, in March 2010; and status post cardiac arrest with ventricular tachycardia in September 2011. See VBMS, 2/25/11 Private Treatment Records (148 pages), p. 73; 8/2/11 Private Treatment Record, p. 13, 26; 8/3/11 VA Treatment Records, p. 5. Based on the foregoing, the Board concludes that chronic symptoms of arteriosclerosis, which includes the terms coronary artery disease and ischemic heart disease, did not manifest during or within one year of active duty service. Therefore, as there is no in-service incurrence and as the cardiovascular diagnosis occurred 11 years after separation, service connection on a direct and presumptive basis must be denied. The Board acknowledges the Veteran's assertions in his April 2016 appellate brief that he is competent to attest to when his symptoms began. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Cardiovascular disorders are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding its etiology, and the evidence shows that specific criteria are required to properly assess and diagnose such disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating cardiovascular disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. The Board also recognizes an undated letter from Lt. J.D., which addressed the Veteran's contentions of earlier manifestations of his cardiovascular disease. See VBMS, 2/28/11 Private Treatment Records (47 pages), p. 44-46. The physician reviewed the Veteran's treatment records from 1972 to 1976 and noted that they may suggest cardiac etiology. However, he stated that since he did not personally evaluate the Veteran during those episodes, he could not say that the Veteran's chest pains prior to 1978 were due to cardiac disease. Although it was "quite possible," he stated that it was a subjective opinion based on insufficient data. As such, his statements and opinions are of little probative value. Therefore, the evidence weighs against a finding that the Veteran's ischemic heart disease, specifically coronary artery disease, began during service, is related to herbicide exposure, manifested within one year of separation, or is related to service in any other way. Accordingly, service connection must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER The appeal is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs