Citation Nr: 1743746 Decision Date: 09/29/17 Archive Date: 10/10/17 DOCKET NO. 16-62 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for ischemic heart disease, to include as a result of exposure to herbicide agents. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to March 1955, and from August 1958 to June 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which, in pertinent part, denied service connection for ischemic heart disease. In June 2013, the Veteran filed a notice of disagreement as to the heart disease claim, was issued a statement of the case in October 2016, and in December 2016 perfected his appeal to the Board. In April 2017, the Board remanded the claim for additional VA treatment records and to afford the Veteran an opportunity to obtain a private physician's statement regarding his claim. Finding substantial compliance with the remand directives, the appeal is now properly before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's ischemic heart disease is not related to an in-service injury, disease or event. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease, to include as a result of exposure to an herbicide agent, are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran has contended that his ischemic heart disease is due to in-service exposure to Agent Orange while in Vietnam. He stated that he was aboard the USS Lucid from January 1965 to April 1966, and docked in inland waters in Vietnam in April 1965. He reported that he was close enough to where the helicopters were dumping Agent Orange that he could see it floating in the air. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §1110; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as cardiovascular disease, become manifest to a degree of ten 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; 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. Here, however, the record indicates that the Veteran's heart disease did not manifest until 1996, almost 30 years after service, and there is no indication of a heart condition or symptoms of a heart condition prior to, during, or within one year of service. Therefore, service connection based on a presumption for a chronic disease is not applicable. For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, navel, 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 service. 38 U.S.C.A. § 1116 (f). Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of ten percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307 (a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, 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), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). "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 VA's interpretation of 38 C.F.R. § 3.307 (a)(6)(iii) as requiring proof of some duty or visitation onshore in Vietnam. There have been additional developments on qualifying service upon which to have presumed herbicide exposure. The decision Gray v. McDonald, 27 Vet. App. 313 (2015), by the U.S. Court of Appeals for Veterans Claims (Court) held that VA should provide a clearer distinction between offshore and inland waterways within the Republic of Vietnam. The Court therein found that VA's interpretation of 38 C.F.R. § 3.307 (a)(6)(iii), designating Da Nang Harbor as an offshore, rather than an inland waterway was inconsistent with the purpose of the regulation and did not reflect the VA's fair and considered judgment. In particular, the Court could not discern any reason as to why, in VA's determination, certain bodies of water such as Quy Nhon Bay and Ganh Rai Bay, were brown water, but Vung Tau Harbor, Da Nang Harbor, and Cam Ranh Bay, were blue water. The Court stated that VA's old policy of where to draw the line between inland waterways and offshore waters was arbitrary and, thus, not entitled to deference because some harbors and bays were considered to be offshore waters (e.g., Da Nang Harbor) while others were considered inland waterways (e.g., Ganh Rai Bay). The Gray Court did not state that Da Nang Harbor was part of the inland waterways, merely that the line VA drew was flawed. Subsequent to the Court's decision in Gray, VA updated its policy to state that service aboard a ship that anchored in a deep-water costal harbor, such as Da Nang, Vung Tau, Qui Nhon, Ganh Rai Bay, or Cam Ranh Bay, along the Republic of Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore, and is not sufficient to establish presumptive exposure to herbicides, unless the evidence of record confirms the Veteran went ashore during anchorage. VA Adjudication Manual M21-1 IV.ii.2.C.3.m (eff. Nov. 21, 2016). All harbors and bays are considered offshore, while all rivers and deltas are considered inland. Da Nang Harbor, along with Nha Trang Harbor, Qui Nhon Bay Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, and Ganh Rai Bay, are specifically considered offshore waters of the Republic of Vietnam. VA Adjudication Manual M21-1 IV.ii.1.H.2.c. While the VA Adjudication Manual is generally not binding on the Board, it is instructive on the definition of inland waterways and offshore waters for the purposes of entitlement to presumptive service connection. See 38 C.F.R. § 19.5 (2016); VA Adjudication Manual M21-1, IV.ii.1.H.2. 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107 (b) (West 2015). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2016). The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran's service personnel records provide evidence of service on the USS Lucid from January 1965 to April 1966. The record reflects that the USS Lucid docked to pier at Da Nang during May 1967, and there is no other record of the USS Lucid docked or in the inland waterways of Vietnam. Therefore, the Veteran would not have been aboard the USS Lucid at the time it was docked in Vietnam, and thus he would not have been exposed to Agent Orange. The Veteran's DD Form 214 shows that he received the National Service Defense Medal, Good Conduct Medal, Antarctica Service Medal, and an Armed Forces Expeditionary Medal, but no accolades that would possibly reflect service in Vietnam, such as a Vietnam Service Medal or Vietnam Campaign Medal. Additionally, VA Adjudication Manual M21-1 IV.ii.1.H.2.c, as previously discussed, states that service aboard a ship in in a deep-water costal harbor, such as Da Nang, does not constitute inland waterway service or qualify as docking to the shore and is not sufficient to establish presumptive exposure to herbicides, unless the evidence of record confirms the Veteran went ashore during anchorage. Here, there is no evidence that the Veteran went inland, and therefore had the Veteran in fact been aboard the USS Lucid while it was docked in Da Nang, presumptive exposure to herbicides would not be warranted. Service records are silent as to any exposure to Agent Orange, and the only affirmative evidence of record that the Veteran was exposed to Agent Orange are his own statements. The Board acknowledges the Veteran's assertion that he was able to see helicopters dropping Agent Orange while he was in an inlet in Vietnam, but finds that the Veteran's assertion lacks credibility and thus is afforded no probative value, as the evidence of record shows that the Veteran did not in fact have service in Vietnam. The assertion regarding herbicide exposure due to proximity to herbicide agent also would not constitute competent evidence to support his claim of service connection for heart disease. Determinations such as whether Agent Orange was the actual substance being dropped and could have caused exposure as the Veteran alleges require knowledge as to specifically what was dropped from the helicopter. The Veteran has not demonstrated that he has any actual knowledge of what substance was dropped from the helicopters. Thus, his statements as to what the substance was dropped from the helicopters is based on speculation and is afforded no probative weight. The Veteran points to no other specific occurrence that would indicate exposure with Agent Orange while aboard his ship. The Board also acknowledges the Veteran's statement that his private physician told him that his heart disease was related to his military service, specifically to his exposure to Agent Orange. The Board previously remanded the claim to afford the Veteran an opportunity to submit the physician's medical evidence, but as of this date no such evidence has been submitted. Thus, the statement is afforded no probative value and is outweighed by the evidence of record that the Veteran did not have service in Vietnam. The Board finds the evidence of record shows that the Veteran did not in fact have service in Vietnam and was not otherwise exposed to herbicides, including Agent Orange, during service. Therefore service connection for ischemic heart disease due to herbicide agent exposure is not warranted on a presumptive basis. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Regarding the theory of direct service connection, the Board finds that the Veteran has a current diagnosis of ischemic heart disease but does not find that it is related to an in-service injury or disease because the weight of the evidence demonstrates no in-service injury, disease, or event to which heart disease could be related. Service treatment records reflect no injury or disease related to the heart. Service and post-service treatment records are evidence against the Veteran's claim. The earliest evidence of heart disease comes from August 1997 Dayton VA treatment records which reference the Veteran's 1996 bypass surgery. Service treatment records contain no evidence of symptoms attributed to the heart condition during service or at separation from service. The Veteran does not contend that he had any manifestation of a heart condition during service or that any aspect of his service, other than the claimed exposure to Agent Orange, caused his heart condition. The Veteran bases his claim solely on presumptive service connection through exposure to Agent Orange. Thus, the Board finds that direct service connection for heart disease is not warranted. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. ORDER Entitlement to service connection for ischemic heart disease is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs