Citation Nr: 1743791 Decision Date: 09/29/17 Archive Date: 10/10/17 DOCKET NO. 12-00 082A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for coronary artery disease (CAD), claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied the benefits being sought. The Veteran was scheduled for a hearing on January 4, 2012 at the Boston RO. However, during an informal conference with the Veteran's representative, it was agreed that lieu of a formal hearing, the RO would provide a Statement of the Case (SOC). A subsequent hearing was scheduled in June 2012 via videoconference at the Boston RO. Prior to the hearing, the Veteran withdrew his request for a hearing before a Veterans Law Judge. 38 C.F.F. § 20.702 (e) (2016). This case was remanded to the Agency of Original Jurisdiction (AOJ) in August 2014 for further development and has now been returned to the Board for appellate proceedings. FINDINGS OF FACT 1. The competent and credible evidence of record is against finding that the Veteran was directly exposed to herbicides during service. 2. The preponderance of the evidence reflects that the Veteran's coronary artery disease did not manifest in service or within one year thereafter, and is not related to his active service, to include exposure to herbicides. CONCLUSION OF LAW The Veteran's coronary artery disease was not incurred or aggravated in service, and may not be presumed to have been incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA's duty to notify was satisfied by a March 2011 letter. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also finds that the duty to assist requirements has been fulfilled. All relevant, identified, and available evidence has been obtained. The Veteran has not referred to any additional, unobtained, relevant and available evidence. The AOJ attempted to confirm the Veteran's alleged herbicide exposure on a factual basis, at the U. S. Air Force Base in Guam. However, the AOJ received negative responses for any herbicide exposure for the Veteran from the DoD, in November 2016. (The specific findings of the NPRC, AFHRA and JSRRC are discussed in broader detail below). In its August 2014 remand, the Board directed the RO to obtain the Veteran's personnel records to ascertain service in Guam and to comply with the VA's Adjudication Procedure Manual, M21-1 IV.ii.1.H.7. The Board finds that there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a) (2016); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including coronary artery disease, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2016). Alternatively, under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307 (a)(6)(2016) service connection may be granted for certain diseases where a veteran was exposed to a herbicide agent during active military, naval, or air service, even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e)(2016). Coronary artery disease is a disease presumptively associated with exposure to herbicides. Id. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2014). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2016). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Private treatment records from Franklin County Cardiovascular Associates dated from 2004 to 2011 reveal that the Veteran was diagnosed and treated for coronary artery disease, with multiple interventions and stenting of the right coronary artery, left anterior descending (LAD) and left circumflex arteries. The first element of service connection is met. Shedden, 381 F.3d at 1166-67. The Veteran contends that he was exposed to herbicide agents while in Guam, and therefore should be entitled to presumptive service connection for coronary artery disease. First the Board must determine whether the Veteran was in Guam and second, it must determine whether the Veteran was exposed to herbicide agents while there. The Veteran contends that he had temporary duty assignment (TDY) orders on the island of Guam where his duties were finding bombs and maintenance of the wing pylons of the B-52s, which had AGM Missiles attached. The Veteran's personnel records and his DD-214 show that the served "4 months and 8 days" of foreign service. However, the records do not indicate the exact location of said foreign service. The Air Force Research Historical Research Agency, AFHRA, reported that the "Veteran's 379th Airborne Missile Maintenance Squadron and the B-52 aircraft are not noted for deploying [but] although the units as a whole did not deploy, it is obvious from the paperwork you provided that this veteran was sent somewhere overseas for five months. At that time he was a Ground to Air Missile (GAM) Analyst Mechanic for the GAM-77 "Hound Dog" missile (later it was redesignated as the AGM-28, an Air to Ground Missile), which was tied to the B-52 aircraft which carried it. Therefore, although his unit did not deploy, it did release him to deploy as a single individual to somewhere overseas where B-52s were stationed." Further, in March 2017, the Department of Veterans Affairs provided a memorandum listing its efforts to corroborate the Veteran's allegation of a TDY in Guam. The memorandum concluded that the "Veteran['s] records show Foreign Service for 4 months and 8 days but are silent for where this Foreign Service was." In support of his claim, the Veteran has provided a copy of a Guam patch, which he and fellow Sergeant, H. G., received to place on their uniforms upon departure from Guam. Additionally, the Veteran has provided a copy of a Firearms Sales Certificate (receipt No. 965) from the Andersen Air Force Base Central Exchange, located on the island of Guam, showing that he purchased a .33 caliber pistol in July 1965. Based on this receipt, the Board finds that the Veteran was in Guam in July 1965. The Veteran contends that his coronary artery disease was incurred from his exposure to herbicide agents during active service while stationed at the U. S. Air Force Base in Guam. Specifically, the Veteran contends in a January 2011 statement that his TDY in Guam was driving Air Force buses and delivering B-52 air crewmen to and from the flight lines. While doing so, he observed the spraying of herbicides along the runways and flight line. As a result of the herbicide exposure, he developed coronary artery disease, which was not diagnosed until 2004, many years after service. A. Presumptive Service Connection Presumptive service connection based on exposure to herbicides is for consideration because coronary artery disease is one of the conditions presumptively associated with exposure to herbicide agents. 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a) (6) (ii), 3.309 (e) (2016). The threshold question for presumptive service connection based on herbicide agent exposure is whether the Veteran was exposed to an herbicide agent in service. The Veteran's DD-214 shows that he did not serve in the Republic of Vietnam during the Vietnam era, or in or near the Korean DMZ from March 1968 to November 1971, nor has the Veteran so asserted. The Board notes this fact is not in dispute. Therefore, he is not presumed to have been exposed to herbicide agents. 38 U.S.C.A. § 1116 (a); 38 C.F.R. §§ 3.307 (a)(6)(iii), (iv); 3.313(a)(2016). Although the Veteran did not serve in Vietnam during the Vietnam Era, or in the Korean DMZ in a particular unit during the required timeframe, the VA Adjudication Procedure Manual, M21-1, IV.ii.1.H.7.a provides a table detailing the steps the AOJ must take to verify herbicide exposure on a factual basis in locations other than Korea or Vietnam. Accordingly, the AOJ must follow appropriate steps to verify that the Veteran was actually exposed to herbicides through verification from appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309 (e) to be applicable. Exposure to herbicides is not presumed in such instances, but the exposure to one of the herbicides listed at 38 C.F.R. § 3.307 (a)(6)(i) can still be established if shown by the facts of the case. Once exposure to herbicides has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309 (e) for herbicide-related diseases is applicable. Upon review of the evidence, exposure to herbicides has not been established on a factual basis in this case. There is no probative, persuasive evidence of record demonstrating herbicide agent exposure for the Veteran in Guam. The Veteran offers no direct evidence that he was actually exposed to an "herbicide agent" as defined by 38 C.F.R. § 3.307 (a)(6). For example, he has not asserted personal knowledge what was sprayed along the runways and flight lines. He only contends that what was sprayed made the flora "constantly brown and barren; nothing ever grew in them." The Veteran is competent to state that he saw chemicals being sprayed and that he saw dead foliage. He is not competent to identify an herbicide agent as specified in 38 C.F.R. § 3.307(a)(6), as he does not have the requisite chemical knowledge. In this case, he has professed no specialized ability to detect herbicide agents in the environment, outside of labeled containers, and his assertions of exposure are essentially speculative. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). His lay statements are not sufficient to establish that he was actually exposed to herbicide agents, and his assertions must be weighed against other evidence of record, including the lack of documentary evidence of use of herbicides. Id. There is also no probative or confirmatory evidence showing that the Veteran was exposed to herbicide agents in such an instance at the U. S. Air Force Base in Guam. His military records do not document herbicide exposure. Further, correspondence dated in August 2011 from the Guam Program Manager, M.K, noted that "the use of tactical herbicides on Guam, the DoD information provided to VA does not contain any herbicide test, storage or use sites on Guam. There may have been some small scale commercial herbicide use for brush or weed clearing activity around military bases at every location in the world, but there is no record of such activity with DoD and no way to know the chemical content of any such non-tactical herbicide use." In a November 2016 correspondence from the Joint Services Records Research Center (JSRRC) Coordinator noted that the Department of Defense (DoD) maintains a list of locations outside Vietnam and the Korean DMZ where herbicides were used, tested, or stored, and the island of Guam was not on that list. Additionally, the conclusion of the March 2017 memorandum finding that: The AFHRA has confirmed that the Veterans Specialty Code, 31533Q is for a Ground to Air Missile Analyst Mechanic, specifically for the GAM-77 "Hound Dog" missile, which was tied to the B-52 aircraft which carried it. Our request to the Compensation Service Department has not identified any location on the island of Guam where Agent Orange was used, tested, stored, or transported. Our response from the JSRRC has found no evidence the Veteran was exposed to Agent Orange. Therefore the veteran's herbicide exposure has not been corroborated and therefore, no further herbicide development should be conducted. These findings provide highly probative evidence against the Veteran's assertion of herbicide exposure. In support of his claim, the Veteran submitted another Board decision that granted service connection based on herbicide exposure at Andersen Air Force Base in Guam. Prior Board decisions are binding only on the specific case decided, and the decision provided has no precedential value in the instant case. 38 C.F.R. § 20.1303 (2016). Each decision by the Board is necessarily based on review of the evidence of record in a particular claims file and has no precedential value toward adjudication of appeals by other claimants such as the Veteran who may appear to be similarly placed. The prior Board decision is entitled to no probative weight in determining whether the Veteran was exposed to herbicides in Guam. Also in support of his claim, the Veteran's representative in August 2017, submitted a list of internet articles about herbicides. The first story, "Veteran says Agent Orange sprayed on Guam," offers the recount of a soldier allegedly spraying herbicides on the island of Guam. While the author may honestly have believed that he was spaying Agent Orange in Guam, there has been no corroborating evidence from DoD, and there is no evidence to show that the Veteran featured in the article was competent to identify an herbicide agent specified in 38 C.F.R. § 3.307(a)(6). The second article, "Former Guam resident wins compensation for Agent Orange exposure," notes that the Veteran who was awarded compensation served in Korea, in the DMZ, between 1968 and 1970 and therefore the article is not relevant. The last article, "Legislation will help Pacific veterans exposed to Agent Orange," addresses the introduction of an expanded Agent Orange legislation, entitled, Fighting for Orange-Stricken Territories in Eastern Regions (FOSTER) Act and does not address any facts pertinent to this case. Therefore, these articles are afforded no probative value. The Veteran's assertions regarding herbicide exposure are not competent. Moreover, they are outweighed by the other evidence of record. In particular, the finding from DoD who is the custodian of records for the historical use of herbicides, and is in the best position from review of its own records to determine whether an herbicide agent was present at Andersen Air Force base on the island of Guam. Overall, the Board finds that the DoD's determination which is based on its own classified and unclassified documents substantially outweighs the Veteran's assertions. In light of the above evidence and the verification efforts, there is no competent evidence of record of the Veteran's asserted exposure herbicide agents as set forth in 38 C.F.R. § 3.307(a)(6) in service, nor any record demonstrating that herbicides were tested, stored, or transported the Andersen Air Force Base, in Guam where the Veteran was on a TDY. Thus, he is not entitled to service connection for coronary artery disease due to exposure to herbicides. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2016). Additionally, post-service records do not reveal probative evidence of coronary artery disease at a 10 percent level within one year after service, nor has the Veteran so asserted. Thus, the Veteran is not entitled to service connection for coronary artery disease on a presumptive basis as a chronic disease set forth in 38 C.F.R. § 3.309(a) (2016). Because coronary artery disease is a disability set forth in 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology can be considered. Under 38 C.F.R. § 3.303 (b), the probative evidence of record does not establish continuity of symptomatology for coronary artery disease after discharge from active service in 1970. The Veteran's STRs specifically noted a normal heart (thrust, size, rhythm and sounds). Further, the probative medical evidence of record notes that his coronary artery disease was diagnosed in 2004, many years after service. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has not asserted that he experienced continuity of symptomatology of a heart disability since service. The Veteran is competent to relate observable symptoms; however, he has not been shown to possess the requisite training or credentials needed to render a competent opinion that his coronary artery disease is due to service, especially in light of the complicated nature of the disability. Service connection may not be granted under 38 C.F.R. § 3.303(b) (2016). B. Direct Service Connection Because the Veteran is not entitled to a presumptive service connection for his claim, it does not preclude him from establishing entitlement to service connection for his coronary artery disease with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). The Veteran's STRs are negative for any symptoms of, treatment for, or a diagnosis of coronary artery disease. In fact, at the February 1967 separation examination and report of medical history, reports the Veteran's heart as normal. While cognizant that the absence of contemporaneous records is not an absolute bar to a veteran's ability to prove his claim, the Veteran's STRs do not suggest that he had symptoms of or received treatment for coronary artery disease. Further, the Veteran has not asserted that his coronary artery disease is the result of any disease or injury in service, other than his asserted herbicide agent exposure. No post-service medical records indicate that his coronary artery disease is related to service. Therefore, there is no probative medical or lay evidence to support a nexus between service and the Veteran's coronary artery disease. The evidence does not show that the Veteran's coronary artery disease is due to a disease, injury, or incident in service other than the asserted exposure to herbicide agents. As such, the preponderance of the evidence is against the Veteran's service connection claim for coronary artery disease and must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for coronary artery disease is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs