Citation Nr: 1744071 Decision Date: 10/03/17 Archive Date: 10/13/17 DOCKET NO. 12-34 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Service connection for coronary artery disease, with previous myocardial infarction and implantation of an automatic implantable cardioverter defibrillator. WITNESS AT HEARING ON APPEAL Veteran ORDER Service connection for coronary artery disease, with previous myocardial infarction and implantation of an automatic implantable cardioverter defibrillator, is granted. FINDINGS OF FACT 1. The record evidence establishes that the Veteran served as a supply officer at Takhli and U-Tapao airfield bases in Thailand during the period from August 1970 to April 1971, and his service activities involved duty in area in which herbicide agents were used on or near the perimeters of the Thailand military bases where he was stationed. 2. The record evidence is in relative equipoises as to whether the Veteran was actually exposed to herbicide agents while on active duty in Thailand. 3. The record evidence is in relative equipoise as to whether there is a causal relationship between the Veteran's exposure to herbicide agents in service and the subsequent development of his coronary artery disease. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for establishing service connection for coronary artery disease are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2014); 38°C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1955 to May 1975. The issue of entitlement to service connection for coronary artery disease comes to the Board from a rating decision issued in January 2012 by the Regional Office (RO) located in Denver, Colorado. The Veteran filed a timely Notice of Disagreement (NOD) in February 2012. The RO issued a Statement of the Case (SOC) in November 2012 and the Veteran filed a VA Form 9 in December 2012. The Board notes that the Veteran was afforded a travel Board hearing in July 2017. The transcript is associated with the claims file. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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). Service connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (West 2014); 38 C.F.R. 3.303(a) (2016). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Generally to establish entitlement to service connection, a Veteran must show evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and an in-service injury or disease. All three elements must be proved. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C.A. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The listed diseases include ischemic heart disease. In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C.A. § 1113 (b); 38 C.F.R. § 3.304 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). The Veteran contends that he developed coronary artery disease as a result of in-service exposure to herbicides during his service in Thailand. VA's Compensation Service has acknowledged exposure to tactical herbicides, such as Agent Orange, on a direct, occupational, or facts found basis for veterans with duty on military base perimeters in Thailand during the Vietnam era. See M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand for the purpose of eliminating vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense (DOD) document titled, "Project CHECO Southeast Asia Report: Base Defense in Thailand." Id. Special 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. Id. This allows for presumptive service connection of the diseases associated with herbicide exposure. Id. VA's Adjudication Procedure M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5, directs, in pertinent part, that if a veteran served in the U.S. Air Force during the Vietnam Era at one of the specified Royal Thai Air Force Bases (RTAFBs), including U-Tapao and Takhli airfield bases, as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed them near the air base perimeter as shown by the evidence of record, to include daily work duties, performance evaluation reports or other credible evidence, then herbicide exposure is to be conceded on a factual basis. Service personnel records reveal that the Veteran served in the Air Force. He was stationed at the U-Tapao and Takhli Airfield bases in Thailand, during the period from August 1970 to July 1971. He served in the capacity of a supply officer. His duties included being in charge of the supplies on base. He has asserted that while they were stationed there, he was tasked with helping to close the base. He indicated that the inventory team had found a D8 Cat Bulldozer at the edge of the base supply compound, which had been covered by jungle weeds. The Veteran asserted that the Thailand Air Force Personnel that the area where the D8 was found had been sprayed with Agent Orange to control the weeds. The Veteran stated that he and his supply personnel removed the weeds and overgrowth from the D8 Cat Bulldozer. Additionally, the Veteran has asserted that they found other equipment and supplies on the perimeter or just on the outside of the perimeter. Because of the location of these things, the Veteran stated that supply personnel were also exposed to Agent Orange. The Veteran stated that when he was transferred to U-Tapao, he was tasked with determining how supplies were being stolen from the base. The Veteran stated that this required him to go to the perimeter of the base, again exposed him to Agent Orange. Finally, the Veteran also stated that Agent Orange was stored near the bomb dump and Base Supply Open Storage. See December 2012 statement, November 2016 statement, January 2017 statement, and July 2017 hearing transcript. Given all of this, the Veteran asserted that his responsibilities exposed him to herbicides during his period of active duty. As noted, when a Veteran is shown to have served at one of the specified Royal Thai Air Force Bases (RTAFBs), herbicide exposure will be conceded when the Veteran served as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed them near the air base perimeter as shown by the evidence of record, to include daily work duties, performance evaluation reports or other credible evidence. In this case, although the Veteran did not serve as a security policeman, a security patrol dog handler, or a member of the security police squadron, the record evidence shows that he was otherwise tasked to perform duties near the air base perimeter. In this regard, the Veteran's service personnel records show that the Veteran worked as a supply officer and had been recognized for his aptitude in eliminating the thefts from the base supply. As noted in Pentecost v. Principi, 16 Vet. App. 124 (2002), although the service personnel records do not specifically state the Veteran's presence at or near the base perimeter, they are sufficient to find that his service involved the type of activities (i.e., the discoveries of stolen government property from the supply complex) that would place him at or near the perimeter of the military base where he was stationed, even without the explicit documentation of his presence in the specific perimeter areas. Thus, though the Veteran's statements alone do not establish that he served at or around the perimeter of the bases where he was stationed in Thailand, taken together with the service personnel records, the evidence does show that the Veteran's service included work near the air base perimeter. The Veteran contends his coronary artery disease is related to his service in Thailand. In statements and testimony, he stated that while serving he explained that he worked within sight of the perimeter and crossed the perimeter. See December 2012 statement, November 2016 statement, January 2017 statement, and July 2017 hearing transcript. The Board finds the Veteran's statements and testimony credible as they are consistent with the circumstances of his service. See 38 U.S.C.A. § 1154 (a). See also Caluza v. Brown, 7 Vet. App. 498 (1995). First, the Veteran's military occupational specialty as a supply specialist, and credible evidence of record show that his duties required routine travel near and across the perimeter of the air bases, based on the above testimony and assertions. Second, the CHECO Report notes heavy use of herbicides at the perimeter of the base. That report is highly probative as it is an official record, generated with a specific view towards describing military bases in Thailand during the Vietnam Era. As such, the record evidence is also in relative equipoises as to whether the Veteran's was actually exposed to herbicide agents in service. Accordingly, the Veteran's in-service exposure to herbicide agents may be conceded on a factual basis. The medical evidence of record confirms that the Veteran has coronary artery disease, and this disease is presumptively associated with exposure to certain herbicide agents. 38 C.F.R. §§ 3.307 (a), 3.309(e). In this regard, the Board notes the Secretary's discussion of the findings by the National Academy of Sciences (NAS) based upon its extensive review of sound medical and scientific studies and report, which contain a great deal of medical and scientific data of many disease, including coronary artery disease, found to be related to exposure to herbicide agents. See 75 Fed. Reg. 14391, 14392-93 (Mar. 10, 2010). As there is probative, credible evidence that the Veteran was exposed to herbicides during active duty, service connection for coronary artery disease is granted. Accordingly after resolving any reasonable doubt in the Veteran's favor, the claim of service connection for coronary artery disease, with previous myocardial infarction and implantation of an automatic implantable cardioverter defibrillator, is granted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD B. Muetzel, Counsel Copy mailed to: Veterans of Foreign Wars of the United States Department of Veterans Affairs