Citation Nr: 1745274 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 13-44 044A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for ischemic heart disease, to include due to exposure to herbicide agents. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a May 2017 letter, the Veteran withdrew his request for a Board hearing. See 38 C.F.R. § 20.704 (d) (2016). FINDINGS OF FACT 1. The competent credible evidence of record is against a finding that the Veteran was exposed to herbicide agents in service. 2. Ischemic heart disease is not shown to have been present in service, nor did it manifest within one year after discharge from service, or for many years thereafter, nor has it been shown to be etiologically related to the Veteran's active service, to include in service exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (a), (e) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159 (c)(4) (2016). The Veteran was not afforded a VA examination with respect to his claim and the Board finds that an examination is not warranted. A medical examination is necessary when there is (1) "competent evidence of a current disability or persistent or recurrent symptoms of a disability," (2) evidence establishing an in-service "event, injury, or disease," and (3) an "indication" that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2). Here, the Board finds that although the Veteran has satisfied the first element, as he has current diagnosis of coronary artery disease, also known as ischemic heart disease, the remainder of the elements are not satisfied. See https://www.publichealth.va.gov/exposures/agentorange/conditions/ischemicheartdisease.asp (last visited October 5, 2017) (VA acknowledges that ischemic heart disease is also known as coronary artery disease or hardening of the arteries). In reference to the second McClendon element, the Board finds that the evidence in this case does not establish an in-service "event, injury, or disease." Here, the Veteran contends he was exposed to herbicide agents during his service in Korea. However, for the reasons discussed in more detail below, the Board finds the Veteran does not have the requisite service in area in which exposure to herbicide agents is presumed; thus, he is not entitled to the presumption to exposure of herbicide agents. Also, the competent evidence of record does not reflect actual exposure to herbicide agents. In addition, the Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of any heart disease. Nor does the record reflect manifestations of his coronary artery disease within one year of discharge; therefore, the Veteran is not entitled to the presumption for chronic diseases. Thus, the evidence of record does not establish an in-service "event, injury, or disease." The Board also finds that the Veteran did not satisfy the third McClendon element, aside from the Veteran's lay assertions, the evidence does not in any way suggest that the Veteran's post-service disability is related to his service. He does not assert any other in-service event, injury, or disease, to which his post-service disability could be related. See also Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). Consequently, the Board finds that given the absence of in-service evidence of manifestations of his current disability on appeal or such showing within one year of discharge, the absence of reports of symptomatology for many years after separation, and no competent evidence of a possible nexus between service and his disability on appeal, the "low" threshold for purposes of triggering VA's duty to provide an examination is not met. McLendon, 20 Vet. App. at 81. Based on the foregoing, the Board finds that the record as it stands includes adequate competent evidence to allow it to adjudicate the appeal, and no further action is necessary. See 38 C.F.R. § 3.159 (c) (2016). II. Service Connection for Ischemic Heart Disease A. Legal Principles and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic diseases, such as coronary artery disease, if shown to be manifest to a degree of 10 percent or more within one year following a veteran's separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). In such cases, the disease is presumed to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). Where a chronic disease, under 3.309(a) is shown as such in service or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). Absent a showing of the chronic disease manifesting during the in-service or presumptive periods, service connection for chronic conditions that develop after these periods is not warranted. The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops certain diseases to a compensable degree any time after such service, the disease shall be service connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). These diseases are AL amyloidosis; chloracne; type II diabetes; Hodgkin's disease; ischemic heart disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). Effective February 24, 2011, VA amended its regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea. See 76 Fed. Reg. 4245-01 (Jan. 25, 2011). Specifically, a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, 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. 38 C.F.R. § 3.307 (a)(6)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309 (e) are applicable. In determining whether service connection is warranted for a disability, 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. B. Analysis The Veteran seeks entitlement to service connection for ischemic heart disease, which he relates to his active service, to include due to exposure to herbicide agents. Specifically, the Veteran contends that while he served in Korea in 1967 to 1968 with the 1st of the 25th Artillery 8 Army Battery C unit, he was required to be in and out of the Korean DMZ. Additionally, the Veteran contends that during his service he spent two months outside the perimeter of the Korean DMZ while his unit was attempting to rescue soldiers of USS Pueblo, who were captured by North Korea. See January 2012 Statement by Veteran. Furthermore, the Veteran contends that during the two months he served in the Korean DMZ, he cleaned his mess kit and bathed in the Imjin River, and dug his machine gun bunker and filled sand bags from the earth. See January 2013 Statement by Veteran. Preliminary, the Board observes that Veteran's treatment records reveal a diagnosis of and treatment for coronary artery disease, also known as ischemic heart disease during the pendency of the appeal. As such, the Board finds that Veteran has established the first element of service connection, a current disability. With respect to the second element of service connection, in-service incurrence aggravation of a disease or injury, the Veteran contends that he was exposed to herbicide agents while serving in and out of the Korean DMZ. However, the competent evidence does not support his contentions of an in-service occurrence. The Board notes that DoD has informed VA that herbicide agents were used in Korea along the DMZ from April 1968 to August 1971. Additionally, DoD has identified specific units and other military entities that served in the areas along the Korean DMZ during the qualifying time period. However, although the Veteran's military personnel records document he served in Korea with Battery C, 1st TAB, of the 25th Artillery from August 23, 1967 to September 23, 1968, the Veteran's unit is not one of the listed units that was known to operate in an area in which herbicides are known to have been applied. Thus, although the Veteran was not assigned to a unit listed as known to operate in the Korean DMZ, based on his contentions that he served in the Korean DMZ, the U.S. Army and Joint Services Records Research Center (JSRRC) conducted a search and review of the Veteran's unit history in order to verify the Veteran's exposure to herbicide agents in service. A report of its findings reveals that the Veteran's unit had its main base camp located at Camp Jackson, which was located just south of Uijonghu, South Korea. Battery A was located at Camp St. Barbara, and Battery C was located at Camp Mermaid. Furthermore, the JSRRC reported that the records do not document the use, storage, spraying, or transportation of herbicides, nor did the records document any specific duties performed by the Veteran's unit or its members along the Korean DMZ. See July 2016 JSRRC Herbicide Exposure Verification Response. Additionally, on April 5, 2017, VA conducted a search in the VA Compensation Service Intranet Stressor Verification site and in the official Defense Technical Information Center (DTIC) website for historical documents relevant to the Veteran's claimed herbicide exposure. No historical documents were identified to substantiate the Veteran's claimed herbicide exposure. Ultimately, in April 2017, after all efforts to concede herbicide exposure had been exhausted, VA made a formal finding of insufficient evidence to concede exposure to herbicide agents as it pertains to the Veteran's appeal. The Board acknowledges the Veteran's lay statements that he served in and out of the Korean DMZ, to include a rescue mission of USS Pueblo and bathing in the Imjin River, however the research conducted by VA reveals that the Veteran's unit was not one of the units known to have served in the Korean DMZ. VA attempted to obtain more details about the Veteran's claimed herbicide exposure. In a November 2011 notification letter, VA advised the Veteran to submit evidence to support his claimed herbicide exposure, to include statements from other people. Additionally, in a January 2012 notification letter, VA requested additional information from Veteran to verify that he served in the Korean DMZ. However, the Veteran did not provide any additional statements (no buddy statements or statements from other members of his unit to verify service in Korean DMZ), other than the lay statements previously mentioned. Thus, without more specific information from the Veteran (i.e. where he served in the Korean DMZ or what geographic region of the Imjin River he bathed in), in conjunction with the negative findings of the JSRRC, the Board cannot verify the Veteran's service in the Korean DMZ. Thus, in regards to presumptive exposure of herbicide agents, the evidence does not show, nor does the Veteran contend that he served in one of the units DoD has identified as assigned to the Korean DMZ from April 1968 to July 1969; nor do the Veteran's lay statements alone establish that he served in the Korean DMZ. Therefore, exposure to herbicide agents during his service in Korea cannot be presumed. Furthermore, the research by the VA reveals that the Veteran's unit was not in an area that used, stored, sprayed, or transported herbicide agents, nor did the Veteran or any of the members of the Veteran's unit perform any specific duties along the Korean DMZ. Thus, in regards to actual exposure of herbicide agents, other than the Veteran's lay statements, the evidence of record does not establish actual exposure. Without corroborating evidence, the Veteran's lay statements alone are not competent evidence to establish actual exposure because he has not submitted any evidence that he possesses the expertise necessary to opine on the technical matter of herbicide exposure. See Layno v. Brown, 6 Vet.App. 465, 469-70 (1994) (explaining that "[a]s a general matter, in order for any testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration," which includes possessing personal knowledge of the disputed fact and the expertise necessary to testify as to that fact). Therefore, the competent evidence does not establish presumptive or actual exposure to herbicide agents. Additionally, the Veteran's service treatment records are silent for any treatment, complaints, or diagnosis of any heart disease. Although the Veteran's service treatment records do not establish an in-service occurrence for his heart disease claim, another method to establish an in-service occurrence is on a presumptive basis for certain chronic diseases, such as coronary artery disease, if shown to be manifest to a degree of 10 percent or more within one year following a Veteran's separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309. Here, the Board notes that the Veteran does not contend, nor does the evidence reflect that the Veteran's coronary artery disease manifested within one year of his 1968 discharge from service. In fact, the Veteran's private medical treatment records show an assessment of coronary heart disease from July 2009, approximately 40 years following separation Thus, the Board finds the evidence does not establish an in-service occurrence or injury. Therefore, the second element of service connection is not satisfied. With respect to the third element, a causal relationship, i.e., nexus between the claimed in-service disease or injury and the current disability, the Board finds that the medical evidence of record is against a finding of a nexus between the Veteran's heart disease and his active service, to include exposure to herbicide agents. Since, there is no competent evidence of in-service exposure to herbicide agents, and since the Veteran's service treatment records are negative for any treatment, complaints or diagnosis of any heart problems, a nexus between the Veteran's current heart disease and his active service, to include as due to herbicide exposure, cannot be established. Additionally, since the evidence does not establish the existence of coronary artery disease during service, the Veteran has not established service connection by chronicity. As in order to establish service connection by chronicity, the claimant must demonstrate (1) the existence of a chronic disease in service and (2) present manifestations of the same disease. 38 C.F.R. § 3.303(b) (2016). Thus, the Board finds the evidence does not establish a nexus between the claimed in-service disease or injury and the current disability. Therefore, the third element of service connection is not satisfied. Lastly, to the extent that the Veteran has offered his opinion that his heart disease is related to service, to include exposure to herbicide agents, these statements appear to pertain to an internal medical process which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses, as is the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Therefore, based on the foregoing, the claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for ischemic heart disease, to include due to exposure to herbicide agents, is denied. ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs