Citation Nr: 1745282 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 14-31 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from September 1964 to September 1966, including service in Korea. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, denying the claim currently on appeal. In July 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. 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). FINDINGS OF FACT 1. The Veteran's ischemic heart disease was not present in service or for many years thereafter, and is not otherwise related to the Veteran's active service, to include as due to herbicide exposure. 2. The preponderance of the evidence of record fails to demonstrate that the Veteran was exposed to herbicidal agents, such as Agent Orange, during his active military service. CONCLUSION OF LAW Ischemic heart disease was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. All appropriate development to obtain the Veteran's pertinent, available service treatment records and post-service medical records has been completed. The Board acknowledges that no medical opinion was obtained with respect to the service connection claim denied herein. However, the Board finds a remand for an etiology opinion is not required. As discussed below, although the record includes a diagnosis of ischemic heart disease during the period of the claim, the record does not contain competent evidence that the disorder was present within one year after service, or that the disorder is related to service. Furthermore, the preponderance of the evidence of record demonstrates that herbicidal agents, such as Agent Orange, were not yet used at the Veteran's location of service. Therefore, the medical and other evidence is sufficient to decide the claim, and VA is not obliged to provide an examination or obtain an opinion in response to the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the claim. II. 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 preexisting, such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). In general, service connection requires competent evidence showing: (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). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, 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, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). The record reflects that the Veteran currently has ischemic heart disease, which was initially diagnosed in 2000, over 30 years after his separation from service. The medical evidence also shows that the Veteran underwent coronary bypass surgery in 2000. The Veteran contends that his heart condition is related to active service. He generally asserts that his disability was caused by in-service exposure to chemicals and herbicides. He admitted that he served during the Vietnam Era, but specifically denied in-country service in the Republic of Vietnam. Specifically, the Veteran alleges that he had numerous instances of exposure to herbicides during his service in the vicinity of the demilitarized zone (DMZ) in the Republic of Korea in 1965 and 1966. With respect to service connection based on herbicide exposure, VA laws and regulation provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116 (a)(3); 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases, including ischemic heart disease, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). The Department of Defense (DoD) has identified specific units it has cited that served in areas along the DMZ in Korea where herbicides were used between April 1968 and July 1969. 38 C.F.R. § 3.307(a)(6)(iv). VA's Adjudication Procedure Manual, M21-1MR, contains a list of a number of Battalions of Infantry, Cavalry, Armor, and Artillery Divisions identified as specific units that served in areas along the DMZ in Korea where herbicides were used between April 1968 and July 1969. If a veteran alleges service along the DMZ in Korea, and was assigned to one of the cited units during this period, then that veteran's exposure to herbicides on a factual basis is conceded. Id. Once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. The Veteran did not have any service in the Republic of Vietnam. He did have service in the Republic of Korea; however, that service was from February 1965 to March 1966. As such, the above presumptive provisions do not apply to the Veteran. The Board acknowledges the Veteran's belief that he was exposed to herbicides despite the fact that his period of active service does not fall within the presumptive period. However, the Board notes that in Bardwell v. Shinseki, 24 Vet. App. 36 (2010), the 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. Here, the record is negative for any supporting evidence that he was exposed to gases, herbicides, or chemicals other than his own assertions. The Board notes that the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Board further notes that there is no evidence in the Veteran's service treatment records or the other medical evidence of record to suggest that he had a heart condition, to include ischemic heart disease, during service. The first medical evidence of a heart condition was decades after service. In addition, upon a thorough review of the entire record, there is no medical statement or other competent evidence linking the Veteran's heart condition to his military service, to include his alleged herbicide exposure. While the Veteran might believe his claimed disability is related to service, as a lay person, his opinion is of insufficient value to establish the required nexus. He has not been shown to possess the requisite expertise or knowledge to address such a complicated medical matter. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). During his July 2017 Board hearing, the Veteran indicated that as part of his duties in 1965 as the Chaplain's Assistant, he provided support and services to troops along the DMZ. The Veteran further indicated that while on guard duty at posts along the DMZ, he noticed that there was not a green blade of grass growing. He believed that Agent Orange was used in those areas. The Board concludes that the evidence does not establish that the Veteran had exposure to Agent Orange or other herbicide agents in service. The Board acknowledges his reports regarding his duty in the DMZ; specifically, his observations that the surrounding area of where he was stationed was barren and free of vegetation. However, there is no evidence to support that conclusion. Appropriate requests regarding confirming herbicide exposure have been made based on the Veteran's contentions, but have been found to be without merit. The Veteran certainly is competent to report what he observed while in the DMZ, but he is not competent to conclude that these observations prove exposure to Agent Orange. As noted, the Veteran served in the Republic of Korea, but not during a period when Agent Orange has been recognized as being used. Based on the foregoing, the Board finds the Veteran's assertions regarding Agent Orange or other herbicide exposure to be clearly so speculative on its face as to not constitute credible evidence of herbicide exposure in service. As there is no credible evidence otherwise establishing exposure to herbicides, the Board finds that exposure to herbicides is not conceded, and service connection cannot be granted on a presumptive basis for ischemic heart disease. The Board recognizes that the Veteran has included multiple materials and lay statements regarding his service in the DMZ. Again, however, there is no competent evidence that the Veteran was exposed to herbicidal agents such as Agent Orange. Moreover, there is no lay or medical evidence to suggest that the Veteran's ischemic heart disease was incurred in service or is otherwise related to service. He did not begin to experience symptoms of ischemic heart disease until many years after service and there is no medical evidence to suggest any link to service. In summary, the Veteran's service treatment records show no complaints of or symptoms consistent with ischemic heart disease, and the Veteran has reported the onset of symptoms many years after separation from service. The evidence does not demonstrate in-service exposure to Agent Orange or other herbicide agents contemplated in 38 C.F.R. §§ 3.307 and 3.309. No medical professional has ever attributed the Veteran's ischemic heart disease to his service. Based on the foregoing, service connection on a direct basis is not warranted. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for ischemic heart disease. The benefit-of the-doubt doctrine is therefore not applicable, and the Veteran's claim of entitlement to service connection for ischemic heart disease must be denied. See 38. U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs