Citation Nr: 1751046 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 17-41 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for ischemic heart disease. 2. Entitlement to service-connection for psoriasis. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services ATTORNEY FOR THE BOARD S. Yuskaitis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to November 1969, to include service in the Republic of Korea from September 1967 to December 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for psoriasis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran did not serve in a unit in Korea for which herbicide exposure can be presumed, and the weight of evidence is against a finding that he was otherwise exposed to herbicides during service. The Veteran's currently diagnosed ischemic heart disease did not manifest within one year of service, and the disease is not the result of a disease or injury in service. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2016). The Veteran was not provided with an examination with respect to the claim for service connection for ischemic heart disease. However, the Board does not find it necessary to remand for a VA examination and/or medical nexus opinion for a heart disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the Board notes that it is undisputed that the Veteran was first diagnosed with ischemic heart disease many years following service. The Veteran's heart disability claim turns on whether there was presumed in-service exposure to herbicides. The question of whether the Veteran was presumed to be exposed to herbicides in Korea is a factual, not medical, determination. As discussed below, the evidence of record is sufficient to determine that the presumption does not apply to this appeal. Therefore, the Board finds that a VA examination with respect to the claims decided herein is not warranted. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 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). II. Service Connection The Veteran contends that his ischemic heart disease is presumptively attributable to Agent Orange exposure during his military service in Korea. He asserted that while in Korea, he served at Camp Hovey, located five to seven miles outside the DMZ, and he entered the DMZ to repair electronic communication radar equipment two to three times a month. See February 2016 Notice of Disagreement (NOD). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2016). There is a presumption of service connection for certain diseases that are associated with exposure to herbicide agents and that become manifest within a specified time period in a veteran who, during active military, naval, or air service, served in or near the Korean DMZ during specified periods of time, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307 (a)(6)(iv) (2016). Ischemic heart disease is among those diseases for which presumptive service connection is available and must manifest to a degree of 10 percent or more at any time after the last exposure to the specific herbicide agents. 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. § 3.309 (e) (2016). 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 claimant 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 veteran III. Analysis The Veteran claims his currently diagnosed ischemic heart disease is due to herbicide exposure while serving in Korea. Specifically, the Veteran stated that he was deployed to Korea August 18, 1965 to November 17, 1969 with Company D, 707th Maintenance Battalion, 7th Infantry Division and based at Camp Hovey located 5 to 7 miles outside the DMZ. See February 2016. The Veteran further attests that two to three times a month he entered the DMZ to repair electronic communication radar equipment and the area he traveled through on these repair missions had been sprayed with Agent Orange. Id. The Veteran's military personnel records confirmed he served in Korea from September 1967 to December 1968 as a field switchboard operator lineman telephone installer, field artillery repairman, and manual central office repairman with Company D, 707th Maintenance Battalion, 7th Infantry Division. The presumption of herbicide exposure in Korea only apply to units that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period. See 38 C.F.R. § 3.307 (a)(6)(iv). VA's Adjudication Procedure Manual contains a list of service units that have been recognized by the DoD as having served in areas along the Korean DMZ. Exposure to herbicides is to be presumed for Veterans who allege service along the DMZ in Korea and were assigned to certain units between April 1968 and August 1971. See VBA Manual M21-1, Part IV.ii.1.H.4.a. (2016). However, the Board notes that the Veteran's assigned unit of the 707th Maintenance Battalion, 7th Infantry is not listed among those recognized by the DoD as having served along the Korean DMZ. See VBA Manual M21-1, Part IV.ii.1.H.4.b. The M21-1 provides procedures for verifying herbicide exposure. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 7. Specifically, the Veteran should be asked for the approximate dates, location, and nature of the alleged exposure. If this information is received, VA should furnish the Veteran's detailed description to the Compensation Service and request a review of the Department of Defense inventory of herbicide operations to determine whether herbicides were used as claimed. If the Compensation Service's review does not confirm that herbicides were used as claimed, and if sufficient information to permit a search by the JSRRC has been provided, a request for verification of exposure to herbicides should be sent to that entity. VA attempted to verify the Veteran's reported exposure to herbicide agents. The AOJ sent a JSRRC request in March 2017. The following response was received in May 2017: We coordinated our research with the National Archives and Records Administration (NARA) in College Park, Maryland. They were unable to locate 1967-1968 unit records submitted by the 707th Maintenance Battalion (707th Maint Bn). We reviewed the 1967-1968 United States Army Station Lists, the 1967-1968 unit histories submitted by the 7th Infantry Division, and the 1967-1968 Chronologies submitted by the 8th United States Army. The United States Army Station Lists document the 707th Maint Bn was located at Camp Casey, South Korea. The records do not document the use, storage spraying, or transporting of herbicides to include Agent Orange. In addition, the records do not document any specific duties performed by the 707th Maint Bn unit members along the Demilitarized Zone (DMZ). The Board therefore finds that the procedures set forth in M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, para. 7 were adequately completed, and that the AOJ's efforts did not result in findings supportive of the Veteran's contention that he was exposed to herbicide agents while stationed in Korea. The Veteran's only assertion that he was exposed to Agent Orange in Korea (within his February 2016 NOD) contained inconsistencies. First, the Veteran asserts that he was stationed in Korea from August 1965 to November 1969 service in Korea. However, the Veteran's military personnel records confirms the Veteran was in Korea from September 1967 to December 1968. Additionally, the Veteran states that he was located at Camp Hovey. The JSRRC confirmed that the 707th Maintenance Battalion was in fact located at Camp Casey. While the Veteran's service personnel records confirm his unit assigned, there is no other evidence submitted to confirm his claimed trips to the DMZ, except for the lay statement from the Veteran. DoD has provided the units of which are known to have served in such a capacity. Although not being on the list is not dispositive, the Board finds that an assertion without more does not meet the evidentiary burden that a claimant must meet to substantiate this element of the claim. See 38 U.S.C.A. § 5107 (a) (a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary). Moreover, while VA has a duty to assist a claimant to meet this burden, VA attempted to find evidence that the Veteran or his unit did serve in the requisite location during the requisite time period to no avail. Considering the above, to include the noted inconsistencies, the Board finds that the preponderance of the evidence weighs against the Veteran's service satisfying the requirements for the presumption to apply to this appeal. Accordingly, the Veteran cannot establish service connection for ischemic heart disease through the presumptive provisions of 38 C.F.R. § 3.307 (a)(6)(iv). Additionally, the Veteran has not asserted, and the record does not show, that he was involved in the use, movement or storage of herbicides. Thus, there is no evidence to establish direct causation of his ischemic heart disease due to herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Moreover, the record does not show the Veteran's disability manifested in or to a compensable degree within one year of service, or that he has experienced a continuity of symptomatology since his separation from service. Indeed, the medical evidence of record shows the Veteran was first diagnosed with a coronary artery disease in 2001, which is more than 30 years after the Veteran left active service. Given the normal separation examination with the factor of an insufficient showing of treatment or symptoms until many years following service, a continuity of symptomatology is not shown. See 38 C.F.R. § 3.303 (b). In sum, the competent evidence of record does not show herbicide exposure based on service in or near the Korean DMZ. Therefore, the claim of service connection for ischemic heart disease must be denied on a presumptive basis. 38 C.F.R. § 3.307 (a)(6)(iv). Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107 (b) is not for application. ORDER Entitlement to service connection for ischemic heart disease is denied. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. To date, the Veteran has not been provided a VA examination with respect to his claim for psoriasis. Generally, a VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifested during an applicable presumptive period for which the Veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A (d)(2) (West 2014); 38 C.F.R. § 3.159 (c)(4)(i) (2016); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this matter, the Veteran's STRs and private treatment records indicate complaints for a skin disability. Specifically, the Veteran made complaints of dry, itchy skin and exhibited a rash on his groin area in-service. The Veteran has a diagnosis of psoriasis which is noted on his upper and lower extremities, left ear, scalp, buttock, and groin areas during the appeal period. The Veteran has asserted that his skin condition has been ongoing since service. Therefore, the Board finds that the Veteran has satisfied the "low" threshold set forth in McLendon. A VA examination is warranted to determine whether the Veteran's current psoriasis is etiologically related to active duty. See McLendon, 20 Vet. App. at 83; 38 C.F.R. § 3.159 (c)(4) (2016). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any skin disability, to include psoriasis, that may be present, or was present during the claim. Any and all appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner must review the claims file, to include this REMAND, and must note that review in the report. Following review of the claims file and in-person examination, the examiner must provide the opinion on the following: (a) Determine whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's skin disability (i) had its onset during service, or (ii) is otherwise related to his active service. *The examiner must consider statements from the Veteran regarding the onset of his skin symptoms in-service and his intermittent skin symptoms since service. *The examination report must include a complete explanation for the opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. 2. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs