Citation Nr: 1751493	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  12-31 746	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for coronary artery disease (CAD), status post coronary artery bypass graft, to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. Choi, Associate Counsel





INTRODUCTION

The Veteran, who is the appellant, served on active duty from July 1970 to January 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the RO in Huntington, West Virginia, which in pertinent part, denied service connection for CAD.
  
The Veteran requested a Board hearing in an October 2012 substantive appeal filed via VA Form 9, and a Travel Board hearing was scheduled for July 2014.  In a June 2014 Statement, the Veteran withdrew the request for a Board hearing.  As such, the hearing request is deemed withdrawn.  38 C.F.R. § 20.704(e) (2017).

In June 2015, the Board remanded the matter to the RO for further development.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Board finds that the June 2015 Board remand directives were complied with, and the matter has been properly returned to the Board for appellate consideration.  

The Board has reviewed the electronic files on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case.


FINDINGS OF FACT

1.	The Veteran was exposed to herbicide agents during service while stationed near the demilitarized zone (DMZ) in Korea.

2.	The Veteran is currently diagnosed with coronary artery disease, status post coronary artery bypass graft.


CONCLUSION OF LAW

Resolving all reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for coronary artery disease have been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017).  As the instant decision grants service connection for CAD, no further discussion of VA's duties to notify and to assist is necessary.

Service Connection for Coronary Artery Disease

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may 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).  Service connection generally requires (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 evidence of a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran is currently diagnosed with CAD (as cardiovascular-renal disease) which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as CAD, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  38 C.F.R. §§ 3.307, 3.309(a).  

Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313 (2017).  This presumption may be rebutted by affirmative evidence to the contrary.  38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309.

The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).  Accordingly, CAD is a disease for which presumptive service connection based on exposure to herbicides may be granted.  Id.  

The Department of Defense has also confirmed to VA that Agent Orange was used along the DMZ in Korea from April 1968 to July 1969.  Fields of fire between the front line defensive positions and the south barrier fence were defoliated.  The size of the treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line.  According to the Department of Defense, there was no indication that herbicides were sprayed in the DMZ itself. Herbicides were applied through hand spraying and by hand distribution of pelletized herbicides.  Although restrictions were put in place to limit potential for spray drift, run-off, and damage to food crops, records indicate that the effects of spraying were sometimes observed as far as 200 meters down wind. 

Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain veterans who served in Korea.  Specifically, VA added a new paragraph (iv) to 38 C.F.R. § 3.307(a)(6) that reads as follows: 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, operated in or near the Korean 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); see also 38 C.F.R. § 3.814(c)(2) (2017).

Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997).

When all the evidence is assembled, 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 a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran contends that service connection for CAD is warranted as due to in-service exposure to herbicides while stationed near the DMZ in 1971.  Specifically, in an October 2012 Statement, the Veteran asserts being stationed at Camp Howze and then at Camp Casey while in Korea.  In a May 2016 Statement, the Veteran describes his duties at Camp Howze and Camp Casey included digging trenches, cutting weeds, mowing grass, and working in the motor pool.  The Veteran states that he also served as a driver for one of the captains at Camp Casey and also drove to six or seven different outposts to deliver pay checks on pay days.

Initially, the Board finds that the Veteran is currently diagnosed with coronary artery disease.  A June 2012 VA examination report reflects a diagnosis of CAD, with a history of a coronary artery bypass graft in May 2004.

After a review of all the evidence, both lay and medical, the Board finds the evidence to be in relative equipoise on the factual question of whether the Veteran was actually exposed to herbicides during service, specifically, when he was stationed near the DMZ in Korea.  Military personnel records reflect that the Veteran served in Korea from December 1970 to January 1972, and that he was assigned to the 122nd Signal Battalion of the 2nd Infantry Division.  Although the Department of Defense has identified a number of units in the 2nd Infantry Division as having been assigned or rotated to areas near the DMZ where herbicides were used between April 1968 and August 1971, the 122nd Signal Battalion was not one of the units identified.  The record reflects that in response to a request for information, the Department of Defense was unable to locate the 1971 unit records for the 122nd Signal Battalion; however, the 1971 history submitted by the 2nd Infantry Division indicates that the 122nd Signal Battalion was located at Camp Casey, South Korea in 1971, which is approximately 13 miles from the DMZ.

Additional evidence weighing in favor of a finding of actual exposure to herbicides includes several paystubs from 1971 that show the Veteran was reassigned from the 122nd Signal Battalion, H Detachment to the 122nd Signal Battalion, Company B in June 1971, which coincides with when his duty station changed from Camp Howze to Camp Casey.  The Veteran also submitted several lay statements from S.W., who was stationed at Camp Howze from 1968 to 1969 when he was assigned to the 2nd Infantry Division, Chemical Company, which is a unit that the Department of Defense has identified as being assigned or rotated to areas near the DMZ where herbicides were used.  Further, S.W. described that his duties as part of the Chemical Company included applying herbicides in various areas in South Korea and near the DMZ.  S.W. also wrote that it was not uncommon for the Chemical Company to apply herbicides to areas such as camp perimeters, mess hall areas, and look out towers, and that herbicides were applied at Camp Howze and to the perimeter at Camp Casey.

Evidence weighing against exposure to herbicides includes a September 2010 formal finding that the Veteran's exposure to Agent Orange cannot be verified.  Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran was in fact exposed to herbicide agents during service when stationed near the DMZ in Korea in 1971.  See 38 C.F.R. §§ 3.307, 3.309.  

Because CAD is presumptively associated with herbicide exposure, service connection for CAD as a result of herbicide exposure is warranted on a presumptive basis.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  As service connection has been granted on a presumptive basis, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide.  See 38 U.S.C.A. §7104 (West 2014).


ORDER

Service connection for coronary artery disease, as due to herbicide exposure, is granted.





____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs