Citation Nr: 1751778 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 05-09 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a heart disability, to include ischemic heart disease (IHD) and coronary artery disease (CAD), claimed as secondary to exposure to chemical agents, to include herbicides and/or insecticides. 2. Entitlement to service connection for hyperlipidemia, claimed as secondary to exposure to chemical agents, to include herbicides and/or insecticides. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran, the appellant, and Mr. J.S. ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active military service from October 1968 to October 1972, and from November 1976 to July 1983. The Veteran denied in November 2010. The appellant is his surviving spouse and has been properly substituted in this case. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction was subsequently transferred to the Pension Management Center in St. Paul, Minnesota. In connection with this appeal, the Veteran testified at a hearing before a Veteran's Law Judge in April 2008, prior to his death. A transcript of that hearing is associated with the claims file. Once properly substituted as the appellant in this case, the Veteran's spouse was afforded her own opportunity to provide testimony at a hearing before a member of the Board. The appellant and Mr. J.S. did in fact testify at a hearing before the undersigned Veterans Law Judge at the RO in August 2017. A transcript of that hearing has been associated with the claims file. This matter was previously before the Board. In a December 2013 decision, the Board denied the claim for entitlement to service connection for hyperlipidemia currently on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2015 Memorandum Decision, the Court vacated the Board's denial of the claim and remanded it to the Board for action consistent with the Memorandum Decision. In particular, the Memorandum Decision noted that a remand was warranted so that the RO could address the intertwined claim for entitlement to service connection for ischemic heart disease that was not before the Board. The Board remanded this case in June 2016, and May 2017 for additional development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran had service at the Nakhon Phanom Royal Thai Air Force Base (RTAFB) from approximately February 1971 to February 1972, as a vehicle operator and light equipment operator. There is no evidence of duty or visitation in the Republic of Vietnam and the most probative evidence of record does not indicate that the Veteran was exposed to Agent Orange or other herbicides during his active duty in Thailand. 2. A heart disability, to include IHD and CAD, was not present during active service or within one year following the Veteran's separation from active service, and is not otherwise etiologically related to the Veteran's active service. 3. Hyperlipidemia does not constitute a disability for VA purposes. CONCLUSIONS OF LAW 1. A heart disability, to include IHD and CAD, was not incurred in or aggravated by active service, and the incurrence or aggravation of a heart disability during active service may not be presumed. 38 U.S.C. §§ 1101, 1110, 1112, 1131 (2012); 38 C.F.R §§ 3.303, 3.307, 3.309 (2017). 2. Hyperlipidemia was not incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to Service Connection for a Heart Disability The appellant has asserted that the Veteran was exposed to herbicides while serving in Thailand and developed a heart disability as a result of such exposure. First, the Board notes that the Veteran received the Vietnam Service Medal (VSM). However, such a medal is not indicative of service on the landmass of the Republic of Vietnam or inland waterways. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The service personnel records reflect that the Veteran served in Thailand and the Veteran testified that he did not serve in the Republic of Vietnam. Instead, he explained that he is entitled to presumptive service connection on the basis that he was exposed to herbicide agents in Thailand. In that regard, he stated that he serviced aircrafts that sprayed herbicides in Vietnam, that his barracks were sprayed with herbicides, and that he was around barrels of herbicides. The service personnel records show that the Veteran was stationed at the Nakhon Phanom RTAFB from approximately February 1971 to February 1972 as a vehicle operator and light equipment operator. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. VA determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes, as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Consideration of herbicide exposure on a presumptive basis is extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. The majority of troops in Thailand during the Vietnam era were stationed at the RTAFBs of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a Veteran served on one of those air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, that applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. In addition, a Memorandum for the record regarding herbicide use in Thailand during the Vietnam Era was associated with the claims file. The RO contacted the Center for Unit Records Research (CURR) (currently U.S. Army and Joint Services Records Research Center (JSRRC)) to determine whether the Veteran was exposed to herbicides. In a response from CURR, it was noted that the available 1971 and 1972 history submitted by the 56th Special Operations Wing (SOW), stationed at Nakhon Phanom RTAFB in Thailand and the higher headquarters for the 56th Transportation Squadron and additional available historical data were reviewed. After a review of the data, they were unable to document or verify that the Veteran was exposed to Agent Orange or tactical herbicides or that his duties required him to be on or near the perimeter of the base. To date, available historical data does not document Agent Orange or tactical herbicide spraying, testing, or storage at Nakhon Phanom RTAFB during the 1971 or 1972 time frame. The Board notes that an incorrect name was used in the response. However, in a subsequent response from CURR, it was noted that the error was a typo. Indeed, the correct social security number was displayed in the response. In another response, the January through April 1972 history submitted by the 56th Special Operations Wing (SOW), stationed at Nakhon Phanom RTAFB and additional available data was reviewed. The data did not report on personnel or unit members' exposure to Agent Orange or their proximity to the base perimeter. Therefore, they were unable to document or verify that the Veteran was exposed to Agent Orange or tactical herbicides. It was noted that the name listed in the previous response was a typo. The Board notes that the Veteran has neither claimed having served as security policeman, security patrol dog handler, member of a security police squadron, nor has he indicated that he otherwise served near the air base perimeter. Neither the Veteran nor the appellant contended that he was ever involved in tests of tactical herbicides used at the Pranburi Military Reservation from April to September 1964, and the VA memorandum notes that other than the 1964 tests on the Pranburi Military Reservation, tactical herbicides were not used or stored in Thailand. VA has acknowledged that some Operation RANCH HAND aircrafts flew insecticide missions in Thailand from August 1963 to September 1963 and in October 1966. However, the Veteran was not in Thailand in 1963 or 1966. With respect to insecticides, small-scale herbicide usage to clear weeds in and around the bases and airstrips were commercial products and not Agent Orange or tactical herbicides. VA has determined that there are no presumptions based on exposure to commercial herbicides. If the Veteran was exposed to commercial herbicides in Thailand, his exposure risk would be similar to exposure to the commercial herbicides sold and used in the United States. Here, the Veteran stated that his barracks were sprayed and that Thai civilians drove trucks onto the base to spray Agent Orange through the barracks to prevent insect infestation. However, the Veteran is not considered competent to state that those were herbicide agents and not commercial herbicides. In this regard, the record does not demonstrate that he had any special training or knowledge so as to render him competent in that regard. To the extent that the Veteran stated that his barracks were sprayed with herbicides and that herbicides were stored in barrels at the Nakhon RTAFB, the record does not support the Veteran's assertions. As noted by the CURR, the available historical data did not document Agent Orange or other tactical herbicides were sprayed or tested at the Nakhon RTAFB during the Veteran's period of active service. As such, the Veteran's statements regarding use of Agent Orange or other tactical herbicides around the barracks are not probative. In regard to the contentions raised by the Veteran regarding secondary exposure to herbicides from servicing aircrafts, the Board finds that such an assertion is inherently speculative so as to not constitute credible evidence of exposure to herbicides. Furthermore, VA has acknowledged the absence of medical studies that show harmful health effects from such secondary or remote herbicide contact that may have occurred. The appellant and the Veteran submitted evidence consisting of symptoms of exposure to Agent Orange, photos of barrels on the Korat RTAFB (where the Veteran did not serve), maps of Thailand, photographs of aircrafts, a research paper regarding Herbicide use in Thailand and Laos, and articles regarding the use of insecticides and herbicide agents in Vietnam. With respect to the research paper, the author noted Operation RANCH HAND, during which the Veteran was not stationed in Thailand. The paper also indicated that missions were flown in the late 1960s and 1970 to spray herbicides in Vietnam. The paper referenced Project CHECO and vegetation control in Thailand. It was noted that the Nakhon Phanom RTAFB used herbicides to keep the growth under control in the fenced areas. As noted above, VA has acknowledged the use of commercial herbicides to control vegetation. The paper does not provide sufficient evidence to determine that the Veteran in this case was exposed to herbicides to warrant presumptive service connection. Again, the evidence does not reflect that the Veteran served along the perimeters of the base or otherwise had direct contact with herbicides. Again, secondary exposure to herbicides has not been recognized. There is also evidence from websites regarding recollections of veterans who served in Thailand in the Vietnam Era and the contentions regarding the use of insecticides and herbicide agents on the bases. However, that evidence is not sufficient to show that the Veteran himself was exposed to herbicides during his period of active duty. Again, the contentions of other veterans regarding herbicide use are speculative regarding what herbicides were used. Accordingly, the Board finds that service connection on a presumptive basis due to exposure to certain herbicide agents is not warranted. 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing presumption provisions, the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a Veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board finds that service connection is not otherwise warranted on a direct-incurrence basis. Service treatment records are silent for complaints of, treatment for, or a diagnosis of a heart disability while the Veteran was in active service. The reports of medical examination dated August 1972, October 1983, and August 1991 do not reflect any documentation related to a heart disability. There is no indication of a heart disability within one year of service discharge, or until years later. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). Indeed, the Veteran himself acknowledged that his heart disability had its onset years after active service. The Board recognizes the Veteran's and the appellant's contentions that the Veteran's heart disability is related to exposure to herbicides and insecticides during his period of active duty. However, as noted above, exposure to herbicides has not been established and they have not contended that the disabilities are otherwise related to active service. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See, Davidson v. Shinseki, 581 F.3d 1313, 1316 9Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As to a nexus opinion relating any disability to exposure to herbicides or insecticides, the Board finds that the etiology of the Veteran's heart disability is a complex medical question. Neither the Veteran nor the appellant have been shown to possess medical knowledge or expertise and are therefore not competent to provide opinions as to the etiology of that disability. See also, Kahana v. Shinseki, 24 Vet. App. 428 (2011). A private medical record indicated that the Veteran reported exposure to Agent Orange while serving in Vietnam. The private physician did not elaborate or provide an opinion relating the Veteran's heart disability to active service. The Board finds that this history, reported by the Veteran, is not competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (The mere transcription of medical history does not transform the information into competent evidence merely because the transcriber happens to be a medical professional.). With respect to any continuity of symptomatology, the Veteran and the appellant did not provide any statements regarding the continuity of symptoms since service. The evidence does not otherwise reflect continuity of symptoms since active service. Therefore, service connection based on continuity of symptomatology is not warranted. 38 C.F.R. § 3.303(b). Finally, certain diseases, such as arteriosclerosis and endocarditis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. However, there is no evidence that the Veteran had a heart disability that was manifest to a compensable degree within one year of discharge from active duty. Therefore, presumptive service connection is not warranted. Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a heart disability, to include IHD and CAD, is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App 49, 53-56 (1990). Entitlement to Service Connection for Hyperlipidemia Hyperlipidemia is a laboratory finding and is not a disability in and of itself for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.) The term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may not be granted for a laboratory finding, standing alone. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Board acknowledges the cases of McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) and Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). However, the Veteran has not been shown to have a disability at any point during the claim period or prior to his filing a claim for service connection as service connection may not be granted for a laboratory finding, standing alone. The only evidence of record supporting the claim is the various lay assertions of the Veteran and the appellant. Neither the Veteran nor the appellant have been shown to be qualified to provide a diagnosis or an opinion that the Veteran had a disability manifested by hyperlipidemia. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for hyperlipidemia is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App 49, 53-56 (1990). ORDER Entitlement to service connection for a heart disability, to include IHD and CAD, is denied. Entitlement to service connection for hyperlipidemia is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs