Citation Nr: 1754088	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  13-21 771A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for coronary artery disease, including as a result of exposure to herbicide agents.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Ferguson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1953 to June 1955 and from April 1956 to June 1980.
This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  Jurisdiction is currently under the RO in St. Petersburg, Florida

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  The Veteran was diagnosed with coronary artery disease.

2.  The evidence is at least evenly balanced as to whether the Veteran was exposed to herbicide agents while serving at the U-Tapao Royal Thai Air Force Base.


CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, coronary artery disease is presumed to have been incurred in service.  38 U.S.C. §§ 1110, 1116, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In this case, the RO sent the Veteran a letter in February 2011 informing him that the RO was conducting a special review of his file to determine if he was entitled to retroactive benefits for coronary artery disease, as it was added to the list of diseases presumptively associated with exposure to certain herbicide agents.  The letter informed the Veteran of what evidence was necessary to substantiate his claim.

Additionally, the Veteran has not alleged and the record does not show that there is outstanding evidence relevant to the issue of entitlement to service connection.  All of the pertinent information is of record.  As such, the Board finds the VA's duty to assist in this case has been met.  Based on the foregoing, there is no prejudice to the appellant in proceeding to consider his claim for this benefit.

II.  Coronary Artery Disease

The Veteran is seeking entitlement to service connection for coronary artery disease, including as a result of exposure to herbicide agents.  Specifically, the Veteran claimed in his August 2013 VA Form 9 that he was exposed to Agent Orange as a result of his involvement in constructing buildings, runways, and underground sewage lines, among other things, while stationed at the U-Tapao Royal Thai Air Force Base (RTAFB).  He further contends that his duties as a Plumbing Supervisor regularly placed him within close proximity of the base perimeter.  

If a Veteran was exposed to an herbicide agent during active military, naval or air service, coronary artery disease shall be service connected if the requirements of 38 C.F.R. § 3.307(e) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(e) are also satisfied.  38 C.F.R. § 3.309(e).  For the purposes of 38 C.F.R. § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.  38 C.F.R. § 3.307(a)(6)(i).  Agent Orange is generally considered an herbicide agent and will be so considered in this decision.

VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR).  VA has 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 "Project CHECO Southeast Asia Report: Base Defense in Thailand."  Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases.  This allows for presumptive service connection of the diseases associated with herbicide exposure.

The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang.  If a Veteran served on one of these 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 an appropriate MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis.  However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q).

Notwithstanding the foregoing presumptive provisions, the Federal Circuit has determined that 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); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997).  Thus, presumption is not the sole method for showing causation.

Service personnel records reflect that the Veteran served at U-Tapao RTAFB in Thailand from August 1967 to April 1968.  His duties during this time were listed as Plumbing Supervisor, and service personnel records for the period from June 1967 to May 1968 indicated that his responsibilities were planning and scheduling work of plumbing activities; supervising plumbing personnel; maintaining, installing, repairing and replacing sinks, lavatories, commodes, water lines, sewage lines and hydrants; and performing hydrostatic tests.

In addition to his claims in his August 2013 VA Form 9 noted above, the Veteran indicated in a January 2012 report of general information that as a plumber with the Red Horse Squadron his in-service duties required him to "help build the base, from clearing underbrush to building dining facilities."  He further claimed that this required him to frequently work in close proximity to the perimeters of U-Tapao RTAFB.  

The Board has considered the evidence of record, as well as the documented use of herbicides at the location he is shown to have been stationed, and finds that the preponderance of the evidence shows that he was, based on his duties and his location, exposed to herbicide agents while in Thailand.  The Veteran served on one of the air bases where exposure was possible and reported that his required duties brought him in close proximity to the perimeter of U-Tapao RTAFB.  Resolving all reasonable doubt in favor of the Veteran and absent any evidence to the contrary, the Board finds his contentions credible. 

Given the above, the Board concludes that the Veteran is entitled to presumptions based on herbicide agent exposure.  See 38 C.F.R. §§ 3.307, 3.309.  Moreover, the record establishes that the Veteran has a diagnosis of coronary artery disease.  As such, service connection for coronary artery disease is granted as due to in-service herbicide agent exposure.


ORDER

Entitlement to service connection for coronary artery disease is granted.



____________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs