Citation Nr: 1757541 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-17 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agents. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1963 to September 1966. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO) and an October 2014 rating decision by the Waco, Texas, VA RO. The Veteran's record is now in the jurisdiction of the San Diego, California, RO. In August 2017 a videoconference hearing was held before the undersigned; a transcript is in the record. The issue of entitlement to a TDIU rating is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. It is reasonably shown that the Veteran served on inland waterways in the Republic of Vietnam during the Vietnam Era. 2. The Veteran has a diagnosis of an ischemic heart disease (coronary artery disease (CAD)). CONCLUSIONS OF LAW The Veteran is entitled to a presumption of exposure to Agent Orange; service connection for ischemic heart disease based on a presumption that it is due to exposure to herbicide agents in service is warranted. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a)(e) 2017. REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA applies to the instant claim. However, inasmuch as the decision grants the benefit sought, there is no reason to belabor the impact of the VCAA on this matter; any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include ischemic heart disease) may be service connected on a presumptive basis as due to exposure to herbicide agents if manifested in a Veteran who served in the Republic of Vietnam during the Vietnam Era. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or does not show, with respect to the claim. It is not in dispute that the Veteran has an ischemic heart disease. His postservice treatment records show he receives ongoing treatment for CAD, first diagnosed in 1997. Furthermore, ischemic heart disease is included in the list of disease that may be presumed to be service connected as due to exposure to herbicide agents if manifested in a Veteran who served in Vietnam. The remaining (and here dispositive) question is whether or not the Veteran served in the Republic of Vietnam (to include inland waterways) during the Vietnam Era, as alleged. The Veteran contends that he entered the inland waterways of Vietnam onboard the USS Henderson in December 1965. His service personnel records show that he was transferred for duty to the USS Henderson in April 1964 and transferred for separation from the USS Henderson in August 1966. His enlistment performance record shows he was onboard the USS Henderson when performance appraisals were completed in May and November 1964, and May and November 1965. VA's ship list indicates that the USS Henderson operated on the Saigon River (inland waterway) on December 17, 1965. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, November 1, 2017. A March 1966 administrative remark notes that the USS Henderson was designated eligible for hostile fire pay for the period of December 1, 1965 to December 31, 1965. The Veteran was determined qualified for hostile pay for such period of time. Cumulatively, the above information regarding the Veteran's duty assignment and the location of the ship he was on reasonably establishes his presence on the USS Henderson on December 17, 1965 (when it entered the Saigon river), and that he indeed served on an inland waterway in the Republic of Vietnam during the Vietnam Era. Therefore, he is entitled to consideration of the instant claim under the presumptive provisions of 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Applying those provisions the Board finds that the Veteran's ischemic heart disease may be presumed to be service connected on the basis that it is due to his exposure to herbicide agents in Vietnam during the Vietnam Era; service connection for ischemic heart disease (to include CAD) is warranted. ORDER Service connection for ischemic heart disease is granted. REMAND The Veteran contends that he is unable to maintain substantially gainful employment due to his service connected disabilities. The Board's decision above grants him service connection for CAD. The posture of the claim for TDIU has changed, and due process requires that the AOJ be afforded initial opportunity to consider the TDIU claim in light of the award of service connection for CAD. Accordingly, the case is REMANDED for the following: The AOJ should review the expanded record, implement the award of service connection for CAD, assigning a disability rating for the disability, and readjudicate the claim for TDIU in light of the award. If TDIU remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs