Citation Nr: 1715048	
Decision Date: 05/05/17    Archive Date: 05/11/17

DOCKET NO.  14-33 166	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, Alaska


THE ISSUE

Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel

INTRODUCTION

The Veteran had active service from March 1967 to August 1969.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in September 2015.  A transcript is of record.

In December 2016, the Veteran submitted correspondence which the Board has construed as a Motion to Advance his case on the Docket based on financial hardship.  He submitted copies of some bills as evidence of financial hardship.  The Board concludes that this evidence does not demonstrate the kind of "severe" financial hardship contemplated by the regulation.  38 C.F.R. § 20.900.  Therefore, the Motion to Advance the case on the Docket is denied based on financial hardship.  However, as noted below, the Board has advanced the case on the docket due to the Veterans Law Judge's impending retirement.

The Board is required by law to review appeals in docket order unless unusual hardship or "other sufficient causes" have been shown to advance a case on the docket.  38 U.S.C.A. § 7107(a) (West 2014).  In March 2015, VA's Deputy General Counsel for Legal Policy advised that the Board is not precluded from advancing cases on the docket under 38 U.S.C.A. § 7107(a)(2)(C) and 38 C.F.R. § 20.900(c)(1) in consideration of a VLJ's pending retirement if such action would "produce fair, efficient, timely, [and] effective review of appeals", but also "fairness in adjudications among and between veterans."  Ramsey v. Nicholson, 20 Vet. App. 16, 34 (2006).  Such advancement is not automatic.  

Here, the undersigned will be retiring and the appeal is currently outside the "workable docket."  Nevertheless, in this case, the Board has considered the benefit to the appellant, the impact on other claimants that would result from advancing his case, and the impact on other claimants that would result if the case is not advanced, and has decided that advancement on the docket for the sole purpose of rendering this decision is fair and appropriate at this time. 


FINDINGS OF FACT

1.  Giving the benefit of the doubt to the Veteran, he was exposed to herbicide agents during his active service.

2.  The Veteran has ischemic heart disease to a compensable degree.


CONCLUSION OF LAW

The criteria for service connection for ischemic heart disease have been met.  38 U.S.C.A. §§ 1110, 1116, 1131, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.104, Diagnostic Code 7005 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016).  Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.  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).  

To establish service connection for a disability, there must be competent evidence of the following:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2014) and its implementing regulation, 38 C.F.R. § 3.304(d) (2016), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The Veteran's service personnel records show that he is authorized to wear the Combat Action Ribbon because of service on the USS Lynde McCormick while it was under attack by enemy forces in February 1968.

Service connection will also be presumed for certain chronic diseases, including cardiovascular disease, if manifest to a compensable degree within one year after discharge from service.  See 38 C.F.R. §§ 3.307, 3.309 (2016).

A veteran may be entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents if he served in the Republic of Vietnam during a prescribed period.  38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307, 3.309.  Atherosclerotic heart disease and hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, and arrhythmia) are among the diseases listed as presumptive to such exposure.

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (the Vietnam Era) 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).

"Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.313(a) (2016); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of § 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

The Veteran's service personnel records show that he served on the USS Lynde McCormick from January 1968 to July 1969 and that during this time the ship was in waters contiguous to the Republic of Vietnam.  The Dictionary of American Navel Fighting Ships states that from August 1967 to April 1968 the Lynde McCormick saw action on the gun line and in patrolling the Vietnam coastline.  The ship then returned to the eastern Pacific into 1969.  Information beyond then regarding the ship's location was not provided.

The Veteran testified at the September 2015 Board hearing that he was serving on the USS Lynde McCormick on April 1, 1969, when he was notified that his father had been in a serious car accident and was not expected to survive.  The Veteran was given leave and was picked up by a swift boat and was dropped off at Phung Tao to catch a troop transport, and he remained there for four hours.  The Veteran then went by transport to Saigon, where he waited for five hours for a flight to Hawaii.  The Veteran also testified regarding an incident in which the ship was in a stream, and he was covered with powder that was dropped from helicopters.  

Giving the benefit of the doubt to the Veteran, the Board finds that the Veteran was in the inland waterways of Vietnam and was briefly on land in Vietnam during service.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.313(a).  Therefore, it can be presumed that he was exposed to herbicide agents.  38 C.F.R. § 3.307(a).

A private treating cardiologist wrote in July 2014 that the Veteran was diagnosed with cardiovascular disease in late 2002, at which time he underwent coronary artery bypass grafting.  He wrote in September 2015 that the Veteran's young age of 54 at the time of diagnosis of coronary artery disease and exposure of Agent Orange suggest causality between Agent Orange and coronary artery disease.  October 2013 private cardiology treatment records show that coronary artery disease is treated with medication.  Therefore, the manifestations are likely to a compensable degree.  See 38 C.F.R. § 4.104, Diagnostic Code 7005.  

Accordingly, the Veteran's ischemic heart disease is presumed to be due to service in the Republic of Vietnam during the Vietnam Era.  See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309.  As such, the Board concludes that service connection for ischemic heart disease is warranted.



ORDER

Service connection for ischemic heart disease is granted.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs