Citation Nr: 1718960 Decision Date: 05/30/17 Archive Date: 06/06/17 DOCKET NO. 13-03 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for ischemic heart disease, claimed as arteriosclerosis, due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.Yeh., Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1969 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut. The Veteran testified at a Board hearing in June 2013. A copy of the hearing transcript is associated with the claims file. The matter was previously before the Board in April 2015. Then, the Board remanded the claim for verification on the Veteran's Vietnam assignment location to support his contention that his ischemic heart disease was caused by exposure to Agent Orange during his service. Although the Veteran's military personnel record listed the Republic of Vietnam in his campaign history, the Joint Services Records Research Center (JSRRC) was unable to verify that the Veteran was in fact stationed there. The matter is now back before the Board for appellate consideration. FINDINGS OF FACT The Veteran served in Thailand, but exposure to herbicides/Agent Orange is not verified and may not be presumed. The Veteran's ischemic heart disease did not manifest within one year after discharge from service, and there is insufficient evidence linking the condition to service, to include herbicide poisoning. CONCLUSION OF LAW Ischemic heart disease was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103(A) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2016). VA provided adequate notice for the Veteran's claims of service connection in a letter sent to the Veteran in April 2015. In that letter, the VA advised the Veteran what information was needed to substantiate a claim for service connection. Next, VA has a duty to assist the claimant in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein, including the Veteran's records from the Social Security Administration as well as his military records from the Joint Services Records Research Center (JSRRC). The Board recognizes that the Veteran has not been afforded an examination for the condition currently on appeal. VA must provide a medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court in McLendon observed that the third prong, which requires an indication that the claimant's disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, although the first McLendon element appears to be satisfied as the VA treatment records submitted by the Veteran show a diagnosis of ischemic heart disease, there is no competent and credible evidence of record establishing that an event, injury, or disease affecting the Veteran's cardiovascular system occurred during his period of active duty. Furthermore, the Veteran has not specifically claimed that he underwent relevant treatment or experienced related symptoms while in service. Rather, the Veteran has testified that he believes the remote onset of his ischemic heart disease is due to in-service herbicide exposure, and as a result, he believes presumptive service connection is warranted under 38 C.F.R. § 3.309 (e). The Veteran has provided only a blanket assertion, if any, that his heart disease is related to service in any other way and has failed to allege any specific facts linking the conditions to active duty, other than exposure to herbicides. For this reason, and as he is not otherwise competent to testify with respect to complex medical issues such as a heart disease, the Board concludes that the second and third McLendon elements are not satisfied, and a return of this issue to the RO for additional development or consideration is not required. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service and VA treatment records, and the Veteran's military personnel records to verify his presence in South East Asia, specifically in Vietnam and Thailand. II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38. U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a)(2016). "To establish a right to compensation for a present disability, a Veteran must show," (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e. a nexus, between the present disability and the disease or injury incurred or aggravated during service." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Certain diseases, such as arteriosclerosis, may be presumed to have been incurred in service when 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. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden elements for certain chronic disabilities, such as arteriosclerosis, is through a demonstration of continuity of symptomatology. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C.A. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a separate matter, the Board must determine whether lay evidence is credible, and factors such as possible bias, conflicting statements, and the absence of contemporaneous medical evidence may be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see also Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005) (Board has duty to determine the credibility and probative weight of the evidence); Smith v. Derwinski, 1 Vet.App. 235, 237 (1991) ("Credibility is determined by the fact finder."). With respect to herbicide exposure, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at 38 C.F.R. § 3.309 (e) shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, 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)(iii). Diseases associated with herbicide exposure for purposes of the presumption include arteriosclerosis. 38 C.F.R. § 3.309 (e). VA has extended the presumption of exposure to Agent Orange and the presumption of service connection for arteriosclerosis to a Vietnam-era veteran who served in Thailand at certain designated bases, and whose duties placed him or her on or near the perimeter of the base where Agent Orange was sprayed. VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, 2.C.10. VA has identified several bases in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, that qualify for this consideration. As such, herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence, during the Vietnam era, from February 28, 1961, to May 7, 1975. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H (5) (emphasis added). In his June 2012 Notice of Disagreement, the Veteran contends that during his military service, he was exposed to Agent Orange when he was stationed in the Republic of Vietnam and Thailand. He stated that he was in Long Binh and was 'on standby' duty at Cam Rahn Bay, Vietnam for approximately six to twelve days and was ultimately later sent to Thailand. There, he reported to U-Tapao Air Force Base approximately eight to nine times, spending two to three days each time. The Veteran asserts that despite his regular duty as a general vehicle mechanic, he was required to guard the perimeter where planes utilized to spray Agent Orange entered and exited from. Furthermore, he stated that he also reported to Korat Air Force Base in Thailand and had orders in Udon and Ubon. In the attempts to verify the Veteran's overseas military assignments, his entire personnel records were requested from JSRRC. The Veteran's DD Form 214 indicates that he served in the United States Army and that his MOS was a General Vehicle Mechanic during his time with the 562nd Maintenance Company Unit when it was stationed in Thailand. In July 2011, RO issued a rating decision finding that there was a lack of information required to corroborate the Veteran's contention that he was exposed to herbicides due to his physical placement in the pertinent areas in South East Asia. With respect to the Veteran's contention that he was within the Republic of Vietnam, the Board finds that the evidence does not support the Veteran's position. The Board acknowledges that Veteran was awarded with a Vietnam Campaign Medal as well as a Vietnam Service Medal. However, the VA's Adjudication Manual instructs that receipt of either medals is not by itself sufficient proof of Vietnam service for the purpose of proving Agent Orange exposure. See M2-1, IV.ii.1.H.1.g (updated March 3, 2017). The Vietnam Service Medal and the Vietnam Campaign Medal may be given to service members who were stationed on ships offshore or flew high altitude missions over Vietnam. There is nothing in the Veteran's DD Form 214 that indicates that he served aboard any ships or aircrafts while in service. Nor does his DD Form 214 show a tour of duty in the Republic of Vietnam. With respect to the Veteran's assertion that he was exposed to Agent Orange in Thailand, there is no indication in his personnel records that he served in the capacity of a guard around the perimeter of U-Tapao and Korat Air Bases. The Board recognizes that the occupational specialties listed as having presumed exposure to herbicides in Thailand were those service members whose duties included actually walking the perimeter of the airbases. While the Board notes the Veteran's contention of such temporary assignments, the Veteran has not provided any additional evidence to support the contention that he was assigned to temporary guard duty around the perimeter of the air bases. As a result, the Board cannot concede exposure to herbicides on account of duty at either bases. The Board is mindful of the Veteran's sincere belief that he was directly exposed to herbicides while serving in Thailand. In light of his statements in this case, and upon review of his service personnel records, the Board finds that the weight of the credible evidence is against finding that he was exposed to herbicides while stationed in Thailand or the Republic of Vietnam. The Veteran's diagnosis of heart disease (aortic insufficiency, mitral regurgitation) was not made until approximately 1988, at least eight years after separation from active duty. Accordingly, service connection on a presumptive basis as a "chronic" disease may not be granted as there is no evidence of a heart condition in service or within one year of discharge. See 38 C.F.R. §§ 3.307, 3.309. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a heart disease as secondary to herbicide exposure is not warranted. Service connection on a direct basis is not warranted as service treatment records are negative for treatment or complaint of an ischemic heart disease and there is no evidence that the Veteran's heart condition is related to his service on a direct basis. Furthermore, there is no competent evidence or opinion otherwise suggesting that a medical nexus exists between his ischemic heart disease and the Veteran's service, to include as secondary to herbicide exposure. The only evidence linking the ischemic heart condition to service is the Veteran's own statements. To the extent that the Veteran contends that a medical relationship exists between his claimed current disability and service, the Board finds that the Veteran does not have the medical expertise to provide an opinion regarding the etiology of a heart disease. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Thus, the Veteran's assertions that there is a relationship between his ischemic heart condition and his service, to include as secondary to herbicide exposure, are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection and the claim must be denied. 38 C.F.R. §§ 3.1, 3.102, 3.303. ORDER Entitlement to service connection for an ischemic heart disease claimed as arteriosclerosis, due to herbicide exposure, is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs