Citation Nr: 1800037 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 13-12 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. ATTORNEY FOR THE BOARD L. Bush, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1960 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In May 2017, the Board remanded the issue on appeal for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The preponderance of the evidence is against the finding that the Veteran was exposed to herbicides such as Agent Orange during service in Thailand. 2. Ischemic heart disease is not shown to have been manifest during active service, was not manifest within one year of service, and a preponderance of the evidence fails to establish that it is etiologically related to active service. CONCLUSION OF LAW The criteria to establish service connection for ischemic heart disease are not met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it will notify the claimant of: (1) the information and medical or lay evidence that is necessary to substantiate the claim; (2) the portion of the information and evidence that VA will obtain; and (3) the portion of the information that the claimant is to provide. 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). The RO provided pre-adjudication notice, by letter, in March 2014. In pertinent part, this letter notified the Veteran of the evidence needed to substantiate his service connection claim, as well as the information and evidence that must be submitted by the Veteran, the information and evidence that would be obtained by VA and for the effective dates of the claims. The Board finds that VA has fulfilled its duty to notify the Veteran. VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim. See 38 U.S.C. § 5102 (A)(d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017). Service treatment records, post-service treatment records, and lay statements have been associated with the record. VA also provided a VA examination in July 2017 with addendum opinions rendered in July 2017 and August 2017. The Veteran has not identified any additional relevant evidence, nor does the record otherwise indicate that there is outstanding relevant evidence to obtain. Thus, the Board concludes that no further assistance is required for VA to comply with its duty to assist. Service Connection for Ischemic Heart Disease The Veteran maintains that he has ischemic heart disease resulting from Agent Orange exposure in Thailand. The Veteran maintains that while serving in Thailand, he was involved with clearing brush around guard trails and used herbicides, specifically Agent Orange to do so. 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. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 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 between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a) (3) (2012); 38 C.F.R. § 3.307 (a)(6)(iii) (2017). Exposure to Agent Orange may also be established on a factual basis for veterans whose duties placed them on or near the perimeters of Thailand military bases. VBA Manual M21-1, IV.ii.1.H.5. The list of diseases associated with exposure to certain herbicide agents includes ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 38 C.F.R. § 3.309 (e) (2017). Certain chronic diseases, including ischemic heart disease, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307 (a) (3), 3.309(a) 2017. Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, there is no material dispute that the Veteran is diagnosed with ischemic heart disease. This diagnosis is reflected in VA Treatment records and in the Veteran's July 2017 VA examination. Thus, a current diagnosis of ischemic heart disease is established. There is also no material dispute that the Veteran served in Thailand during the Vietnam War. His service records indicate that he served as an engineering equipment mechanic during this time assigned to A Company 809th Engineer Battalion Construction from March 7, 1962 to August 2, 1962 in Thailand. The unit was responsible for providing asphalt paving operations for the construction of the Bangkok By-Pass Road (Freedom Highway) extended from Cachoengsao in Eastern Thailand near Kabinburi. See Military Personnel Records. What remains in dispute is whether the Veteran was exposed to herbicides, specifically Agent Orange, while serving in the aforementioned capacity. The Board finds that the preponderance of the evidence weighs against a finding that the Veteran was exposed to herbicides, to include Agent Orange, while in service. The Use of Herbicides Thailand memorandum, which was declassified in 2007, indicates that the use of herbicides, to include Agent Orange, post-dates the Veteran's service dates and occurred in locations other than where the Veteran was stationed. The Board further notes that with regard to exposure to herbicides outside of Vietnam, VA's Adjudication Procedures Manual, M21, states that if a Veteran served with the Air Force at several Royal Thai Air Force Bases (RTAFBs), including Udorn, during the Vietnam Era and was stationed near the air base perimeter as shown by evidence of daily work duties, performance evaluations, or other credible evidence then herbicide exposure should be conceded. See M21, IV.ii.2.C.10.q. The Veteran as noted served in another capacity. The Board now turns to whether service connection may be granted on a direct-incurrence basis or on the basis of continuity of symptomatology. As previously discussed, the Veteran has been diagnosed with ischemic heart disease, thereby satisfying the first element of direct service connection. See VA Treatment Records. As service treatment records are negative for complaint, treatment, or diagnosis of a cardiovascular disorder and the Board has found that the Veteran was not exposed to herbicides, to include Agent Orange, while in service, there is no evidence of an in-service event, disease, or injury to satisfy the second element of direct service connection. Nor does the medical evidence reflect that the Veteran's ischemic heart disease manifested within a year of active duty service. He does not argue the contrary. A preponderance of the evidence fails to establish that it is etiologically related to active service. There is simply no objective medical evidence to support such a finding. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, the preponderance of the evidence is against the Veteran's claim. ORDER Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure is denied. ____________________________________________ Bradley W. Hennings Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs