Citation Nr: 1805285 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-15 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hypertension, to include as due herbicide exposure. 2. Entitlement to service connection for ischemic heart disease, also claimed as coronary artery disease, to include as due herbicide exposure and/or as secondary to hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty in the Navy from March 1963 to February 1967, with additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the Coast Guard from April 1979 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2013 and June 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled for a Board hearing by videoconference in June 2017. The Veteran failed to appear for the hearing and his hearing request is thus considered withdrawn. 38 C.F.R. § 20.704 (d) (2017). FINDINGS OF FACT 1. The preponderance of the evidence fails to establish that the Veteran was exposed to herbicide agents (Agent Orange) during his active service. 2. The Veteran's hypertension was not shown during active duty or within a year of separation from a period of active duty, or during a period of ACDUTRA. 3. The Veteran's ischemic heart disease, also claimed as coronary artery disease, was not shown during a period of active duty or within one year of separation from a period of active duty, or during a period of ACDUTRA. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 1137, 1153, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2017). 2. The criteria for service connection for ischemic heart disease, also claimed as coronary artery disease, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 1137, 1153, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service Connection 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; 38 C.F.R. § 3.303. 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. 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). Service connection for certain chronic diseases, including hypertension and cardiovascular disease, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303 (b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current diseases and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303 (b). Certain evidentiary presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. The phrase "served in Vietnam" includes service on Vietnam's inland waterways (brown water) but not service in offshore waters (blue water). See VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, 1.H.2.a ("Agent Orange aerial spraying occurred within the land boundaries and affected the inland waterways... [but] was not sprayed over RVN's offshore waters."). Inland waterways include "those rivers, canals, estuaries, delta areas, and interior or enclosed bays within the land boundaries of RVN itself." Id. Offshore waters are waters other than inland waterways and generally comprise of the waters off the coast of RVN. Thus, Veterans who served on Vietnam's inland waterways are entitled to the presumption of service connection for certain herbicide diseases. Veterans who served in offshore waters-and never went ashore or entered inland waterways-do not qualify for the herbicide presumption. Haas v. Peake, 525 F.3d at 1187-1190 (upholding VA's interpretation of the applicable regulations as requiring that a veteran must actually have been present on the landmass ("foot-on-land") or inland waters of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure); VAOPGCPREC 27-97 (July 1997) (holding that service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not, in and of itself, qualify as "service" in Vietnam); VAOPGCPREC 7-93 (August 1993) (noting a distinction between larger ocean-going vessels, referred to as "blue water" vessels, and smaller "brown water" vessels that patrolled near shore or along rivers). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including ischemic heart disease, but not hypertension, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The term active military service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes, while INACDUTRA includes duty (other than full-time duty) prescribed for Reserves, as well as duty (other than full-time duty) performed by a member of the National Guard of any State. 38 C.F.R. § 3.6 (c), (d). Presumptive periods for service connection do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty or ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA, but the appellant is not entitled to the application of the presumption of soundness or the presumption of aggravation except for his active duty. 38 U.S.C.A. §§ 101 (24), 106, 1110. Claims based on a period of ACDUTRA or INACDUTRA are never entitled to the presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309 nor are they entitled to the presumption of aggravation. Smith v. Shinseki, 24 Vet. App. 40 (2010). Appellants who established veteran status for a prior period of service may be entitled to the presumption of soundness for a subsequent period of service under certain conditions. Id. at 45-46. For claims based on aggravation of a pre-existing condition during a period of ACDUTRA or INACDUTRA, the appellant must show that the condition worsened beyond its natural progression during the period of training and that the worsening was caused by the training. Id. at 48. Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Further, a disability which is aggravated by a service connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that he is entitled to service connection for hypertension and coronary heart disease as a result of Agent Orange exposure during service. He also asserted that he was initially diagnosed with hypertension during a period of ACDUTRA while serving in the National Guard, and that heart disease developed secondary to hypertension. In support of his contention that hypertension was initially diagnosed during ACDUTRA, the Veteran submitted a July 2013 statement from S.E.L. S.E.L. reported that he served as attending corpsman in the same Coast Guard Reserves unit as the Veteran in the 1980's and 1990's, and in the early 1980's the Veteran was observed to be borderline hypertensive. Following a three day blood pressure check, he advised the Veteran to see his family physician for a more thorough examination and follow-up. The term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater. The term isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2017). As an initial matter, the Board finds that the competent evidence of record confirms that the Veteran has hypertension and coronary artery disease. Private treatment notes reflect diagnoses of hypertension and coronary artery disease. With current disabilities conceded, the issue before the Board becomes whether the Veteran's hypertension and coronary artery disease are a result of his military service or a service-connected disability. Concerning presumptive service connection due to Agent Orange exposure, as noted, hypertension is not among the disorders entitled to presumptive service connection. While ischemic heart disease is included among the list of presumptive disabilities, that term explicitly excludes hypertension. 39 C.F.R. § 3.309(e), Note 3 (2017). Therefore, presumptive service connection for hypertension based on herbicide exposure is not warranted. Concerning the Veteran's claim for service connection for ischemic heart disease as due to exposure to Agent Orange, upon consideration of the record, the Board finds that the preponderance of the competent and probative evidence is against a finding that the Veteran was exposed to Agent Orange during his military service. The Veteran's DD-214 shows that the Veteran served as a gunner's mate with service aboard the USS Rainier during the Vietnam War. He was awarded Vietnam Service Medal and the National Defense Medal. His service personnel records also show that he served aboard the USS Vulcan and the USS Annapolis. In January 1966 the USS Annapolis (AGMR-1) served in a Vietnam combat zone. The Veteran contends that he was exposed to Agent Orange while serving aboard the USS Annapolis. There is no contention that the Veteran set foot in Vietnam or inland waterways. Rather, the Veteran is arguing that as a "blue water" Veteran, he had exposure to Agent Orange. He points out that he was awarded the Vietnam Service Medal. In order to establish service in the Republic of Vietnam for the purpose of the presumption of herbicide exposure under § 3.307(a)(6), a service member generally must have set foot on the landmass of Vietnam, or served on a smaller "brown water" vessel navigating its inland waterways. Haas, 525 F.3d at 1197. Service in offshore waters, in high-altitude airspace above Vietnam, and service in other locations does not constitute service in Vietnam, unless the conditions of such service involved duty or visitation on the landmass or inland waterways of Vietnam. See id.; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2017). With regard to inland waterways, qualifying service in the Republic of Vietnam does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307(a)(6)(iii). See Haas, 525 F.3d at 1187-1190. In Gray v. McDonald, 27 Vet. App. 313, 326 (2015), however, the Court held that, with respect to Da Nang Harbor, the manner in which VA defined inland waterways was both inconsistent with the regulatory purpose and irrational. The Court found no meaningful difference in characteristics between Da Nang Harbor (designated as "blue water") and Quy Nhon and Ganh Rai Bay's (designated as "brown water"). The Court remanded the case for VA to re-evaluate its definition of inland waterways, particularly as it applies to Da Nang Harbor. Pursuant to the Gray decision, VA updated its procedural manual with respect to the distinction between inland waterways ('brown water') and offshore waters ('blue water'). As pertinent to this case, Da Nang Harbor is specifically identified as a geographic location determined to be "offshore waters." M21-1, IV.ii.1.H.2. The rationale for excluding this harbor as inland waterways was that it was open to the sea with extensive entry distance for easy access; were not long or narrow; and had deep water channels contiguous with the South China Sea, for easy ship anchorages. In addition, Da Nang Harbor was not connected to a major inland river. Additionally, there was no historical evidence of extensive Agent Orange aerial spraying in the Da Nang area, so the potential for Agent Orange exposure was minimal. Although operations on the inland waterways of Vietnam were primarily conducted by Brown Water Navy and Coast Guard vessels, some larger Blue Water Navy vessels periodically entered the inland waterways to provide gunfire support or deliver troops or destroyers that entered a river such as the Saigon River in the southern delta area. In order for the presumption of exposure to herbicides to be extended to a Blue Water Navy veteran, development must provide evidence that the veteran's ship operated temporarily on the inland waterways of Vietnam or that the veteran's ship docked to the shore or a pier. In claims based on docking, a lay statement that the veteran personally went ashore must be provided. Although evidence that a veteran's ship docked, along with a statement of going ashore, is sufficient for the presumption of herbicide exposure, service aboard a ship that anchored temporarily in an open deep-water harbor or port has generally not been considered sufficient. The USS Annapolis is not recognized as a vessel that conducted "brown water" operations in Vietnam, and given the nature of its mission, its size and draft, and the absence of any indication in the ship's deck logs that it conducted brown water operations, there is no reason to believe that the USS Annapolis would have operated in the rivers, canals, estuaries, or delta areas making up the inland waterways of Vietnam. Accordingly, since the Veteran has never claimed and the record does not show that he actually stepped foot in the Republic of Vietnam, and his alleged exposure while serving on the USS Annapolis during his deep-water naval service, the Board finds that his claim for service connection are not within the purview of 38 U.S.C. § 1116 and 38 C.F.R. §§ 3.307, 3.309(e) based on herbicide exposure in Vietnam. In December 2012, the RO issued a formal finding of insufficient information to forward to the Joint Services Records Research Center (JSSRC). Nonetheless, the RO initiated a research request to the JSSRC to determine whether the Veteran was exposed to herbicide agents while serving aboard the USS Annapolis. In May 2012, the RO received a JSSRC response that they reviewed the evidence and were unable to determine whether or not the Veteran served in the republic of Vietnam while aboard the USS Annapolis (AGMR 1). While the vessel was shown to have been in the official waters of the Republic of Vietnam in October 1965, November 1965, November 1965, and January 1966, the record did not provide conclusive proof of in-country service. Moreover, the Veteran has not alleged that the USS Annapolis was docked or that he ever went ashore in Vietnam. Although the Board acknowledges that the USS Annapolis was in the official waters of the Republic of Vietnam, this does not qualify under the inland waterways presumption for herbicide exposure. As the Veteran served exclusively on a blue water ship and there is no indication that he ever visited the mainland of the Republic of Vietnam, the Board finds that the preponderance of the evidence is against the finding that the Veteran served in the Republic of Vietnam for purposes of the herbicide presumption. Therefore, the Board finds that the Veteran cannot be presumed to have been exposed to herbicides, to include Agent Orange, during his active duty service. 38 U.S.C. § 1116(f). Thus, service connection on the basis of the presumptions afforded herbicide exposed Veterans is not warranted. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing, even when presumptive service connection is not appropriate, a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With regard to direct service connection other than as the result of herbicide exposure, the Veteran's service treatment records for his period of active duty service from March 1963 to February 1967 do not contain any complaints, treatment, findings or diagnosis consistent with hypertension or heart disease, and on release from active duty service in February 1967 his blood pressure reading was within normal limits at 114/76, and his heart was clinically evaluated as normal. After release from active duty in February 1967, service treatment records show that in December 1978 a blood pressure check was conducted to rule out hypertension. His various blood pressure readings were consistently within normal limits. In a Report of Medical History in April 1981 the Veteran denied a history of hypertension. An April 1982 blood pressure check was conducted to rule out hypertension for three consecutive days on sitting, standing and recumbent positions throughout the day. His blood pressure readings were consistently 120/80. Thereafter in a Report of Medical History in September 1984 the Veteran endorsed a history of hypertension. The examiner noted high blood pressure, controlled with medication for two years. Chest x-ray in 1979, 1986 and 1989, were within normal limits. In January 1989 a clinician noted sinus bradycardia. An April 2013 Ischemic Heart Disease (IHD) Disability Benefits Questionnaire noted a history of myocardial infarction and percutaneous coronary interventions in 2005 and 2009. As noted, hypertension and cardiovascular disease are also subject to presumptive service connection as a chronic disease. 38 U.S.C. § 1112(a); 38 C.F.R. §§ 3.307, 3.309(a). The record is clear, however, that the Veteran's heart disease and hypertension were initially identified many years after his period of active duty service from March 1963 to February 1967. As there is no showing of heart disease and hypertension in service or to a compensable degree in the year after service, presumptive service connection for heart disease and hypertension as chronic diseases is not warranted. The Board acknowledges that the medical evidence shows that the Veteran was initially diagnosed with hypertension while enlisted in the Coast Guard. Hypertension is a disease, not an injury, and therefore it must be shown that such a condition either began during or was otherwise caused by a period of active duty or ACDUTRA. See 38 U.S.C.A. § 101 (24). As noted, while evidence in 1984 noted onset of hypertension approximately two years earlier, in 1981 the Veteran denied a history of hypertension and April 1982 blood pressure checks were normal. Thus it would appear that the condition was diagnosed sometime between April 1982 and September 1984. A copy of the retirement points history statement does show two periods of ACDUTRA during this time, totaling 25 days in 1982 and 12 days in 1983. The record does not reflect that hypertension was diagnosed during a period of ACDUTRA. To the extent the Veteran claims entitlement to service connection for heart disease as secondary to hypertension, as service connection for has not been established hypertension, there is no legal basis upon which to award service connection for heart disease on a secondary basis. 38 C.F.R. § 3.310. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, heart disease and hypertension fall outside the realm of common knowledge of a lay person. In this regard, any actual diagnosis of heart disease or hypertension requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). To the extent that the Veteran believes that he has heart disease or hypertension that is due to service, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his current heart disease or hypertension is not competent evidence, as the nexus question involved in this case requires medical expertise to determine. Id. Moreover, there is no indication that heart disease or hypertension began during a given period of active duty service or ACDUTRA, or is related to any aspect of the Veteran's service. In light of the foregoing, for all the reasons noted above, the Board finds that the evidence establishes that the Veteran was not exposed to herbicides during active duty service. The record does not reflect that hypertension or heart disease was shown during a period of active duty or within one year of separation thereof, or during a period of ACDUTRA. Finally, the record is negative for any competent medical evidence in support of the claims, to include any medical opinions relating the Veteran's hypertension or heart disease to any incident of service. Thus, the Board must conclude that the preponderance of the evidence is against the claims and service connection for hypertension or heart disease is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for hypertension is denied. Service connection for ischemic heart disease, also claimed as coronary artery disease, is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs