Citation Nr: 1805951	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  14-18 443	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a heart disability, to include ischemic heart disease, diagnosed as coronary artery disease, to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran, M. J., and A. J.


ATTORNEY FOR THE BOARD

J. Baker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1966 to December 1969 and from December 1990 to June 1991.  The Veteran also served with the Tennessee National Guard.

This matter comes to the Board of Veterans Appeals (Board) on appeal of a September 2012 rating decision by the Regional Office (RO) in Nashville, Tennessee.  

In August 2015, the Veteran testified before the undersigned Veterans Law Judge during a video conference hearing.  A transcript of the hearing is associated with the claims folder.  

The issue on appeal was originally characterized as whether new and material evidence has been received to reopen a claim of entitlement to service connection for atherosclerotic coronary artery disease.  In this respect, a November 2007 rating decision denied the claim for entitlement to service connection for atherosclerotic coronary artery disease.  The evidence before the Agency of Original Jurisdiction (AOJ) at the time of the November 2007 rating decision included service medical treatment records, the Veteran's statements, and private medical treatment records.  The Veteran did not appeal the decision.  Years later, in 2011, the Veteran's service personnel records were requested and the records indicated that the USS YORKTOWN was in the official waters of Vietnam.  These records are relevant to the issue on appeal.  As a result, the claim of entitlement to service connection for heart disability will be considered de novo without the requirement of the receipt of new and material evidence.  See 38 C.F.R. § 3.156 (c) (2015).  This matter was previously before the Board in November 2015, when it was remanded for further development.  The matter now returns to the Board for appellate consideration.  



FINDING OF FACT

The most probative evidence of record does not show that it is at least as likely as not that the Veteran's current coronary artery disease was incurred in or caused by service, to include as due to herbicide exposure. 


CONCLUSION OF LAW

The criteria for service connection for a heart disability, to include as due to herbicide exposure, are not met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).  

Legal Criteria

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016).  To establish service connection for a disability, the 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Regulations provide that 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) (2017). 

VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, 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) shall be service connected if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service.  38 C.F.R. § 3.309 (e) (2017).  For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease.  38 C.F.R. § 3.309(e), Note 2.

A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during 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 service.  38 U.S.C.A. § 1116 (f) (West 2002); 38 C.F.R. § 3.307 (a)(6)(iii) (2017).

According to 38 CFR § 3 307(a)(6)(m), eligibility for the presumption ofAgent Orange exposure requires that a Veteran's military service involved "duty or visitation in the Republic of Vietnam between January 9 1962 and May 7 1975. This includes service within the country of Vietnam itself or aboard a ship that operated on the inland waterways of Vietnam.  However this does not include service aboard a large ocean going ship that operated only on the offshore waters of Vietnam, unless evidence shows that a Veteran went ashore inland waterways, to include the rivers, canals, estuaries, delta areas and enclosed bays of Vietnam. They do not include open deep water harbors such as those at Da Nang, Nha Trang, Cam Ranh, or Vung Tau.  These are considered to be part of the offshore waters ofVietnam because of their deep water anchorage capabilities and open access to the South China Sea.

Analysis

The record shows that the Veteran has a current disability of coronary artery disease (CAD).  The Veteran does not contend, nor does the record show that his current coronary artery disease manifested during or shortly after service.  The Veteran specifically stated that his CAD did not manifest until his heart attack in 2007, many years after service.  The Veteran's service treatment records are absent complaints of heart problems, and the Veteran's heart was noted as normal on service examination.  

However, the Veteran contends that he is entitled to presumptive service connection on the basis that he was exposed to herbicide agents due to cutting other servicemen's hair which may have contained Agent Orange while aboard the USS Yorktown and that he was on the flight deck when planes which may have sprayed Agent Orange would depart and arrive.  Documents of record establish that the Veteran served aboard the USS Yorktown (CVS-10) which was in the official waters of the Republic of Vietnam from March 13, 1968 to April 8, 1968, from May 5, 1968 to May 27, 1968, and from June 4, 1968 to June 16, 1968.  Service records confirm the Veteran's contention that he was a barber during the Vietnam War.  In testimony at the August 2015 hearing before the undersigned Veterans Law Judge, the Veteran stated he had not set foot in Vietnam.  

Information provided by CURR establishes that the USS Yorktown conducted special operations periods on Yankee station in the Gulf of Tonkin consisting of Naval gunfire spotting, search and rescue, surface, subsurface surveillance operations, anti-submarine warfare training, and carrier onboard delivery/helicopter logistic operations in support of task force 77 from March 14 to April 7, May 4-25, and June 6 to 16, 1968.  The deck logs for March, April, and May of 1968 were reviewed and concurred with the 1968 command history.  The history and deck logs did not document that the ship docked, transited inland waters, or that personnel stepped foot in the Republic of Vietnam.  The deck logs revealed that aircraft were launched and recovered, but did not list the destinations or passenger names.  The Veteran submitted an article wherein it was noted that the USS Yorktown arrived in Vietnam in January 1966 prior to the Veteran's period of active service.  In addition, the article noted that the USS Yorktown prepared for duty in the Gulf of Tonkin, arriving on "Yankee Station" on March 16, 2968 and operated in the area until the end of June 1968.  Such dates correspond with the aforementioned dates researched by the CURR.

The Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) held that VA's interpretation of the regulations designating certain bodies of water offshore as "blue water," rather than inland, "brown water" waterway, was inconsistent with the purpose of VA regulations pertaining to inland waterways and the presumption of herbicide exposure in the Republic of Vietnam.  Gray v. McDonald, 27 Vet. App. 313 (2015).  The Court held that a fact-based assessment must be made regarding the probability of herbicide exposure even with regard to offshore areas not traditionally considered inland waterways.

With regard to the Veteran's appeal, the VA pursued a fact based assessment to determine the probability of herbicide exposure in the locations of the USS Yorktown from March 13, 1968 to April 8, 1968, from May 5, 1968 to May 27, 1968, and from June 4, 1968 to June 16, 1968.  The VA provided an assessment of the probability of exposure to those ships present in "Blue Water" areas, and concluded that there was no evidence that Veterans aboard ships on offshore waters during Vietnam were exposed to Agent Orange.  The JSRRC provided a formal finding in December 2016.  The JSRRC found that the evidence denies that the Veteran was exposed to Agent Orange.  The JSRRC verified the Veteran's service aboard ships and the ships positions.  The JSRRC found that the USS Yorktown was a large aircraft carrier operating between 50 to 100 miles off the North Coast of Vietnam at "Yankee Station."  There was no evidence that its crew members were exposed to Agent Orange.  

The Board finds that the requisite service in Vietnam or demonstration of exposure otherwise to an herbicide agent, is not shown, and the presumption of exposure to herbicides does not attach.  38 U.S.C.A. § 1116 (a); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.313(a).  Indeed, the findings of the JSRCC are largely consistent with the Veteran's contentions regarding his service, and great probative weight is given to the findings of the JSRRC.  Nonetheless, the provisions for presumptive service connection do not preclude a claimant from establishing service connection with proof of actual in-service exposure to Agent Orange, which led the Veteran to develop the claimed disorder after his military service.  Combee v. Brown, 34 F.3d at 1044 (Fed. Cir. 1994).

The Veteran stated that he believed that he may have been exposed to Agent Orange when cutting the hair of service members.  The Veteran testified that he heard some Veterans tell him that their hair was drying out due to herbicides, and some Veterans who had their hair cut without washing before-hand.  While the Veteran is competent and credible in his contentions of what he heard from other Veterans, such contentions alone are not sufficient to establish that what he heard constituted actual fact.  Indeed, they are not supported by any objective evidence.  The Board affords greater probative weight to the findings of the JSRRC and the deck logs, which do not establish that any service-members aboard the USS Yorktown were exposed to herbicides on a facts found basis.  The Board also finds that the record does not otherwise show proof of exposure to herbicides.  

As previously mentioned, the third element of service connection requires medical evidence of a nexus between the current disorder and an in-service disease or injury.  Although, as discussed above, there is no evidence of an in-service disease or injury, to include exposure to an herbicide, to which to establish a nexus, the Board, nevertheless, additionally notes that there is no positive medical nexus evidence in the claims file.  The Board realizes that, to date, VA has not provided the Veteran an examination or sought a medical opinion in response to his claim.  In consideration of the above, the Board finds that an examination and opinion are not needed to fairly decide the claim because there is no suggestion the Veteran had a heart problem, or other in-service disease or injury, to include exposure to an herbicide, while in the military or due to service, nor is there a contention that it was caused by anything other than herbicide exposure.  There is no medical nexus evidence otherwise suggesting that this disorder is related to his military service, including due to herbicide exposure.  Thus, the Board finds that an examination and opinion are not needed to adjudicate the Veteran's claim.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A (d) and 38 C.F.R. § 3.159(c)(4).  The treatment records do not provide any supporting evidence.  

The Board finds that the preponderance of evidence is against the Veteran's claim, and the benefit-of-the-doubt doctrine is not for application.  See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Veteran's claim of entitlement to service connection for a heart disability, to include ischemic heart disease, diagnosed as coronary artery disease, to include as due to in-service herbicide exposure, is denied.


ORDER

Entitlement to service connection for a heart disability, to include ischemic heart disease, diagnosed as coronary artery disease, to include as due to herbicide exposure, is denied.




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs