Citation Nr: 18140066 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 11-24 217 DATE: October 2, 2018 ORDER Entitlement to service connection for ischemic heart disease, to include as a result of tactical herbicide exposure, is denied. FINDINGS OF FACT 1. The persuasive evidence of record demonstrates that the Veteran did not have service in, or visitation to, the Republic of Vietnam, including its inland waters, and that he was not actually exposed to a tactical herbicide agent, including Agent Orange, during active service. 2. The evidence demonstrates that the Veteran’s ischemic heart disease was not manifest during or within one year of a period of active service; the evidence also fails to establish that it is etiologically related to an event in service, including as a result of tactical herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for ischemic heart disease, to include as a result of tactical herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from February 1962 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in December 2015, which granted a joint motion for remand (JMR) vacating a May 2014 Board decision and remanding the case for additional development. The issue initially arose from a November 2010 rating decision by the Muscogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The case was remanded for additional development in May 2016. 1. Entitlement to service connection for ischemic heart disease, to include as a result of tactical herbicide exposure. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). Generally, the evidence 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, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including cardiovascular 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) (2018). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Cardiovascular disease is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection for via the demonstration of continuity of symptomatology is applicable. Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed 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. Certain disorders may be presumed service connected, including ischemic heart disease, if manifest to a degree of 10 percent or more for an herbicide exposed Veteran. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309. 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. § 3.307(a)(6)(iii) (2018). Service in the Republic of Vietnam includes service on the landmass or on the inland waterways, but for service based upon visitation on the landmass a Veteran must actually set foot on land within the borders of Vietnam in order to be entitled to the statutory presumptions for disabilities claimed as a result of exposure to herbicides. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In Gray v. McDonald, 27 Vet. App. 313 (2015), VA was instructed to reevaluate its definition of inland waterways, particularly as applied to Da Nang Harbor. VA subsequently addressed the matter in its Adjudication Procedures Manual (M21-1), but such consideration has been found to be inadequate. See Overton v. Wilkie, No. 17-0125, 2018 U.S. App. Vet. Claims LEXIS 1251 (Sept. 19, 2018). 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 disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2018). Consideration must be given to a Veteran’s personal assertion that he has a disability related to active service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). While the Veteran is competent to report observable symptoms, there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. VA has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). 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). The Veteran contends that he developed ischemic heart disease as a result of active service. He asserts that his heart problem developed as a result of diabetes mellitus and/or his exposure to a tactical herbicide agent, e.g., Agent Orange, during service aboard the ammunition carrier USS Vesuvius (AE-15). VA records show service connection is not established for diabetes mellitus. In an October 2010 statement, the Veteran reported that he had not actually set foot on land within the borders of Vietnam. He later clarified in March 2012 i that he was exposed to Agent Orange when his ship was anchored in Da Nang Harbor in 39 feet of water, as part of his duties operating a seawater desalinating evaporator in the waters near Vietnam, and due to leakage from 55-gallon drums transported aboard his ship. He provided documents from the Blue Water Navy Vietnam Veterans Association noting that a document, “The Da Nang Harbor Report,” should be used as direct evidence of herbicide agent exposure for service aboard any ship in Danang Harbor that used its evaporative water system. A lay statement from his spouse noted a history of blood pressure and heart problems in approximately 1991. Service treatment records are negative for complaint, treatment, or diagnosis of a cardiovascular disorder. The Veteran’s May 1966 separation examination revealed a normal clinical evaluation of the heart. Service records show the Veteran served aboard the USS Vesuvius from September 1962 to February 1964. Private treatment records show the Veteran underwent coronary artery bypass grafting in July 1997. Records include diagnoses of coronary artery disease and arteriosclerotic heart disease. A copy of a May 2009 memorandum from the U.S. Army & Joint Services Records Research Center (JSRRC) is of record. The JSRRC noted that a review of records revealed no evidence that Navy or Coast Guard ships transported tactical herbicide agents from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. Documents the Veteran provided in support of his claim in January 2012 include a copy of a deck log entry from “F.Y. 1962” indicating an anchorage in 39 feet of water at Danang Bay, South Vietnam, and comments from J.B. noting that the deck log was from the USS Mauna Kea (AE-22). J.B. also commented that he wished he had the logs for the USS Vesuvius and that he remembered being on inland waters but could not remember when or where. The documents also included a copy of a boiler room log from November 4-5, 1963, noting the ship was enroute from Subic Bay for operations off Vietnam with comments to the Veteran from a shipmate, L.H., indicating it had been taken from the USS Vesuvius. L.H. recalled that the ship had operated off Vietnam for the period from November 3, 1963, to November 7, 1963. In a March 2012 statement V.B. recalled having served with the Veteran and that they had operated in waters he believed to be off the coast of Vietnam. A March 2012 statement from G.G.D. recalled that they had been in sight of Vietnam near Cape St. Jaques. In an undated statement I.S. recalled that they had unloaded 55-gallon drums of Agent Orange from the ship and that one of the drums had been punctured in an accident. A January 2017 service department report noted history reports showed the USS Vesuvius departed its homeport in California in June 1963 for deployment in the Western Pacific with port visits in Hawaii, Japan, Hong Kong, and the Republic of the Philippines. It was noted that the histories and deck logs did not demonstrate that Agent Orange or other tactical herbicides were sprayed, tested, or stored at Subic Bay. A subsequent report noted that neither the histories nor deck logs documented that the USS Vesuvius operated in the contiguous waters of the Republic of Vietnam. Deck logs for the USS Vesuvius received in June 2017 from the National Archives and Records Administration (NARA) include records dated from April 5, 1963, to April 10, 1963, and show that on April 9, 1963, the ship was steaming enroute from San Francisco, California, to Long Beach, California. Records for the period from November 4, 1963, to November 7, 1963, show the ship conducted operations in the South China Sea steaming from Subic Bay, the Republic of the Philippines. A November 7, 1963, report noted sighting the Cap Varella light from a range of 27.3 miles. NARA correspondence dated in November 2017 provided the website and identification numbers for the USS Vesuvius deck logs available online for the months from September 1962 to February 1964. No reports indicating the ship anchored during its operations in the South China Sea were included. An August 2018 VA report noted the deck logs for the USS Vesuvius for the periods from April 5, 1963, to April 10, 1963, and from November 4, 1963, to November 7, 1963, had been reviewed and revealed no evidence of landfall in Vietnam. Agent Orange exposure was not confirmed. VA records dated in August 2018 noted that the online deck log documents for the USS Vesuvius identified by the National Archives and Records Administration (NARA) had been reviewed and revealed no landfall, whaleboats, or berthing in Vietnam in 1963. It was found that Agent Orange exposure was not confirmed. Based on the foregoing, the persuasive evidence of record demonstrates that the Veteran did not have service in, or visitation to, the Republic of Vietnam, including its inland waters, and that he was not actually exposed to a tactical herbicide agent, such as Agent Orange, during active service. In fact, the Veteran does not contend that he had actual service on land in the Republic of Vietnam nor that he had actual tactical herbicide exposure other than as a result of his service aboard the USS Vesuvius. The Veteran and I.S. have asserted that 55-gallon drums herbicides believed to be Agent Orange had been transported aboard the USS Vesuvius. However, the JSRRC has reported that a review of records revealed no evidence that Navy ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. The JSRRC report is persuasive as to this matter as it is shown to have been based upon a review of service department records. The statements from the Veteran and I.S. are found to warrant a lesser degree of probative weight due to erroneous information, bias, and/or self-interest in the outcome of the case. The Veteran and I.S. may have been told that 55-gallon drums on their ship held Agent Orange. However, there is no indication that the information came from a credible or informed source. Consideration has also been given to the Veteran’s claims that he had secondary exposure to Agent Orange from his ship’s desalinating evaporator and that his ship operated on inland waters. The evidence preponderates against this aspect of the claim as well. The evidence of records demonstrates the Veteran’s ship neither anchored in Danang Harbor nor that it operated in the inland waters of Vietnam. As noted above, in Gray the Court of Appeals for Veterans Claims instructed VA to reevaluate its definition of inland waterways, particularly as applied to Da Nang Harbor, and that VA’s efforts to address the matter in a procedure manual was subsequently found to have been inadequate. As such, VA’s definition of inland waterways has been addressed as a matter of policy, but is not established as a matter of regulatory law. However, in light of the overall evidence of this case, the Board finds no credible evidence that the Veteran served aboard a ship that operated on an inland waterway in the Republic of Vietnam by any possible reasonable definition of the term. There is credible evidence that the USS Vesuvius participated in operations in the South China Sea, including as evidenced by the November 4-5, 1963, boiler room log and a November 7, 1963, deck log report of a sighting of the Cap Varella light from a range of 27.3 miles. Nevertheless, as also shown, the service department records do not support the claims that the ship anchored in any harbor or operated on inland waterways near Vietnam. The deck logs for the USS Vesuvius are shown to have revealed no evidence of landings or berthing in Vietnam nor evidence of actual Agent Orange exposure. The Veteran’s claim as to having anchored in Danang Harbor, of being in “brown water,” and the report of G.G.D. asserting that they had been in sight of Vietnam near Cape St. Jaques are not credible. Both claims are inconsistent with the deck logs for the USS Vesuvius. Those reports demonstrate no anchorage during operations in the South China Sea after it left Subic Bay in November 1963 nor report of any land or light sightings other than the Cap Varella light from a range of 27.3 miles. The deck logs are shown to have reported this sighting as an important event and there is no reasonable possibility that other such significant sightings or operations closer to shore would not have been similarly reported. The Board also notes that the copy of a deck log entry from “F.Y. 1962” indicating an anchorage in 39 feet of water at Danang Bay, South Vietnam, is shown by the accompanying comments from J.B. to have been from the USS Mauna Kea (AE-22) and not from the USS Vesuvius. Consideration also been given to “The Da Nang Harbor Report” and information related to a dioxin contaminated water claim. However, as the Veteran is not shown to have served aboard the USS Mauna Kea nor to have served aboard any ship anchoring or operating in Danang Harbor, these documents are found to be of no probative value in the present case. Aside from denying the Veteran’s claim based on the absence of competent and credible evidence of exposure to herbicide agent, which negates application of the presumption of service connection under 3.309(e), the evidence demonstrates that the Veteran’s ischemic heart disease was not manifest during or within one year of a period of active service and that the evidence fails to establish that it is etiologically related to an event in service. The Veteran does not claim to have experienced any event other than tactical herbicide exposure as associated with his development of a cardiovascular disease nor that the disorder was manifest within one year of his separation from service in 1966. He does not claim, and there is no evidence otherwise associating, his heart disease with his established service-connected disabilities of bilateral hearing loss, tinnitus, and depressive disorder associated with bilateral hearing loss. The available medical evidence clearly demonstrates that the Veteran has ischemic heart disease and that he received treatment beginning in the 1990s; however, the overall evidence of record demonstrates that the disorder was not manifest in service nor within one year of his separation from service. In the absence of credible evidence demonstrating service on land or on the inland waterways of the Republic of Vietnam or of actual exposure to a tactical herbicide agent during active service, the Veteran’s claim must be denied. The preponderance of the evidence in this case is against the claim. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel