Citation Nr: 18140828 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 12-01 892 DATE: ORDER Entitlement to service connection for organic heart disease, to include coronary artery disease, status post myocardial infarction and coronary bypass surgery, claimed as secondary to exposure to Agent Orange and or diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran did not have in-country service in the Republic of Vietnam or otherwise demonstrate actual exposure to an herbicide agent during active service. 2. The Veteran’s organic heart disease, to include coronary artery disease, status post myocardial infarction, and coronary bypass surgery, did not manifest in service or to a compensable degree within one year of separation from active service, and is not otherwise shown to be related to service. 3. The Veteran is not service-connected for diabetes mellitus. CONCLUSION OF LAW Organic heart disease, to include coronary artery disease and residuals of a myocardial infarction and coronary bypass surgery, was not incurred or aggravated inservice, it may not be presumed to have been so incurred, and it is not secondary to a service connected disorder or inservice exposure to Agent Orange. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1962 to August 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2014 the Board denied this claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2015, the Court remanded the Veteran’s case for action consistent with a Joint Motion for Remand. Thereafter, the Board remanded the claims in November 2015 and March 2017. In July 2012 the Veteran testified at a hearing before one of the undersigned Veterans Law Judges (VLJ). In March 2018, the Veteran testified before a different undersigned VLJ with respect to the same issue. A letter was sent to the Veteran in July 2018 notifying him that he had the option of having a third hearing with a VLJ who would be assigned to a panel to decide his appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran was also informed that if he did not respond within 30 days from the date of the letter, the Board will assume he does not want a third hearing. The Veteran did not respond within 30 days, and the Board will proceed accordingly. Entitlement to service connection for organic heart disease, to include coronary artery disease, status post myocardial infarction and coronary bypass surgery, claimed as secondary to exposure to Agent Orange and or diabetes mellitus The Veteran asserts that organic heart disease is related to herbicide agent exposure in service, or alternatively, is secondary to diabetes mellitus. See January 2012 VA Form 9, and February 2005 VA Form 21-4138. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). Arteriosclerosis may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). However, if evidence of 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. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to certain herbicide agents, to include the commonly referred herbicide agent, Agent Orange, absent affirmative evidence to establish that the Veteran was not exposed. See 38 U.S.C. § 1116 (f); 38 C.F.R. §§ 3.307 (a)(6)(iii). For purposes of applying the presumption of exposure to herbicide agent under 38 C.F.R. § 3.307 (a)(6)(iii), the service member must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam War. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 555 U.S. 1149 (2009). Historically, the Veterans Benefits Administration (VBA) has extended the herbicide presumption to naval ships, which entered Vietnam’s inland waterways or those, which docked to the shore, but did not extend the presumption to naval ships operating in open water (“brown” versus “blue” water ships). In April 2015, the Court, in addressing a claim for presumptive service connection based on herbicide exposure while that Veteran’s ship was anchored in Da Nang Harbor, held that the rationale underlying VA’s designation of Da Nang Harbor as an offshore, rather than an inland, waterway, was inconsistent with the identified purpose of the statute and regulation: providing compensation to Veterans based on the likelihood of exposure to herbicides. Gray v. McDonald, 27 Vet. App. 313, 326 (2015). As a result of the Gray decision, the VBA revised the VA Adjudications Procedures Manual, the M21-1 (Live Manual), as to which bodies of water in Vietnam constitute inland waterways. The revised M21-1 defines coastal harbor waters as offshore, not inland waterways (see VBA Manual IV.ii.1.H.2.b. See VBA Manual M21-1, IV.ii.1.H.2.c. VBA also updated its list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (most recently updated September 4, 2018). At the outset, the Board finds it necessary to discuss the timeframe during which the Veteran served aboard the USS Kyes. In the parties’ JMR, there appears to be an indication that the Veteran served aboard the USS Kyes from July 29, 1965, to August 17, 1965; August 27, 1965 to September 19, 1965; September 23, 1965 to September 26, 1965; as well as from August 11, 1966 to August 16, 1966. Upon further review of the evidence, including service department records, the Board finds while the USS Kyes may have been in the official waters of the Republic of Vietnam from August 11, 1966 to August 16, 1966; the Veteran was not aboard the ship during that time. The Veteran’s service personnel records include a History of Assignments; this form shows a received for duty date of September 24, 1963 aboard the USS Kyes. There is a transferred date of August 3, 1966. There is a received for temporary duty date of August 11, 1966 at Naval Station Treasure Island, San Francisco, California; and an August 17, 1966 released from active duty date. This assignment sheet was annotated with a handwritten note pointing to the August 17, 1966 date which states, “arrived Travis Air Force Base on this date.” In a letter from the Veteran received in April 2007 (in connection with a claim for posttraumatic stress disorder) he reported that on August 11, 1966, he left the USS Kyes in Sasuro, Japan for home and discharge. He stated that he caught a flight from Sasuro “to another airbase somewhere in Japan.” He then reportedly “sat in the airport for about 5 days waiting for a flight to the states.” This is generally consistent with service personnel records which show an August 11, 1966 date of transfer to the Naval Station Treasure Island, San Francisco, California. The date transferred is shown as August 17, 1966. Based on the foregoing, the Board finds that the Veteran did not serve aboard the USS Kyes while it was in the official waters of the Republic of Vietnam from August 11, 1966 to August 16, 1966. The Veteran nonetheless asserts that while he was aboard the USS Kyes, it was so close to shore that he could see people on mainland. In his July 2012 testimony, he also asserted that the USS Kyes traveled inlets of several rivers in Vietnam. The Veteran was unable to recall having ever gone ashore in Vietnam, but he did remember having a picnic on an island, possibly in the Philippines. He also recalled leaving the USS Kyes during shore leave in Hong Kong, the Philippines, and Japan. In April 2005, the service department indicated that the USS Kyes was in official waters of the Republic of Vietnam from July 29, 1965, to August 17, 1965; August 27, 1965 to September 19, 1965; September 23, 1965 to September 26, 1965; and from August 11, 1966 to August 16, 1966. The service department was unable to determine if the Veteran had in-country service in the Republic of Vietnam. The Board has reviewed the list of ships included in the Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents. The list shows that the USS James E. Kyes (DD-787) is listed as a ship operating temporarily on Vietnam’s inland waterways. Specifically, the USS Kyes provided naval gunfire support on Song Ca River during October 1967 and Ganh Rai Bay during June 1969. The Veteran, however, was not aboard the ship at either time because he was discharged from military service on August 17, 1966. In February 2016, pursuant to the Board’s November 2015 Remand, the Defense Personnel Records Information Retrieval system (DPRIS) reviewed the command history and deck logs of the USS Kyes. DPRIS provided a detailed account of the ship’s history and deck logs and indicated that review of the 1965 and 1966 command history and deck logs do not show that the USS Kyes docked or transited inland waterways of Vietnam, or that or that personnel stepped foot in the Republic of Vietnam. As to whether the VA has fulfilled its duty to assist, the Board is satisfied that VA has secured all relevant records of the movements of USS Kyes in the official waters of Vietnam while the Veteran was aboard. The Board finds the command history and deck logs more probative than the Veteran’s lay assertion that the USS Kyes traversed any inland waterways or inlets during the time which he served aboard. There is no credible evidence or assertion that the Veteran ever set foot upon the landmass of Vietnam. Exposure to an herbicide agent outside Vietnam is not claimed or shown. Therefore, the Veteran cannot be presumed to have been exposed to herbicide agents, 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 agent-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). Upon review of the evidence, the Board finds proof of actual direct causation is not established. In his hearing testimony, the Veteran implied that he was directly exposed to herbicide agents from the burning smoke in Quang Ngai which left a sticky residue on his person and others on the ship. The Veteran is competent to report what he observed with his senses, including that he was covered in sticky residue, but he is not competent to identify Agent Orange or other herbicide agents. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As discussed, service records do not confirm any exposure to herbicide agents. There is also no other competent evidence to corroborate actual exposure to herbicide agents while serving aboard the USS Kyes. There is no competent or probative evidence showing actual exposure to Agent Orange or other herbicide agents in service. Excluding the possibility of presumed or actual in-service exposure to herbicide agents, the Board turns to whether the evidence shows that the Veteran’s organic heart disease had onset during service or within one year of separation from active duty, or is otherwise related to the Veteran’s military service. The record does not reflect the organic heart disease had onset in service or within one year of separation from active duty. Service treatment records are silent for diagnoses or treatment of heart disease. There was a notation of chest tightness in October 1965, but this was related to a cold; chest X-rays were negative. The Veteran’s August 1966 separation examination revealed no pertinent abnormalities. Post-service private treatment records show that cardiomegaly was noted in July 1984, many years after service, and heart disease was initially diagnosed in August 1993. The evidentiary record does not contain competent and probative evidence showing organic heart disease had onset during service or within one year of discharge from active duty, or is otherwise related to the Veteran’s military service. Finally, the Veteran asserts that his organic heart disease is secondary to his diabetes mellitus. The Veteran is not service-connected for diabetes mellitus. Indeed, service connection for diabetes mellitus was denied in an unappealed March 2009 rating decision. As such, the Board cannot grant service connection for a heart disorder on a secondary basis. In the absence of any competent and probative evidence establishing that the Veteran’s organic heart disease is etiologically related to service, service connection is not warranted. 38 C.F.R. § 3.303. See 38 U.S.C. § 5107; 38 C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App.49, 55 (1990). DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel