Citation Nr: 18141490 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 15-07 954 DATE: October 11, 2018 ORDER Entitlement to service connection for coronary artery disease due to herbicide exposure is denied. FINDING OF FACT Coronary artery disease manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease, or to be related to exposure to an herbicide agent. CONCLUSION OF LAW The criteria to establish service connection for coronary artery disease due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1116, 1154, 5103, 5103A, 5108; 38 C.F.R. §§ 3.102, 3.156(c), 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from July 1971 through July 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) RO. In November 2012, the Veteran originally filed a claim for entitlement to service connection for coronary artery disease due to herbicide exposure. The RO initially denied the claim in a January 2013 rating decision. The Veteran responded in February 2013 with additional information regarding his place of duty and photographs, which he asserted were of the perimeter of the camp and were taken from his barracks. In April 2013, the RO again denied the claim. The Veteran did not perfect an appeal of this decision and it became final as to the evidence then of record, and is not subject to revision on the same bases. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. However, in May 2014, the Veteran sought to reopen the claim and service department records were received which indicated service with the Air Force at Udorn Royal Thai Air Force base (RTAFB) between April 1973 and April 1974. These records provided a review of his duties while stationed in Thailand. The additional service documentation was not previously of record. Although this matter has been certified for appellate review of a petition to reopen the previously-denied claim, the law mandates that VA treat this as upon initial review. The provisions of 38 C.F.R. § 3.156(c) direct, in pertinent part, that: (c) Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. VA’s receipt of additional relevant service personnel records following the September 2008 rating decision mandates that the appellant’s claim be reconsidered. 38 C.F.R. § 3.156(c). 1. Entitlement to service connection for coronary artery disease due to herbicide exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “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)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Coronary artery disease is a cardiovascular-renal disease which constitutes a “chronic” disease listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as coronary artery disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A veteran who, during active military, naval, or air 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 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 that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. “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). VA’s Compensation and Pension Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Air Force veterans whose duties placed them on or near the perimeters of certain RTAFBs anytime between February 28, 1961, and May 7, 1975. The listed Thai military facilities include U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang RTAFBs. If a veteran’s military duties, as shown by evidence of daily work duties, performance evaluation reports, or other probative evidence, placed him or her near the air base perimeter, then VA is to concede herbicide exposure on a direct or facts-found basis. If a veteran was exposed to an herbicide agent during active service, certain diseases, including coronary artery disease, shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). In deciding an 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is diagnosed with coronary artery disease. As to direct service connection, the evidence does not show, and the Veteran does not contend, that his coronary artery disease had its onset or manifested in service. Service treatment records are silent for any complaints or diagnoses of coronary artery disease. The report of medical examination at separation noted the Veteran’s heart and vascular system were normal. Post-service medical records and statements from the Veteran exclusively endorse an onset date for coronary artery disease in 2002 at the earliest, approximately 27 years after the Veteran’s discharge from active duty. Coronary artery disease is a cardiovascular-renal disease which constitutes a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker, 708 F.3d 1331. However, as noted above, the medical evidence does not show, and the Veteran has not argued, that his coronary artery disease manifested to a sufficient degree in-service to identify the disease entity or within the first post-service year. Service treatment records are silent for any complaints or diagnoses of coronary artery disease. The report of medical examination at separation noted the Veteran’s heart and vascular system were normal. Post-service medical records and statements from the Veteran exclusively endorse an onset date for coronary artery disease in 2002 at the earliest. There were no sufficient manifestations to identify the disease entity in service or within the first post-service year. Therefore, service connection for coronary artery disease is not warranted based on the presumption in favor of chronic diseases or continuity of symptomatology. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. Instead, the Veteran has argued that his coronary artery disease was caused by herbicide exposure during service. The Veteran’s personnel records indicate that he served in RTAFB Udorn from April 1973 through April 1974 and his MOS was as an airframe repair specialist. However, the Veteran is not presumed to have been exposed to herbicides and exposure must be established on a facts-found basis. The Veteran has asserted that he was exposed to herbicide agents as he conducted maintenance actions on aircraft located on the flight line approximately 30 feet away from the perimeter of the base. He has stated that many times he would work for several hours in that area. The Veteran has asserted that he resided in a bungalow just outside of the base perimeter, approximately 100 feet away. He has stated that he passed through the base perimeter approximately twice daily as he rode a shuttle to and from work. The Veteran has further asserted that the windows would be open due to the hot and humid climate as they were passing through. He has asserted that the Thai military also sprayed herbicides on the perimeter, which he believes had a more potent strength of herbicide, although no probative evidence has been submitted in support of this assertion. The Veteran submitted an article comparing the government’s use of tactical and commercial herbicides. The Veteran has submitted an article describing a 500-meter buffer zone needing to be maintained to avoid damage caused by drifts while ground spraying herbicides and Veterans living only a few meters away from the perimeter of the base and herbicides being sprayed in other areas within the base and around the barracks areas. Finally, the Board has considered photographs submitted by the Veteran, including photographs of the barracks the Veteran asserted he resided in and photographs of the base perimeter that the Veteran asserts was taken from his barracks, approximately 100 feet away. However, a memorandum for the record regarding herbicide use in Thailand indicates that agent orange was used on a limited basis from April 1964 to September 1964. The memorandum also states that agent orange was only used at the Pranburi Military Reservation. The memorandum concludes that the type of small brush clearing usage claimed by the Veteran was not consistent with the use of agent orange in Thailand and states that commercial herbicides would have been used. Even though the Veteran was stationed at RTAFB Udorn, the Veteran’s MOS is not recognized for likely exposure to herbicides. He was not a security patrol personnel, nor otherwise assigned to serve at or near the air base perimeter. This presumption contemplates individuals who were actively serving on or near the perimeter. It does not contemplate individuals’ commute on and off the base nor individuals that lived right outside of the base. Furthermore, there is no objective evidence in the Veteran’s personnel files indicating that he was otherwise exposed to herbicides. The Veteran’s duties included shop, line, and periodic work for the structural repair shop. The evidence of record does not provide evidence that the Veteran’s duties required him to work near the air base perimeter. The Veteran was at most 30 feet away from the perimeter. The Veteran also claims that he worked on aircraft that had herbicide residuals when landing on the base for structure repair. However, there is no objective evidence that any contact with such aircraft would have been regular or repeated enough to result in exposure. See 80 Fed. Reg. 35246 (June 19, 2015). Further, the Veteran is not competent to state which chemicals, if any, were on any of the aircraft nor is he competent to state that any chemicals present were an herbicide agent for VA purposes, as both determinations would require technical expertise and testing. 38 C.F.R. § 3.307(a)(6)(i); see Jandreau, 492 F.3d 1372. Although the Veteran is competent to report events he observed during his service, there is no competent and credible evidence of record that establishes that the Veteran was exposed to herbicides during his period of active service. The Veteran’s lay statements are not competent to establish exposure and the in-service and post-service medical and personnel records do not otherwise establish it. As such, the preponderance of the evidence is against a finding that the Veteran was exposed to herbicides in service. Therefore, an in-service event, injury or disease has not been shown and service connection on a direct basis is not warranted. 38 C.F.R. § 3.303. Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service event, injury or disease, or that the Veteran’s coronary artery disease is causally related to his service, manifested within an applicable presumptive period or is related to herbicide exposure. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. McLendon, Associate Counsel