Citation Nr: 18142395 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-42 987 DATE: October 15, 2018 ORDER The claim for service connection for ischemic heart disease, on the basis of substitution and to include for accrued benefits purposes, is reopened. Service connection for ischemic heart disease, on the basis of substitution and to include for accrued benefits purposes, is granted. FINDINGS OF FACT 1. In an unappealed and final decision, dated in October 2012, the Regional Office (RO) denied a claim for service connection for ischemic heart disease. 2. The evidence received since the RO’s October 2012 decision, which denied a claim for service connection ischemic heart disease, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim for service connection for ischemic heart disease, on the basis of substitution and to include for accrued benefits purposes. 3. The Veteran’s ischemic heart disease is due to his service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the RO’s October 2012 decision which denied a claim for service connection for ischemic heart disease; the claim for service connection for ischemic heart disease, on the basis of substitution and to include for accrued benefits purposes, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for ischemic heart disease, on the basis of substitution and to include for accrued benefits purposes, have been met. 38 U.S.C. §§ 1110, 1116(f), 5107, 5121A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1968 to April 1970. He died in July 2017. The Appellant is the Veteran’s surviving spouse. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) RO in Louisville, Kentucky. The Veteran and the Appellant testified at a videoconference hearing in support of the claim for service connection for ischemic heart disease in August 2015 before the undersigned. A copy of the transcript has been associated with the claims file. 1. New and Material Evidence to Reopen. The Appellant asserts that new and material evidence has been presented to reopen the claim for service connection for ischemic heart disease, on the basis of substitution and to include for accrued benefits purposes. In essence, it is argued that the Veteran was exposed to Agent Orange during his service aboard the U.S.S. TRIPOLI (LPH 10), such that service connection for ischemic heart disease is warranted under the presumptive provisions for veterans presumed to have been exposed to Agent Orange. See 38 C.F.R. §§ 3.307, 3.309. In October 2012, the RO denied claims for inter alia service connection for ischemic heart disease. There was no appeal, and the RO’s decision became final. See 38 U.S.C. § 7105(c). In December 2013, the Veteran filed to reopen the claim. In February 2014, the RO determined that new and material evidence had not been received to reopen the claim. The Veteran appealed. The Veteran died in July 2017. In May 2018, the Board dismissed the claim due to the Veteran’s death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). The Veteran’s surviving spouse subsequently submitted a timely request to be substituted as the appellant in the Veteran’s place, and in September 2018, the RO granted the request. See 38 U.S.C. § 5121A; 38 C.F.R. § 20.1106; Breedlove v. Shinseki, 24 Vet. App. 7 (2010). As such, the record is not closed on the date of death of the original claimant. Rather, the claim remains open for the submission and development of any pertinent additional evidence. See 38 C.F.R. § 3.1010(f)(3). Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of an appellant’s claim in light of all the evidence, both new and old. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines “new” as not previously submitted and “material” as related to an unestablished fact necessary to substantiate the claim. New and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, in Shade, the United States Court of Appeals for Veterans Claims stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In addition, if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, certain specific diseases shall be service connected if manifest to a degree of 10 percent or more at any time after service. 38 U.S.C. § 1116(a), (b); 38 C.F.R. § 3.307(a)(6)(ii). VA recognizes ischemic heart disease as presumptively due to herbicide exposure, subject to the rebuttable presumption provisions of 38 C.F.R. § 3.307(d). See 38 C.F.R. § 3.309(e). Under 38 C.F.R. § 3.309(e), ischemic heart disease is stated to include, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm), and coronary bypass surgery. A veteran who served on active duty in the Republic of Vietnam from January 9, 1962 to May 7, 1975 is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). “Service in the Republic of Vietnam” includes service in the waters offshore and other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. It is well established that one must have set foot on the landmass of Vietnam or have been present in the inland waterways of that country for the presumption of herbicide exposure to apply. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 102 (Jan. 21, 2009). Service on a deep-water naval vessel in waters off the shore of Vietnam does not constitute service in the Republic of Vietnam. Haas, 525 F.3d at 1193-97. What constitutes “inland waterways” is not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual (“Manual”) for interpretive guidance. However, the Manual provisions are not substantive rules and are not binding on the Board. DAV v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017). At the time of the RO’s October 2012 decision the evidence included the Veteran’s personnel records, which showed that he served in the Navy, aboard the U.S.S. TRIPOLI (LPH 10) between August 1968 and April 1970. His awards included the Vietnam Service Medal with one star, and the Vietnam Campaign Medal with device. As for the post-service medical evidence, VA progress notes and examination reports noted a history of two myocardial infarctions, in 1994 and 2000, with an angioplasty in 1995, followed by placement of stents. His diagnoses include ischemic heart disease. At the time of the RO’s October 2012 decision, the Veteran was shown to have ischemic heart disease. However, the evidence was insufficient to show that he served in the Republic of Vietnam. The evidence received since the RO’s October 2012 decision includes testimony provided at a hearing in August 2015, the transcript of which shows that the Veteran testified that although he never set foot in Vietnam, he reported working on aircraft and helicopters that had been in Vietnam. He also reported that the U.S.S. TRIPOLI (LPH 10) had docked at Da Nang Harbor during his service. The Veteran certificate of death shows that he died in July 2017. The immediate cause of death was acute myocardial infarction, due to or as a consequence of atherosclerotic coronary artery disease. The administrative history subsequent to the RO’s October 2012 decision includes a determination, dated in February 2014, which shows that the RO concluded that service in the Republic of Vietnam could not be verified. See administrative decision (VA Form 21-0961), dated in February 2014. An RO rating decision, dated in November 2017, shows that the Pension Management Center (PMC) granted service connection for the cause of the Veteran’s death, and that the PMC concluded that the Veteran was shown to have served in Vietnam. This November 2017 administrative finding, which was not of record at the time of the Board’s October 2012 decision, is not cumulative, and is “new” within the meaning of 38 C.F.R. § 3.156. The Board further finds that this evidence is material. At the time of the Board’s October 2012 decision, the Veteran was not shown to have served in Vietnam. The PMC’s November 2017 finding remedies this defect, as it shows that the Veteran is conceded to have served in Vietnam. 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection. The Board finds that service connection for ischemic heart disease, on the basis of substitution and to include for accrued benefits purposes, is warranted. The PMC has concluded that the Veteran is shown to have served in the Republic of Vietnam. In this regard, the PMC appears to have misinterpreted the Appellant’s statement, dated in April 2014, as a claim that “the Veteran” claimed to have been “boots on ground.” Nevertheless, under the current state of the law, the Veteran’s assertion that his ship docked at Da Nang is a plausible basis upon which to find that he had service in Vietnam, and the Board will accept the PMC’s determination on this matter. See Overton v. Wilkie, No. 17-0125 (Sept. 18, 2018). As such, expose to Agent Orange is conceded. 38 U.S.C. § 1116(f). The Veteran was shown to have ischemic heart disease prior to his death, and the Veteran’s certificate of death shows that his cause of death was acute myocardial infarction, due to or as a consequence of atherosclerotic coronary artery disease. The PMC has granted service connection for the cause of the Veteran’s death. Accordingly, the criteria for service connection for ischemic heart disease, on the basis of substitution and to include for accrued benefits purposes, are shown to have been met, and the claim is granted. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel