Citation Nr: 18148140 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-06 366 DATE: November 6, 2018 ORDER Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, is denied. FINDING OF FACT The Veteran was not presumptively exposed to Agent Orange during his service at the Royal Thai Air Force Base, Ubon during the Vietnam Era, nor is his ischemic heart disease otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(a); 3.307(a)(1)(6)(iii); 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty honorably in the United States Air Force from November 1965 until December 1969. During this time, the Veteran served approximately a year at the Royal Thai Air Force Base in Ubon, Thailand, where he worked on vehicle operation and maintenance. This case comes to the Board on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) Service connection may be presumptively established under the provisions of 38 C.F.R. § 3.303(b) when the evidence shows that a veteran has certain chronic diseases, to include ischemic heart disease, which manifest to a compensable degree within a certain time period after service. Ischemic heart disease must have manifest to a degree of 10 percent or more within one year of separation from service. 38 C.F.R § 3.307(a)(3). Additionally, service connection may be established on a presumptive basis for a disability resulting from exposure to an herbicide agent. Applicable regulations provide that a veteran who served on active duty in Vietnam during the Vietnam era is presumed to have been exposed to Agent Orange or similar herbicide. 38 C.F.R. § 3.307(a)(1)(6)(iii). “Service in the Republic of Vietnam” includes service in the waters off shore 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). A veteran must actually have set foot within the land borders of Vietnam, to include the contiguous waterways, 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). Additionally, Veterans who were stationed on or near the perimeter of bases in Thailand shall also be subject to the presumption on a facts-found basis. Regulations stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. Those diseases include AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin’s disease; chronic lymphocytic leukemia (CLL); multiple myeloma; non-Hodgkin’s lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson’s disease, and ischemic heart disease. 38 C.F.R. §3.309(e). The record before the Board reflects a diagnosis of ischemic heart disease, as well as a history of chronic congestive heart failure. Thus, the first element of service connection is met. The Veteran’s service records do not reflect any in-service event related to his ischemic heart disease, nor does the Veteran argue any such in-service connection aside from Agent Orange exposure. 38 C.F.R. § 3.303(a). Additionally, treatment records do not reflect any symptoms or complaints related to ischemic heart disease during service or within the one-year presumptive period following service. Therefore, the chronic disease presumption is not applicable. 38 C.F.R § 3.307(a)(3). The Veteran argues that he was exposed to Agent Orange while in Thailand, and that this is the cause of his ischemic heart disease. The Veteran states he frequently went into the jungles in Thailand to recover downed aircraft and vehicles. This account is corroborated through statements in his service records from his supervisors. An internal VA memorandum dated May 2014 made formal findings as to the use of herbicides in Thailand during the Vietnam era. That memorandum specifically notes that there are no reports of tactical herbicide use in the jungles of Thailand, and thus exposure to herbicide agents while serving in Thailand—such as the exposure claimed by the Veteran here by way of vehicle recovery in the Thai jungle—is not presumed. The May 2014 memorandum notes, however, that commercial herbicides were frequently used for vegetation control along the perimeters of bases in Thailand during the Vietnam era. Thus, VA policy is that Veterans who served in positions that would require frequent presence at a base perimeter may be considered to have been exposed to herbicides. Here, the Veteran’s MOS was a Vehicle Operator, which does not carry a likelihood of frequent presence at the base perimeter. The Veteran states, however, that he was also an augmentee with the military police, and would respond to alerts and raids alongside the military police. While military police patrol of the base perimeter would be a qualifying MOS, there is nothing in the record to support this contention. The Veteran’s service personnel records do not reflect a physical presence in Vietnam, nor do they show that his MOS brought him into regular contact with the base perimeter in Thailand. There is otherwise no evidence of record to support the Veteran’s contention of having been assigned as an augmentee with the military police while serving in Thailand, or that such duties would have involved regular patrol of the base perimeter. Therefore, the herbicide exposure presumption is not for application here. If a veteran is not entitled to presumptive service connection for a disability as due to herbicide exposure, service connection on a direct basis must also be considered. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, however, aside from his claimed herbicide agent exposure, the Veteran offers no other in-service event or injury linking his ischemic heart disease to his service to support a finding of direct service connection. The service records similarly do not offer any record of an in-service event or injury. Therefore, the second element of direct service connection is not met. In conclusion, although the Veteran has established a current disability, the preponderance of the evidence establishes that there was no in-service event or injury, that his ischemic heart disease was not manifested during service or for years thereafter and is not otherwise related to his active service, and that he was not presumptively exposed to herbicide agents during active service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). For these reasons, the claim is denied. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Stuedemann, Associate Counsel