Citation Nr: 18150531 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-49 926 DATE: November 15, 2018 ORDER Entitlement to service connection for coronary artery disease is granted. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during service. 2. The Veteran has a confirmed current diagnosis of coronary artery disease. CONCLUSION OF LAW The criteria for service connection for coronary artery disease have been met. 38 U.S.C. §§ 1110, 1131, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1971 to June 1975. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection 1. Entitlement to service connection for coronary artery disease, to include as due to herbicide agent exposure. Pertinent Service Connection Laws and Regulations The Veteran asserts that he was exposed to herbicide agents during service while stationed at U-Tapao Royal Thai Air Force Base (RTAFB), which led to his current disability of coronary artery disease (CAD). See Veteran’s Statement in Support of Claim dated March 25, 2014. Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995). If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was “noted” during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b) (2017). Here, the Veteran’s service treatment records are negative for symptoms or treatment of CAD, and the post-service treatment records do not reflect diagnosis of CAD until many years after the Veteran’s separation from service. Thus, 38 C.F.R. § 3.303(b) is not for application on this record. A veteran who had active duty service in the Republic of Vietnam beginning on January 9, 1962, and ending on May 7, 1975 (the “Vietnam Era”), 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. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii), (v). If a veteran was exposed to an herbicide agent during active service, certain diseases, including CAD, shall be presumed service connected if the certain requirements are satisfied, subject to rebuttal. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. § 3.307(a), (d), 3.309(e). The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. “Service in Vietnam” does not include service of a veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace. See VAOPGCPREC 7-93. In rendering a decision on appeal, the Board must also 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 evidence 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). To deny a claim on its merits, there must be a preponderance of evidence against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran is currently diagnosed with CAD. His service treatment records (STRs) are negative for symptoms or diagnosis of CAD, which was diagnosed many years after his separation from service, as reflected in his private treatment records. See Private treatment record dated November 13, 2013 at pg. 3. Nonetheless, as CAD is subject to the presumptive service connection provisions of 38 C.F.R. §§ 3.307(a)(6) and 3.309(e), the dispositive issue is whether the Veteran was exposed to herbicide agents during service. The Veteran’s service personnel records do not reflect that he was assigned to Vietnam or that his duties took him to Vietnam during service. However, the service records show that he was stationed in Thailand from at least April 25, 1974 to April 24, 1975, and the Veteran’s STRs show that he was treated for various acute illnesses from June 1974 to May 1975 at the 11th Air Force Hospital at U-Tapao RTAFB. Also, the Veteran’s service personnel records reflect that his Thailand service from 1974 to 1975 included duty as a munitions load crew member with the 307th Munitions Maintenance Squadron at U-Tapao RTAFB. See TSGT, SSGT and SGT Performance Report dated April 25, 1975; see also DD Form 214 (Section 16a, MOS: Weapons Mechanic). The Veteran has indicated that while he was on the U-Tapao RTAFB, he routinely was a driver of, or passenger on, a vehicle that traveled the base perimeter roads, and he was exposed to “misty vapor” from a truck that also killed vegetation inside the base and along the perimeter roads. See Appeal to Board of Veterans’ Appeals (VA Form 9) received October 10, 2016; see also Statements in Support of Claim dated December 3, 2013 and March 27, 2014. The Board acknowledges that there is no official evidence reflecting that the Veteran was in close proximity to the perimeter of U-Tapao RTAFB while he was stationed there. Nevertheless, the Veteran’s statements as to the location of duties performed by him while stationed in Thailand are competent lay evidence of what the Veteran observed during service in Thailand. Layno, 6 Vet. App. at 469-70 (lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Notably, the Board has located no information in the record that calls into question the Veteran’s credibility. The Board also points out that the Veteran was stationed at U-Tapao RTAFB for at least 365 days. It is highly plausible that he went near the air base perimeter. Thus, the Board finds that the weight of the evidence is in equipoise as to whether the Veteran’s activities placed him near the perimeter of U-Tapao RTAFB. The Board is cognizant that VA issued to administrative memorandums during the adjudication of this claim, dated May 2014 and September 2016, both reflecting that VA was unable to corroborate the Veteran’s exposure to herbicide agents during service in Thailand. Critically, both memorandums incorrectly state that the Veteran’s DD Form 214 does not annotate the Veteran’s Thailand service. In fact, the form specifically notes service in “Thailand (372 days).” See DD Form 214 (Section 19). Therefore, the VA memorandums specific to this Veteran are afforded low probative value. In light of the Veteran’s contentions and after resolving all reasonable doubt in his favor, the Board finds that the Veteran’s exposure to herbicides has been established by the facts found. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.307. As the evidence supports a finding that the Veteran was exposed herbicide agents in service, the presumptive service connection provisions of the regulation are applicable. See 38 C.F.R. §§ 3.307, 3.309. Service connection for CAD is therefore warranted through application of the regulations providing presumptive service connection based on exposure to herbicide agents during service. The grant of service connection on a presumptive basis renders moot all other theories of entitlement. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel