Citation Nr: 18150614 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-00 801 DATE: November 15, 2018 ORDER Entitlement to a heart disability, to include as due to herbicide exposure, is denied. REMANDED Entitlement to a compensable rating for service-connected residuals, post-operative tendon repair, 4th finger right hand, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran had any service in or near the Republic of Vietnam or that he was otherwise exposed to herbicides during active service. 2. A heart disability was not manifested during or within one year of his active military service; nor does the evidence otherwise establish that his current heart disability is related to his service. CONCLUSION OF LAW The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1117, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1967 to June 1971. He died in January 2017. His surviving spouse has been substituted as the appellant in this case. This matter is on appeal from an August 2013 rating decision. 1. Entitlement to a heart disability claimed as due to herbicide exposure The governing law provides that 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.” 38 U.S.C. § 1116(f). VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several disorders, to include ischemic heart disease and coronary artery disease. 38 C.F.R. § 3.309(e). Nevertheless, the Veteran may establish entitlement to service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, the Veteran’s VA and private treatment records show he has a current diagnosis of various heart disabilities, including coronary artery disease. See e.g., December 2012 VA treatment record. Therefore, the controlling issue is whether the Veteran was exposed to herbicides during service, including during service in Vietnam as alleged, or that his heart disability is otherwise related to his military service. VA statues and regulations, as well as interpreting caselaw, generally define “service in the Republic of Vietnam” to include duty or visitation on the landmass of Vietnam, including if such service was in the “waters offshore” or on the “inland waterways of Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Peake, 525 F.3d 1168, 1184-85 (Fed. Cir. 2008). Because of pending litigation to further define and clarify the definition of “service in the Republic of Vietnam, the Board has instituted a stay of adjudication of all cases requiring interpretation of the terms “service in the Republic of Vietnam,” “inland waterways,” and “offshore waters” under 38 C.F.R § 3.307(a)(6)(iii). The stay does not preclude the Board from adjudicating any claims that will not be affected by the pending litigation, such as the instant case. The Veteran has asserted that he was exposed to herbicides while stationed onboard the USCGC Ingham which operated in the inland waterways of Vietnam. See December 2014 VA Form 9. In support of his claim, the Veteran has submitted information showing the USCGC Ingham did, in fact, serve in waters off/near Vietnam, as it arrived in theatre on July 16, 1968 and performed various duties including conducting gunfire support missions for ground forces, after which it returned to Norfolk, Virginia on May 2, 1969. See Information regarding USCGC Ingham. Despite the foregoing, the evidence of record does not show that the Veteran served onboard the USCGC Ingham on the dates on which it was in the waterways of Vietnam. The Veteran’s service personnel records reflect that he served onboard the USCGC Ingham from January 1970 to June 1971, while his service treatment records (STRs) show that he received treatment onboard the ship in November 1969 but no earlier. In fact, STRs dated in January 1969 reflect that he received treatment at Naval Hospitals in Norfolk and Portsmouth, Virginia. See STRs dated January and November 1969. Based on the foregoing, the Board finds the preponderance of the evidence is against a finding that the Veteran served onboard the USCGC Ingham prior to November 1969. There is also no evidence or assertion establishing that his military service otherwise included service in the Republic of Vietnam or any other exposure to herbicides. Instead, the Veteran has only asserted that his herbicide exposure occurred while serving aboard the USCGC Ingham, which is not supported by the objective evidence of record. Therefore, the Veteran is not deemed to have been exposed to herbicides during his military service, to include on a direct or presumed basis. Accordingly, presumptive service connection for a heart disability due to exposure to herbicides is not applicable in this case. The Board has considered whether service connection for a heart disability is otherwise warranted in this case. However, the evidence does not show, nor does the Veteran allege, that his heart disability was incurred during or as a direct result of an injury, event, or disease during active military service. Additionally, the first time the Veteran is shown to have a heart problem is in November 2007. See e.g., private treatment records dated November 2007 to August 2008. Indeed, there is no evidence of cardiovascular disease within one year of discharge so as to trigger the presumption of service connection for chronic diseases under 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board recognizes that lay assertions may serve to support a claim for service connection by demonstrating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). While the Veteran can describe certain symptoms, he is not competent to directly link his current heart disability to service, as medical expertise is required to do so. Indeed, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinion of the Veteran (that his current heart disability is related to his military service) is not considered probative evidence. Based on the foregoing, the Board finds the preponderance of the evidence is against the grant of service connection for a heart disability, to include as due to herbicide exposure. Accordingly, the benefit-of-the-doubt doctrine does not apply and the Veteran’s claim is denied. REASONS FOR REMAND 1. Entitlement to a compensable rating for service-connected residuals, post-operative tendon repair, 4th finger right hand is remanded. In the August 2013 rating decision on appeal, the RO continued a noncompensable rating for the Veteran’s service-connected residuals, post-operative tendon repair, right hand 4th finger. In November 2013, the Veteran submitted a timely notice of disagreement (NOD) as to the rating assigned to his service-connected right hand and finger disability. However, to date, the AOJ has not issued a statement of the case (SOC) addressing this issue. Because the Veterans Appeals Control and Locator System (VACOLS) does not reflect that the AOJ has acknowledged receipt of the NOD or that additional action is pending, this issue must be remanded for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999); The matter is REMANDED for the following action: Provide the Veteran with a statement of the case on the issue of entitlement to a compensable rating for service-connected connected residuals, post-operative tendon repair, right hand 4th finger, based on consideration of all evidence of record. See 38 C.F.R. § 19.29, 19.30; see also Manlincon, 12 Vet. App. at 240. Further advise the Veteran that a substantive appeal has not been received concerning this issue, and of the requirements for submitting an adequate and substantive appeal, as provided in 38 C.F.R. § 20.200, 20.202, and 20.302(b). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel