Citation Nr: 18159260 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-60 090 DATE: December 19, 2018 ORDER Entitlement to service connection for ischemic heart disease, including as due to exposure to herbicide agents, is denied. FINDING OF FACT A preponderance of the evidence is against a finding that the Veteran has ischemic heart disease that had its clinical onset in or is otherwise related to active service, including exposure to Agent Orange; ischemic heart disease was not manifested to a compensable degree within one year of his discharge from active service. CONCLUSION OF LAW The criteria for entitlement to service connection for ischemic heart disease, including as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from May 1970 to December 1971. The Board sincerely thanks him for his service to his country. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496–97(1997)); see 38 C.F.R. § 3.303(b). Certain diseases, such as ischemic heart disease, may be service connected on a presumptive basis if manifested in a Veteran who was exposed to herbicide agents during service, even if there is no record of such disease during service. 38 U.S.C. § 1116 (a)(1), (2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 C.F.R. 3.307(a)(6)(iv). 1. Entitlement to service connection for ischemic heart disease as due to herbicide agent exposure. The Board notes at the outset that the preponderance of the evidence is against a finding that the Veteran’s heart disorder – ischemic heart disease -- was manifest in service or to a degree of 10 percent within 1 year of service, or is otherwise related to service. The Veteran does not claim as much. The Veteran’s Service Treatment Records (STRs) show normal heart conditions throughout service, and no VA or private treatment records contain evidence of a heart condition until several decades after service. The Veteran’s theory of entitlement is that service connection is warranted due to exposure to herbicides, including Agent Orange, during service in Korea, specifically at or near the Demilitarized Zone (DMZ). Private treatment records show that the Veteran has been diagnosed with ischemic heart disease, which is one of the listed conditions under 38 C.F.R. § 3.309(e). The Veteran’s service personnel records confirm he served in Korea from November 1970 to December 1971; a portion of his Korean service (through August 31, 1971) is covered by 38 C.F.R. § 3.307(a)(6). However, the Veteran’s unit is not among those listed in Department of Defense (DOD) guidance as having served at the DMZ, as required by the regulation for a presumption of herbicide exposure to apply. The RO conducted a search for the unit’s history through the Defense Personnel Records Information Retrieval System (DPRIS) and found that the unit was stationed on Wolmi-Do Island, connected by a causeway to the Incheon Port facilities, until it moved to the Southeastern port city of Pusan, South Korea in May and June of 1971. It was noted that the company’s mission was primarily aimed towards supporting the U.S. Army Pusan Depot Activity Supply Poin and Camp Carrol Depot by the transportation of general cargo by motor transport. The response noted that the unit histories “do not document any activity such as moving cargo to resupply units in the Demilitarized Zone (DMZ) or any specific duties performed by the unit members along the DMZ. In addition, the histories do not document the use, storage, spraying or transportation of herbicides to include Agent Orange.” The Veteran submitted a statement in March 2015 alleging that he transported materials and personnel to and from the DMZ and assisted in recovery from the area. In his April 2016 Notice of Disagreement (NOD), he also states that he sometimes stayed at the DMZ “for several days.” In his November 2016 Form 9, the Veteran alleges that he hauled “hazardous chemicals to include Agent Orange,” and that he was sent to the DMZ “numerous times.” The Veteran also submitted a lay statement from Mr. [redacted], who served with the Veteran in Korea. He asserts that the Veteran was stationed at Wolmi-Do and hauled “dangerous cargo.” He also asserts that their base was within .6 miles of the DMZ, and that Agent Orange sprayed there carried over their base with the wind. The Board acknowledges the Veteran’s belief that the Veteran hauled Agent Orange, and Mr. [redacted] belief that the herbicide was carried toward them by wind. However, the identification of herbicides and their movement in the air is a topic beyond the knowledge of a layperson, and therefore neither is competent to identity the herbicide. The Board also acknowledges that the Veteran’s personnel records are consistent with his account of being stationed in Incheon, and the RO’s DPRIS search also confirmed that the Veteran was stationed at Wolmi-Do. This island location is close to the DMZ. However, Mr. [redacted] statement does not suggest that either he or the Veteran ever went to the DMZ, and he does not specifically state that the dangerous cargo he transported in service included Agent Orange. Therefore, the statement appears to contradict, or at least fails to support, the Veteran’s claim of serving at the DMZ. Neither Mr. [redacted] statement nor the DPRIS records support the Veteran’s assertion, and therefore the Board finds the Veteran’s statements regarding the DMZ lack credibility due to inconsistency with the service department evidence. The Board finds no intent to deceive on the part of the Veteran, and notes that the inconsistency may simply be due to faulty memory after the passage of many years. Accordingly, the preponderance of the evidence is against a finding that the Veteran was exposed to Agent Orange at the DMZ or otherwise during his service in Korea, and service connection is also not warranted on a presumptive basis under 38 C.F.R. §§ 3.307, 3.309. Accordingly, entitlement to service connection for ischemic heart disease is denied. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. McCormick, Associate Counsel