Citation Nr: 1806568	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  14-11 772	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUE

Entitlement to service connection for ischemic heart disease, to include as secondary to herbicide exposure.


REPRESENTATION

Veteran represented by: Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. Snoparsky, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from March 1961 to March 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota.  

In June 2015, the Veteran requested a hearing at the local RO before a Veterans Law Judge using videoconferencing techniques.  While the requested hearing has not been held, the Board is granting service connection for ischemic heart disease, constituting a full grant of benefit sought on appeal; therefore, the hearing request is rendered moot.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran was exposed to herbicide agents while serving in Thailand at Takhli Royal Thai Air Force Base (RTAFB) from March 1967 to March 1968.

2.  The Veteran is diagnosed with ischemic heart disease.


CONCLUSION OF LAW

The Veteran's ischemic heart disease is presumed to have been incurred during his active service in Thailand during the Vietnam era. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(e) (2016).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Legal Criteria

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

A veteran who suffers from certain diseases, such as ischemic heart disease, may be entitled to a rebuttable presumption of service connection if the veteran was exposed to an herbicide agent, such as Agent Orange, during active service. 38 C.F.R. § 3.309 (e) (2016).  

VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War.  In a May 2010 bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes.  A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. 

Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases.  Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans.  Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure."  The May 2010 bulletin identifies several bases in Thailand, including Takhli Royal Thai Air Force Base (RTAFB).  C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran who served on an air base in Thailand and provided perimeter security.

For the criteria for presumptive service connection to be met for most of the diseases listed at 38 C.F.R. § 3.309 (e), including ischemic heart disease, that disease shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307 (a)(6)(ii).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007): Charles v. Principi, 16 Vet. App. 370 (2002).  Laypersons have been found not to be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the veteran).  When the evidence supports the claim or is in relative equipoise, the claim will be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014).  If the preponderance of the evidence weighs against the claim, it must be denied.  See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).


II.  Merits of the Case

The Veteran was diagnosed with ischemic heart disease (coronary artery occlusive disease) and he underwent coronary artery bypass grafting X3 in February 2012, which the Veteran's medical records show is manifested to a compensable degree.  

The Veteran's personnel records and DD 214 show that he served in Thailand at the Takhli RTAFB while in the Air Force from approximately March 1967 to April 1968.  The Veteran's military occupational specialties (MOS) during this time were munitions loading team chief and weapons supervisor.  While the Veteran did not serve as a security policeman, a security patrol dog handler, or member of a security police squadron, there is credible evidence showing the Veteran's MOS required him to be near the air base perimeter.  

The Veteran submitted a statement in September 2012.  The Veteran stated he was assigned to the 333rd Tactical Fighter Squadron stationed at Takhli RTAFB from March 1967 to March 1968.  As a weapons technician, the Veteran stated his duties included being stationed at the end of the runway near the perimeter fence before and during take-off as well as to meet returning aircraft.

In March 2013, Mr. T. submitted a statement.  Mr. T. was stationed at Takhli RTAFB from January 1967 to January 1968.  He was assigned to the 333rd along with the Veteran.  Mr. T. stated the Veteran's job duties required him to be near the base perimeter.  Mr. T. reported the north end of the runway where he and the Veteran worked was within 150 to 200 feet from the perimeter of the base.  There was no vegetation at the ends of the runways.  Mr. T. noted the Veteran would have been near the perimeter of the base on numerous occasions.

Mr. G. sent in a letter in December 2013.  Mr. G. stated in 1967, he was assigned to the 333rd TFS at Takhli RTAFB.  Mr. G. was a Weapons Loading Crew Member and the Veteran was his Crew Chief.  Mr. G. stated the weapons load crew was responsible for loading armament on combat aircraft.  Mr. G. reported the arming and disarming areas, which were within a few yards of the perimeter fence, were completely clear of vegetation and may have been sprayed with herbicides.  Mr. G. also stated that they were, at times, misted by the C-123 Ranch Hand's overspray and that they got mist on them.

The Veteran submitted another statement in December 2013.  The Veteran stated he served in the 333rd stationed at Takhli RTAFB from March 1967 to March 1968 as a weapons technician.  His job required him to work at the end of the runway at the north end, which was near the perimeter of the base.

The Veteran had a hearing before the Decision Review Officer in Sioux Falls, South Dakota in April 2014.  The Veteran reported that while in Thailand at the Takhli RTAFB, herbicides were used.  The Veteran stated he worked along the perimeter and was there every day, even though he was not a dog handler or military police.  The Veteran stated he worked approximately 160 feet from the perimeter of the base.

While the details of his service in Thailand have not been corroborated by the Joint Services Research Records Center (JSRRC) or the National Archives and Records Administration (NARA) records, the Board finds the statements of the Veteran, Mr. G., and Mr. T. to be both competent and credible to show that the Veteran's duties while at Takhli RTAFB took him near the perimeter of the base.  The Veteran's personnel records also confirm his presence at Takhli RTAFB.

Affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran was exposed to herbicide agents during his deployment to Thailand.  As he also has ischemic heart disease that is manifested to a compensable level for VA purposes, ischemic heart disease shall be presumed to be due to exposure to certain herbicide agents.  See 38 C.F.R. §§ 3.307, 3.309(e). Accordingly, entitlement to service connection for ischemic heart disease is warranted.



ORDER

Service connection for ischemic heart disease is granted.




____________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs