Citation Nr: 1806631 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-07 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for ischemic heart disease (IHD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1961 to April 1969, with service in Thailand. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran initially requested a Board hearing on his March 2013 VA Form 9 (Appeal to [the Board]), but withdrew this request in August 2014. The Board remanded this claim in June 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Exposure to herbicide agents during active service in Thailand is not shown. 2. IHD was not manifest during active service or within one year of active service and IHD is not related to the Veteran's active service. CONCLUSION OF LAW IHD was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Herbicide Agent Exposure in Thailand Legal Criteria 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, 1131 (2012); 38 C.F.R. § 3.303 (2017). If a veteran was exposed in-service to certain herbicide agents (e.g., Agent Orange), service connection for certain diseases, to include IHD, will be presumed. See 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). VA has established a procedure for verifying a veteran's exposure to herbicide agents in Thailand during the Vietnam Era. See VA Adjudication Procedures Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.5 (herein M21-1); Compensation and Pension Service Bulletin, May 2010. VA "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," as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." See Compensation and Pension Service Bulletin, May 2010. An undated Veterans Benefits Administration "Memorandum for the Record," included in the Veteran's file, also notes that the CHECO report does not distinguish between the tactical herbicides associated with designated agents and common agricultural herbicides also used on the bases and reports that only in certain limited circumstances were the tactical herbicides found to be present in Thailand. Nevertheless, the May 2010 Compensation and Pension Service Bulletin stated that "[s]pecial consideration of herbicide exposure on a facts found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases" and that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." Under the procedures outlined in the M21-1, if a Veteran served at certain Royal Thai Air Force Base (RTAFBs), including Takhli RTAFB, during the Vietnam Era as a security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, then herbicide exposure should be conceded on a direct or facts-found basis. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. Evidence and Analysis The Veteran's primary contention has been that he was exposed to herbicide agents during his active service in Thailand and that entitlement to service connection is accordingly warranted for IHD. The evidence of record indicated that the Veteran has IHD. See, e.g., April 2011 VA Form 21-0960A ([IHD] Disability Benefits Questionnaire) (noting that the Veteran has IHD and coronary artery disease that was diagnosed in May 2006). While the record included some references to Vietnam, these appeared to be in error and the record otherwise did not indicate such service. In this regard, an April 2017 VA examination report stated that "[t]he [V]eteran reports he served at Takhli Airforce Base in Vietnam." Takhli RTAFB was in Thailand and not Vietnam and this statement appears to have been in error. Also, a September 2005 VA treatment note stated that the Veteran "came from family of 3 brothers, all went to [V]ietnam," but also stated that the Veteran served in Thailand. The Veteran's service personnel records noted service in Thailand at Takhli RTAFB from February 1969 to April 1969 and noted that his duty title at this time was an admin specialist. The relevant DD 214 for the period of the Veteran's Thailand service stated that the Veteran's specialty title was also admin specialist. As such, the objective official personnel records noted that the Veteran served at the Takhli RTAFB during the Vietnam Era. The evidence did not indicate active service in Vietnam and, despite some references to Vietnam in the evidence of record, the Veteran has not expressly raised this contention in statements submitted during the appeal period (which will be discussed further below). Overall, the Board finds that the Veteran served in Thailand at the Takhli RTAFB during the Vietnam Era, but that he did not serve in Vietnam. On the November 2010 VA Form 21-526 (Veteran's Application for Compensation and/or Pension), the Veteran listed a disability of IHD and noted that he was treated from May 2006. He reported that he was exposed to Agent Orange or other herbicides, that his disability was IHD and that he was exposed in Thailand at Takhli RTAFB "and the Vietnam War." In a March 2011 statement, the Veteran stated that at Takhli RTAFB "my duty was in/out and around the aircraft [and] the flight line." In a March 2013 statement, the Veteran stated that "this is what I could remember, after 45 y[ea]rs. We worked very close to the perimeter, by the runway...we took care of flight operation, coming [and] going, also maintenance of all aircraft...I could smell the flumes from, the aircraft, and see the pilot's faces, when they came in." In another March 2013 statement, the Veteran characterized the previously noted statement as "explanation of recollection of my location, the runway and the perimeter." Also in that March 2013 statement, the Veteran stated "service connection for [IHD] as a result of exposure to Agent Orange - Takhli AFB (RTAF)...1968-1969" and that "I was in administration, on the flight line approximately-- as wide as the runway. The Veteran also submitted various documents in support of his claim. These included an aerial photograph of Takhli RTAFB with his handwritten notations (submitted in March 2013). In a March 2013 statement, the Veteran described this document as "outline of Takhli (CHECO Report Photo) and my location - near perimeter where spraying took place. I was at Takhli from January to April 1969." The notations on the aerial photo marked the location of the Veteran's reported station location, as well as highlighting an area on the map with the statement that "this is the perimeter where [Agent Orange] was sprayed." The Board observes that the area highlighted as the perimeter appears in fact to be the flight line, rather than the base perimeter. In addition, the Veteran also submitted in March 2013 a hand drawn map of Takhli RTAFB, which besides a depicted building stated "operations where I worked at. I could smell the flumes from the aircrafts taking off." This depicted building was shown as next to the runway which was not on the perimeter. Also of record is a March 2017 email statement and documents from an archivist from the Air Force Historical Research Agency. The AOJ submitted details regarding the Veteran's service at Takhli RTAFB, his specialty (admin specialist), a quote of the March 2013 statement discussed above that stated that "[w]e worked very close to the perimeter" and a copy of the map provided by the Veteran (it is not clear if this map was the aerial photograph of Takhli from the CHECO report or the hand drawn map from the Veteran). The email statement from the archivist stated in part that: As an admin specialist, [the Veteran] never did any maintenance work on the aircraft (he is probably over-identifying with his squadron, or office that coordinated flying operations and maintenance functions). His work station would NOT have been by the perimeter, as his map clearly shows. I have attached a map of Takhli for you to compare with his. Operations were close to the flight line, but not the perimeter. Aircraft have to stay away from the perimeter--when parked, they are located away from the perimeter for protection; when landing and taking off, they have to fly over the perimeter to do those two functions--they don't want to hit the fence! As you can see from the attached .pdf and power point maps of Takhli from around that time, Base Operations was at the center of the base, near the flight line. Far from the perimeter. As referenced, the archivist included documents with the email, to include a map of Takhli RTAFB and a map labeled "Airfield Diagram" that indicated base operations as being in a building near the runway. The email statement also referenced "commercial-grade herbicides" being "used along the perimeter" of Takhli RTAFB from April to September 1969. Reviewing the evidence of record, the Board finds that the Veteran did not serve near the base perimeter of the Takhli RTAFB and thus herbicide exposure is not conceded on a direct or facts-found basis. As noted above, under the applicable M21-1 procedures, if a veteran served at certain RTAFBs, including Takhli RTAFB, during the Vietnam Era as a security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter, then herbicide exposure should be conceded on a direct or facts-found basis. The Veteran has not contended, and the evidence does not suggest, that he served as a security policeman, security patrol dog handler or member of the security police squadron. As such, the key issue is whether the Veteran served "near the air base perimeter." The Board has considered the Veteran's contentions, which were outlined above. Such included his March 2013 statement that "[w]e worked very close to the perimeter" and an additional March 2013 statement stating "my location, the runway and the perimeter." Notably, the Veteran reported only his general location and not that his work duties included entry into defoliated areas which resulted in some form of actual contact (skin, respiratory, gastrointestinal) with the herbicide agents, and the nature of his duties as an administrator do not suggest that this was likely. His duties were not similar to the security occupations that by nature would require contact with herbicide in the patrolled areas. The Veteran is competent to report the location of his service and the Board does not question the credibility of the Veteran's report as to his location. The Board, however, finds more probative the statement and information obtained in March 2017 from an archivist from the Air Force Historical Research Agency. The Veteran variously reported that he worked around aircraft and the flight line/runway. See March 2011 Statement ("my duty was in/out and around the aircraft [and] the flight line"), March 2013 statement ("We worked very close to the perimeter, by the runway), March 2013 statement ("I was in administration, on the flight line"). The March 2017 statement from the Air Force Historical Research Agency archivist stated, essentially, that base operations and the Veteran's work station would have been near the flight line, but that the flight line was not near the base perimeter. In this regard, as quoted, the archivist stated that the Veteran's "work station would NOT have been by the perimeter...Operations was close to the flight line, but not the perimeter... Base Operations was at the center of the base, near the flight line. Far from the perimeter." As noted, the archivist also referenced and provided maps of Takhli RTAFB. Overall, the Board affords the statement from the Air Force Historical Research Agency archivist significant probative value, as such statement was based on objective historical records and was provided by an individual and an official government agency with presumably significant expertise in regards to the relevant issues in this case. While acknowledging the Veteran's report of service near the Takhli RTAFB perimeter, the Board affords more probative value to the statement and information obtained from Air Force Historical Research Agency archivist. The Board acknowledges that in the January 2018 Written Brief Presentation the Veteran's representative stated that "[w]hile the record does not clearly identify whether the Veteran was exposed to Agent Orange while stationed in Thailand, there is no basis in the record to question the Veteran's credibility regarding his statements" and that "[a]s there is no evidence of record that contradicts the Veteran's claim as to the type of duties performed during his service in Thailand, they must be presumed to be accurate. Based on the evidence of record, the evidence for and against this claim is at least in equipoise." As noted, the Board does not question the credibility of the Veteran's report of his duties while at Takhli RTAFB. The Board does, however, find his report of service near the base perimeter to be inaccurate, specifically as to the issue of the flight line's proximity to the base perimeter. As to this point, as explained above, the Board finds more probative the statement and information obtained from the Air Force Historical Research Agency archivist, which stated, essentially, that the flight line was not near the base perimeter. While the Veteran reported that he served "very close to the perimeter," this is contradicted by the statement from the Air Force Historical Research Agency archivist. As outlined, the archivist considered the Veteran's reported duties and, essentially, found that the Veteran would not have worked near the base perimeter, which the archivist supported by reference to provided RTAFB maps. While the Veteran is competent to report the location of his service, and the Board does not question the credibility of such report, the Board does find the Veteran's reported location of service to be inaccurate in that it is contradicted by more probative evidence of record. In sum, the Board finds that the Veteran did not serve near the base perimeter of the Takhli RTAFB nor did his duties require him to enter defoliated areas and be in contact with herbicide agents. As this is an issue of direct service connection and not expansion of a presumption of exposure, herbicide exposure is not conceded on a direct or facts-found basis. In addition, the Board acknowledges that in the March 2012 Notice of Disagreement (NOD), the Veteran's representative stated that the "Vet[eran] contends that the VA recognizes that they sprayed herbicides in Thailand. Records confirm that he was stationed at the [RTAFB]. The Vet[eran] contends if the herbicide was sprayed he was breathing it. There for making him exposed to the herbicide." Also, in the January 2018 Written Brief Presentation the Veteran's representative stated "although the [V]eteran's military occupational specialty did not involve prolonged exposure to the perimeter of the base; his potential exposure cannot be ruled out. The presumption that the [V]eteran may have entered into contaminated areas during his assignment in Thailand, is not unconceivable." It was also stated that "VA cannot rule out that the Veteran was not exposed to an herbicide agent elsewhere (other than on or near the base perimeters) on Thailand bases." It was further stated that that "[n]ot all cases of exposure in Thailand are as clear cut. However, in this case, the [V]eteran's military service places him in the vicinity, of which exposure has been acknowledged." It was also stated that "the [V]eteran's possible consumption of contaminated foods cannot be disputed, ruled out or disassociated from the claim during adjudication." The Board notes that, as referenced above, under the applicable M21-1 procedures if a veteran served at Takhli RTAFB near the air base perimeter, then herbicide exposure should be conceded on a direct or facts-found basis. As such, herbicide exposure is conceded based on service near the air base perimeter and not simply based on presence on a RTAFB, to include breathing or eating foods while on a RTAFB where herbicides were sprayed. As explained above, the Board has found that the Veteran's did not serve near the base perimeter of the Takhli RTAFB. Accordingly, based on the applicable provisions of the M21-1, the Veteran's potential exposure can be ruled out. While it is accurate that it is "not unconceivable" that the Veteran "may have entered into contaminated areas," the Board has found that the Veteran did not serve near the base perimeter (which is the area accepted by VA as the contaminated area of RTAFBs). The Board also notes that in the June 2016 Board remand, a directive instructed to contact the Joint Services Records Research Center (JSRRC) to attempt to verify the Veteran's reported herbicide agent exposure. The AOJ contacted the Air Force Historical Research Agency archivist instead. A March 2017 AOJ memorandum stated that "[p]er JSRRC 'If you received a response from [Air Force Historical Research Agency] you would not need to send it to JSRRC since JSRRC would request the records from [Air Force Historical Research Agency].'" As such, the AOJ's method of contacting the Air Force Historical Research Agency directly, as opposed to the JSRRC, produced apparently the same result contacting the JSRRC would have. As such, the Board finds that this portion of the remand directive was substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, the relevant remand directive stated that "the JSRRC should attempt to verify that whether the Veteran's MOS (taking into account his statements, including his statements about aircraft maintenance) would have placed him...in frequent contact with airplanes that delivered herbicides" and that "[i]n making this determination, the AOJ should take into account the recent updates to VA's regulations establishing that residual amounts of herbicides on plane surfaces can increase adverse health effects in Veterans who worked on these planes. See 38 C.F.R. § 3.307 (a)(6)(v)." As noted above, the Air Force Historical Research Agency archivist stated that "[a]s an admin specialist, [the Veteran] never did any maintenance work on the aircraft (he is probably over-identifying with his squadron, or office that coordinated flying operations and maintenance functions)." The statement addressed whether the Veteran would have been in frequent contact with any airplanes through maintenance and stated that he would not have been. The Board also notes that 38 C.F.R. § 3.307(a)(6)(v) (2017) provides that an individual who "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent." The evidence does not indicate that the Veteran maintained C-123 aircraft known to have been used to spray an herbicide agent. In this regard, in a March 2013 statement, the Veteran stated that "we took care of flight operation, coming [and] going, also maintenance of all aircraft...F105 [and] EB 66's." No reference was made to C-123s in this statement and the Veteran has not otherwise asserted that he regularly and repeatedly maintained C-123 aircraft known to have been used to spray an herbicide agent. As such, the Board finds that in-service exposure to an herbicide agent cannot be presumed on this basis. In conclusion, the Board has considered the contentions of the Veteran and his representative, but finds that, for the reasons outlined above, exposure to herbicide agents during active service in Thailand is not shown. II. Other Theories of Service Connection The Veteran (or his representative) has not otherwise contended that entitlement to service connection is warranted on any basis other than reported herbicide agent exposure, which was addressed in detail above. The evidence also does not otherwise show that entitlement to service connection is warranted under any other theory. First, in regards to direct service connection, generally in order to establish such, three elements must be established: a current disability, an in-service event and a nexus between the current disability and the in-service event. While there is evidence of a current disability (IHD), there is no evidence of an in-service event and no nexus between the present disability and active service and therefore service connection is not warranted on a direct basis. In this regard, the Veteran's service treatment records (STRs) did not contain complaints of a cardiovascular nature. In addition, a March 1969 separation examination report noted upon clinical evaluation that the heart was normal, noted a negative chest x-ray, noted no defects or diagnoses and noted that the Veteran was qualified for separation from service. On an accompanying Report of Medical History form, the Veteran reported that his present health was good and he denied ever having or having now pain or pressure in chest or palpitation or pounding heart. On a March 1969 Dental Patient History form, the Veteran denied ever being treated for a heart condition. Overall, the evidence did not indicate any in-service event (beyond the reported in-service herbicide exposure) that the Veteran's current IHD could be related to. As such, there is also no nexus between the current disability (IHD) and active service. Lacking these required elements, entitlement to service connection on a direct basis is not warranted. Second, entitlement to service connection may be established under 38 C.F.R. § 3.303(b) (2017) when a chronic disease is shown in service and when there are subsequent manifestations of the same chronic disease. In addition, if a chronic disease, including cardiovascular-renal disease (which the Board will construe to include IHD), becomes manifest to a degree of 10 percent or more within one year of separation from active service, it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). In this case, the evidence did not indicate that IHD manifested during the Veteran's active service, as was addressed above in the direct service connection discussion, or within one year of the Veteran's separation from active service in April 1969. The evidence indicated that the Veteran's IHD was first diagnosed in 2006, more than one year after the Veteran's separation from active service in April 1969. See, e.g., April 2011 VA Form 21-0960A (noting that the Veteran has IHD and coronary artery disease that was diagnosed in May 2006). As such, entitlement to service connection for IHD is not warranted on the basis of a chronic disease in service or on the basis of the presumption related to chronic diseases. III. General Overall, the Board finds that exposure to herbicide agents during active service in Thailand is not shown. The Board additionally finds that IHD was not manifest during active service or within one year of active service and that IHD is not related to the Veteran's active service. As such, the Board concludes that IHD was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). Accordingly, the Veteran's claim must be denied. Finally, neither the Veteran nor his representative has raised issues with respect to VA's duty to notify or assist or presented other procedural arguments. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). ORDER Entitlement to service connection for IHD is denied. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs