Citation Nr: 1807369 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-40 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for coronary artery disease, including as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served in the United States Army from January 1964 to January 1969, including service in the Republic of Vietnam. He was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) from a November 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. By correspondence dated July 2015, the Veteran withdrew his request for a hearing. In July 2017, the Board remanded the Veteran's claim to obtain VA medical records and conduct a VA examination. There has been substantial compliance with the Board's remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance"); Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Thus, the Board will proceed to review and decide the claim with respect to the issues now on appeal based on the evidence that is of record. The Board has re-characterized the Veteran's claim of entitlement to service connection for ischemic heart disease (also claimed as heart and chest pain), including as due to exposure to herbicide agents, to a claim of entitlement to service connection for coronary artery disease, including as due to exposure to herbicide agents. This is based on medical diagnoses contained in the September 2017 VA medical opinion. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that when a claimant makes a claim, the claimant is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). 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. The Veteran is presumptively exposed to Agent Orange due to his confirmed service in Vietnam. 2. The Veteran has been diagnosed with coronary artery disease, which by law is a type of ischemic heart disease. CONCLUSION OF LAW The criteria for service connection for coronary artery disease, including as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of 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 of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military service, served in Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. For the purposes of this section, "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the above-stated period. 38 C.F.R. § 3.307(a)(6). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. The presumption requires that a veteran actually stepped foot on land in Vietnam or served in the inland waterways in the interior of the Republic of Vietnam ("brown water service" versus "blue water service"). Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). If a Veteran is exposed to an herbicide agent during active service and one of the listed diseases manifests any time after service, the disability is presumed related to the exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If herbicide agent exposure is not presumed, the Veteran may attempt to show herbicide agent exposure on a facts-found basis. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Exposure then becomes a matter of fact to be determined by the Board. The Veteran is entitled to service connection on a presumptive basis. A VA examination and medical opinion dated September 2017 state that the Veteran has coronary artery disease. By statute, this is listed as an example of ischemic heart disease, which is presumptively linked to Agent Orange exposure. See 38 C.F.R. § 3.309(e). As the Veteran is presumed to have been exposed to Agent Orange and has been diagnosed with a disease presumptively linked to Agent Orange exposure, the Veteran is entitled to service connection for coronary artery disease. In reaching this conclusion, the Board has considered the September 2017 VA medical opinion. This opinion states that the Veteran has non-obstructive coronary artery disease, not ischemic heart disease. Because non-obstructive coronary artery disease is not a disease associated with exposure to herbicide agents, the examiner concludes that it is less likely than not that the Veteran has ischemic heart disease due to herbicide agent exposure. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). The Veteran is nevertheless entitled to service connection or coronary artery disease. Federal regulations do not distinguish between obstructive coronary artery disease and non-obstructive coronary artery disease. See 38 C.F.R. § 3.309(e). Because of this, entitlement to service connection for coronary artery disease becomes a legal question, not a medical question. Resolving reasonable doubt in favor of the Veteran, the Veteran is entitled to prevail in his claim of entitlement to service connection for coronary artery disease. See 38 C.F.R. § 3.102. ORDER Entitlement to service connection for coronary artery disease, including as due to exposure to herbicide agents, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs