Citation Nr: 1815893	
Decision Date: 03/16/18    Archive Date: 03/23/18

DOCKET NO.  17-05 660A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to an earlier effective date for Special Monthly Pension based on the need for Aid and Attendance.

2.  Entitlement to service connection for ischemic heart disease to include as due to herbicide exposure.  


REPRESENTATION

Veteran represented by:	John Dierking, attorney


WITNESSES AT HEARING ON APPEAL

The Veteran, his spouse, and S.B.



ATTORNEY FOR THE BOARD

Michael Duffy, Associate Counsel 


INTRODUCTION
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The Veteran served on active duty from October 1968 to May 1971.  

This appeal comes to the Board of Veterans' Appeals (Board) from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified before the undersigned Veterans Law Judge at a January 2018 hearing.  A transcript of the hearing is associated with the Veteran's claims file.  

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.  At the January 2018 hearing, the representative requested a withdrawal on the record of the appeal for entitlement to an earlier effective date for Special Monthly Pension based on the need for Aid and Attendance.

2.  The evidence shows the Veteran has a current disability of ischemic heart disease to include coronary artery disease and residuals thereof.  

3.  Applying the benefit of the doubt, the evidence shows the Veteran was exposed to herbicides in the Korean DMZ between August 1969 and March 1971.



CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal for entitlement to an earlier effective date for Special Monthly Pension based on the need for Aid and Attendance have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for entitlement to service connection for ischemic heart disease and residuals thereof have been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Entitlement to an Earlier Effective Date for Special Monthly Pension based on the need for Aid and Attendance

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the appellant has withdrawn the appeal in regard to the claim for entitlement to an earlier effective date for Special Monthly Pension based on the need for Aid and Attendance..  See January 2018 hearing testimony.  Accordingly, the appeal of that issue is dismissed.

Entitlement to Service Connection for Ischemic Heart Disease to Include as Due to Herbicide Exposure.  

Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

The laws and regulations pertaining to herbicide exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have a disease listed in 38 C.F.R. § 3.309(e).  See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a).  Diseases associated with exposure to herbicide agents, which are listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service.  See 38 C.F.R. § 3.309(e); 38 C.F.R. § 3.307(a)(6).  The presumption applies to ischemic heart disease including coronary artery disease as long as the disability manifests to a compensable degree at any time after service.  See 38 C.F.R. § 3.309(e); 38 C.F.R. § 3.307(a)(6)(ii).  

VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam from January 9, 1962, and ending on May 7, 1975, or in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area which herbicides are known to have been applied from April 1, 1968, to August 31, 1971, 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).  VA has determined that if exposure outside of Vietnam were proven and the Veteran was diagnosed with one of the diseases VA presumes to be related to herbicide exposure, VA would presume that the Veteran's disease was caused by exposure to Agent Orange.  See, e.g., comments on final rule adding type 2 diabetes to list of diseases presumptively service connected in 38 C.F.R. §3.309(e), at 66 Fed. Reg. 23, 166 (May 8, 2001).  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans' Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).

The record shows that the Veteran suffered heart failure due to coronary artery disease and suffers from residuals thereof.  See, e.g., August 2014 Ischemic Heart Disease Disability Benefits Questionnaire signed by D.J.. Therefore, a presumption of service connection for the disability will apply if exposure to herbicides is established.  In this case, the Board finds that the evidence shows the Veteran was at least as likely as not exposed to herbicides in the Korean DMZ during the Vietnam Era.  

The Department of Defense has identified several military entities as operating in the Korean DMZ during the qualifying time period of April 1, 1968 to August 31, 1971.  See VBA Manual M21-1, IV.ii.1.H.4.b..  Included is the 1st battalion, 31st infantry unit, which may have been attached to either the second or seventh infantry divisions.  The Veteran's military personnel records confirm the Veteran served in the 1st battalion, 31st artillery unit attached to the second and seventh infantry divisions between August 1969 and March 1971..  While the Veteran's service is listed with the artillery unit rather than the infantry unit, the Board considered other credible of record to determine whether the Veteran was exposed to herbicides at the DMZ under similar circumstances as the infantry unit.  

In this case, the Board affords great probative weight to the statements of over fourteen servicemen including the hearing testimony of J.B., who indicated that the Veteran took part in military duties and exercises at the DMZ during the qualifying time period.  The Veteran and J.B. testified that the Veteran performed vehicle maintenance duties in Korea including at the DMZ in areas where herbicides were sprayed.  These statements are consistent with additional written lay statements from many servicemen received by the Board in support of the Veteran's appeal.  The Board finds the supporting statements to be credible in the context of this case and notes that the Veteran's certificate of release or discharge reflects that he served as a general vehicle repairman during the qualifying time period.  

In light the extensive statements and other credible evidence corroborating the Veteran's accounts of service at the DMZ during the qualifying period, the Board finds that the Veteran was at least as likely as not exposed to herbicides at the DMZ through his service as a general vehicle repairman in the first battalion, 31st artillery unit.  Applying the benefit of the doubt, the Board finds that the Veteran was exposed to herbicides and is entitled to a presumption of service connection for his ischemic heart disease.  


ORDER

The appeal of the issue of entitlement to an earlier effective date for Special Monthly Pension based on the need for Aid and Attendance is dismissed.

Entitlement to service connection for ischemic heart disease due to herbicide exposure is granted.  




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs