Citation Nr: 18115682 Decision Date: 07/03/18 Archive Date: 07/02/18 DOCKET NO. 12-27 507 DATE: July 3, 2018 ORDER Entitlement to service connection for a heart disability, to include ischemic heart disease (IHD), is denied. FINDING OF FACT The Veteran did not incur an event, injury, or disease related to IHD during active duty service, to include being exposed to herbicide agents, including Agent Orange. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart disability, to include IHD, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1967 to June 1969. He died in July 2013. The appellant is the Veteran’s surviving spouse. The claim of entitlement to service connection for a heart disability, to include IHD, was dismissed due to the Veteran’s death in an October 2013 Board decision; however, the appellant was substituted as the claimant for all of the claims that were pending at the time of the Veteran’s death. See 38 U.S.C. §§ 5121, 5121A (2012); 38 C.F.R. § 3.1000 (2017). The Board notes that while the issues of entitlement to service connection for esophageal cancer and a heart disability were pending at the time of the Veteran’s death, the Regional Office (RO) denied the esophageal cancer claim by a March 2014 rating decision, as well as a claim for service connection for the cause of the Veteran’s death. The appellant was notified of this decision by a March 2014 letter, and she has not appealed these claims. Accordingly, the only issue before the Board at this time is the issue of entitlement to service connection for a heart disability, to include IHD. VA’s duty to assist includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon, 20 Vet. App. at 81; see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Prior to his death, the Veteran was not provided with a VA examination for this service connection claim, nor has the appellant since the Veteran died. However, as explained below, the Board finds that there was no event, injury, or disease related to the Veteran’s IHD that occurred in service. VA, therefore, has no duty to provide a medical examination for this claim. The appellant contends that the Veteran’s heart disability, including IHD, was caused by his exposure to herbicide agents, including Agent Orange, while stationed in or visiting the Republic of Vietnam during the Vietnam Era. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Furthermore, for the diseases listed in 38 C.F.R. § 3.309(e), including IHD, the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed. Section 3.309(e) provides that when exposure to herbicide agents is established during active duty, diseases associated with herbicide agent exposure that manifest at any date, however remote, after service are entitled to service connection, unless they are clearly attributable to causes unrelated to service (intercurrent causes). See 38 C.F.R. § 3.307(d). The diseases listed at 38 C.F.R. § 3.309(e) must become manifest to a degree of 10 percent or more at any time after service, except for certain diseases, which are required to have manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during the active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The appellant contends that the Veteran’s IHD was caused by his in-service exposure to herbicide agents while stationed in or visiting the Republic of Vietnam. Initially, the Board notes that the Veteran was diagnosed with heart disorders prior to his passing. For example, December 2010, November 2012, and May 2012 IHD disability benefits questionnaires (DBQs) showed diagnoses of coronary disease, cerebrovascular disease, coronary artery disease (CAD), and coronary vascular disease (CVD), and these DBQs indicated that he had percutaneous coronary interventions in 2005 and 2006, as well as a myocardial infarction in 2002. Thus, the first element of service connection is met. However, regarding the second element of service connection, the Board finds that the Veteran did not incur an event, injury, or disease related to IHD during active duty service, to include being exposed to herbicide agents. Specifically, the Veteran’s service treatment records, including his May 1966, June 1967, May 1968, June 1969, and June 1971 reports of medical examination and history, are silent as to complaints of or treatment for abnormal heart symptoms, including any form of IHD. The record, including the private and VA treatment records that show that the Veteran had a heart attack and a heart stent placement, indicate that these disorders manifested in the 2000s, more than 35 years after separation from service. In fact, the appellant does not contend that these disorders began during the Veteran’s active duty service. She contends that they were caused by his in-service exposure to herbicide agents, including Agent Orange, while he was stationed onboard the USS Woodpecker. Under 38 C.F.R. § 3.307(a)(6), the presumption of service connection with respect to a claim for IHD, only applies to veterans who had set foot in the Republic of Vietnam or veterans who served in inland waterways. During his lifetime, the Veteran generally contended that he was exposed to Agent Orange in Vietnam in a November 1990 application for compensation or pension (VA Form 21-526), and in an October 1994 statement and VA Form 21-526 in connection with his claim for service connection for Hodgkin’s disease. He also asserted in an April 2011 statement that he stepped onto the beaches and on land in “area 3” in Vietnam while stationed onboard the USS Woodpecker to pick up dead pilots on the beaches. The Veteran’s service personnel records show that he served onboard the USS Woodpecker from June 20, 1968 to June 14, 1969. VA’s Adjudication Procedure Manual includes a list of ships, which operated temporarily in Vietnam’s inland waterways or those which docked to the shore. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated December 9, 2014), VA Adjudication Procedure Manual M21-1 (M21-1). M21-1.IV.ii.1.H.2.b. The list of ships operating temporarily on Vietnam’s inland waterways includes “blue water” ships which operated primarily on Vietnam’s offshore waters but entered Vietnam’s inland waterways temporarily as part of their gunfire, interdiction, or support missions. All veterans who served aboard these vessels at the time of entry into Vietnam’s inland waterways are eligible for the presumption of exposure to herbicide agents, including Agent Orange. Id. Similarly, the list of ships that docked to shore or pier in Vietnam includes large ocean-going ships of the Blue Water Navy that entered an open water harbor and docked to a pier or otherwise docked to the shore of Vietnam. As a result of this docking, VA assumes that crewmembers had the opportunity to go ashore for a work detail or for liberty leave. Therefore, any veteran aboard a ship at the time of docking will be eligible for the presumption of exposure if that veteran provided a lay statement of personally going ashore. Id. However, the record does not establish that the USS Woodpecker entered into Vietnam’s inland waterways or docked in Vietnam at the time that the Veteran served onboard that ship. Specifically, while the list of ships notes that the USS Woodpecker entered Qui Nhon Bay during May 1965, the Veteran did not begin his service onboard this vessel until 1968. Additionally, while the claims file includes a picture of the USS Woodpecker alongside the USS Jason from June 1968 off the coast of Vung Tau, South Vietnam, there is no indication that the USS Woodpecker entered inland waters at that time or docket at any port in Vietnam. The Veteran’s service personnel records, including his DD Form 214, show that he had a water transportation occupation military occupational specialty (MOS) and that he received the National Defense Medal, the Vietnam Service Metal with two Bronze Stars, and the Vietnam Campaign Metal. With regard to the Veteran’s receipt of these medals, the M21-1 states that receipt of the Vietnam Service Medal and Vietnam Campaign Medal does not constitute proof of Republic of Vietnam service for the purpose of establishing herbicide agent exposure. M21-1.IV.ii.1.H.1.g. The Vietnam Service Medal was given to service members who were stationed on ships offshore or flew high altitude missions over the Republic of Vietnam as well as those who served in Thailand. The Republic of Vietnam Campaign Medal was awarded by the Government of the Republic of Vietnam to both personnel in the Republic of Vietnam and personnel “outside the geographical limits of the Republic of Vietnam.” See Army Regulation 600-8-22, “Military Awards” (25 June 2015). Thus, these awards cannot serve as evidence of the Veteran’s physically serving in Vietnam. The RO attempted to corroborate the Veteran’s contentions that he stepped onto the beaches and on land in “area 3” in Vietnam while stationed onboard the USS Woodpecker in order to retrieve dead pilots. In an April 2011 personnel information exchange system (PIES) and a June 2011 defense personnel records information retrieval system (DPRIS) replies, the appropriate records repositories determined that the USS Woodpecker did not dock, transit inland waterways, or that its personnel stepped foot in the Republic of Vietnam during the Veteran’s service onboard this vessel. These replies indicated that, contrary to the Veteran’s assertions that he stepped onto Vietnam’s beaches to retrieve dead pilots, graves registration and medical personnel would have been responsible for retrieving the remains of U.S. armed forces personnel. The records repository personnel noted that wounded armed forces personnel would have been sent to a hospital ship or the nearest military hospital and that deceased service members would have been handled by medical and graves registration personnel and the remains would have been flown home. As noted above, the Veteran’s service personnel records do not indicate that his MOS was as a graves registration or medical professional. Accordingly, as the record does not show that the Veteran served, visited, or set foot on the ground in the Republic of Vietnam or its inland waters, the presumption of exposure to herbicide agents, to include Agent Orange, does not apply to the appellant’s claim. In multiple statements, including a September 2013 congressional correspondence and a February 2018 statement, the appellant contended that VA has already established that the Veteran was exposed to herbicide agents in Vietnam in connection with his service connection claim for Hodgkin’s disease, as well as residual disabilities of a splenectomy, an abdominal scar, and recurrent Hodgkin’s disease of the right seventh and eight ribs and fracture of the sixth rib. The record shows that the RO granted service connection for these disabilities by a May 1995 rating decision. In this decision, the RO states that although the Veteran’s Hodgkin’s disease was not shown in service, service connection was granted on the basis of presumption and that the Veteran’s service medical records for the period of May 1966 to June 1971 show that he served in Vietnam during his period of active duty service. Generally, the law of the case doctrine prohibits a different finding on an issue that has already been determined by the same body in the same case. Hazan v. Gober, 10 Vet. App. 511, 521 (1997) (noting that the principle of collateral estoppel forbids re-litigation of the same issue on the same facts); Browder v. Brown, 5 Vet. App. 268, 270 (1993) (noting that under the doctrine of “law of the case,” questions settled on a former appeal of the same case are no longer open for review). However, the Board notes that the prior finding that service connection for Hodgkin’s disease was warranted based on the Veteran’s presumed exposure to herbicide agents because he served in Vietnam is a factual determination made by the RO in a different service connection claim than a claim for service connection for a heart disability. The Board notes that within the VA benefits system, the Board is the final trier of fact and is not bound by prior RO factual determinations. See McBurney v. Shinseki, 23 Vet. App. 136, 139 (2009). Additionally, the law of the case doctrine makes an exception for clear error. See Chisem v. Brown, 8 Vet. App. 374, 375 (1995). After reviewing the Veteran’s service treatment and personnel records, as well as all post-service lay and medical evidence, the Board finds that the record does not show that the Veteran served in the Republic of Vietnam during his active duty service in contradiction to the May 1995 rating decision’s finding. Accordingly, as the second element of service connection, namely, an in-service incurrence of an event, injury, or disease related to the Veteran’s IHD, to include on a presumptive basis, is not met, the benefit of the doubt doctrine does not apply, and the appellant’s claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel