Citation Nr: 1805094	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  13-36 269	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for a heart disability, claimed as coronary artery disease (CAD)/ischemic heart disease (IHD).


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Hughes, Counsel

INTRODUCTION

The Veteran served on active duty from June 1965 to June 1967.

This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court).  The case was originally before the Board on appeal from a July 2012 rating decision of the Sioux Falls, South Dakota, Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (RO/AOJ). 

In a July 2015 decision, the Board reopened and denied the matter of service connection for a heart disability.  The Veteran appealed that decision to the Court.  In April 2016, the Court issued an order vacating the July 2015 Board decision with respect to the denial of service connection for a heart disability (the Court did not disturb the portion of the Board decision which reopened the claim of service connection for a heart disability), and remanded that matter for readjudication consistent with the instructions outlined in the April 2016 Joint Motion for Partial Remand (Joint Motion) by the parties.

In July 2016 and April 2017, the Board remanded this case to the RO for additional development necessary to ensure compliance with the terms of the April 2016 Joint Motion.


FINDINGS OF FACT

1.  The Veteran did not have service in Vietnam.

2.  The Veteran served in Thailand; exposure to herbicides/Agent Orange is not verified and may not be presumed. 

3.  CAD/IHD did not have its clinical onset during service, nor did a cardiovascular disorder manifest within one year after discharge from service (or until many years thereafter), and there is no such evidence linking it to service, to include herbicide exposure.


CONCLUSION OF LAW

CAD/IHD was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service.  38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

With respect to the issues addressed herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

As noted in the Introduction, the Board remanded this matter in July 2016 and April 2017 for additional development consisting of a search for records to determine the proximity of the Veteran's living quarters at Camp Friendship to the base perimeter at Korat Air Base in Thailand by the Joint Services Records Research Center (JSRRC).  The Joint Motion suggested that that the JSRRC's prior response may have been limited by the fact that the "JSRRC may not have been aware [of the map and photograph submitted by Appellant which show the proximity of Camp Friendship to Korat's base perimeter]."  As a result, the AOJ was instructed that this development request to JSRRC be accompanied by (1) the map submitted by the Veteran showing the proximity of Camp Friendship to the Korat Royal Thai Air Force Base perimeter, and, (2) the February 2014 Statement of Accredited Representative detailing the arguments in support of the Veteran's claim of Agent Orange exposure during his military service in Thailand and (3) the December 1971 Army Field Manual, Tactical Employment of Herbicides, indicating that a 500 meter buffer distance should be maintained (for spraying herbicides) to avoid damage to desirable vegetation.

A July 2017 Memorandum notes that the development requested could not be sent to JSRRC because "the JSRRC portal does not allow for attachments."  Accordingly, it was determined that the development would be accomplished "by sending to the Air Force Historical Research Agency (AFHRA)" which allows for attachments.  It was noted that "[e]ven though the Veteran served in the Army he was stationed at Korat Air Base which the AFHRA would have extensive knowledge of."  

As discussed in detail in the decision herein, AOJ provided the map, December 1971 Army Field Manual and argument in support of the Veteran's claim to AFHRA and requested verification of the Veteran's Agent Orange exposure.  A July 2017 electronic mail response from an Archivist at AFHRA includes the determination that "[t]here is no argument in support of Agent Orange or commercial grade herbicide exposure in this claim" because only time herbicides were used at Korat Royal Thai Air Force Base were periods that do not coincide with the Veteran's service at that installation.  An August 2015 Memorandum from the Air Force to the Department of Veterans Affairs was included which further detailed the use of herbicides at USAF Thailand air bases during the Vietnam era.  A July 2017 Memorandum to the file reflected the development efforts and concluded that further herbicide development was not warranted as the Veteran's herbicide exposure had not been corroborated.  The matter was readjudicated in an October 2017 Supplemental Statement of the Case (SSOC).

After review of the development accomplished by the AOJ, the Board concludes there has been substantial compliance with the July 2016 and April 2017 remand instructions (and the instructions of the April 2016 Joint Motion contemplated by those remands) and no further action is necessary.  See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)).

Legal Criteria, Factual Background, and Analysis

The Veteran asserts that he is entitled to service connection for a heart disability due to exposure to herbicides while stationed in Thailand at the Korat Air Force Base with the 1st Signal Brigade for the period ending April 30, 1967.  He reported that he worked in a small communications base (as a communications specialist) which was located near the perimeter.  He further stated that he lived in a hooch near the perimeter and did activities and physical training near the perimeter.

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110.  Generally, the evidence 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.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

Certain chronic diseases (including cardiovascular disease) may be service-connected on a presumptive basis if manifested to a compensable degree in a specific period of time postservice (one year for cardiovascular disease).  38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  Section 1112 does not apply in this case, as the medical evidence does not show, and the Veteran does not contend, that his cardiovascular disease was diagnosed in service or within one year thereafter. 

However, if a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more, the Veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service.  38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e).  Cardiovascular disease (including CAD/IHD) is an enumerated disease.

Review of the record does not show that the Veteran served in the Republic of Vietnam, nor does he argue such service.  A December 2011 response from the service department shows that "there is no evidence in this Veteran's file to substantiate any service in the Republic of Vietnam" and there is "no records of exposure to herbicides."  A review of the Veteran's service personnel records does not show he served in the Republic of Vietnam.  Therefore, not having served in the Republic of Vietnam, he is not presumed to have been exposed to an herbicide agent in Vietnam.  38 U.S.C. § 1116(f).

The Veteran instead contends that he was exposed to herbicides while stationed in Thailand at Korat Air Force Base.  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 Korat 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.  This applies to Veterans who served during the Vietnam era, which spans from February 28, 1961 to May 7, 1975.  Id.  

The Veteran's service personnel records, including his DD Form 214, document his service with the 1st Signal Brigade, US Army Strategic Communications Command (USASTRATCOM), at Camp Friendship in Korat, Thailand.  The Veteran's military occupational specialty was a communications specialist.  The Veteran does not contend that he performed security patrols or other military police-related duties along the perimeter.  Instead, he has indicated that the communications base where he worked was located near the perimeter, and alternatively that he lived near the perimeter and performed activities including physical training near the perimeter.

A Memorandum for the Record prepared by VA Compensation and Pension Services reflects that while a review of Project CHECO Southeast Asia Report: Base Defense in Thailand Report does not report the use of tactical herbicides on allied bases in Thailand, it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters.  Therefore, if a Veteran's MOS or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides.  Security police units were known to have walked the perimeters, especially dog handlers.  However, as noted above, there are no records to show that the same tactical herbicides used in Vietnam were used in Thailand.

Moreover, the Compensation and Pension Services Memorandum notes that, in Vietnam, tactical herbicides were aerially applied by UC-123 aircraft in Operation RANCH HAND or by helicopters under the control of the U.S. Army Chemical Corps.  Base Civil Engineers were not permitted to purchase or apply tactical herbicides.  There are no records of tactical herbicide spraying by RANCH HAND or Army Chemical Corps aircraft in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand.  However, there are records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from August 30 through September 16, 1963 and from 14 -17 October 1966.  The 1966 missions involved the spraying of malathion insecticide for the "control of malaria carrying mosquitoes."  These facts are not sufficient to establish tactical herbicide exposure for any Veteran based solely on service in Thailand.

In addition, the Memorandum emphasizes that, if the veteran's claim is based on general herbicide use within the base, such as small scale brush or weed clearing activity along the flight line or around living quarters, there are no records of such activity involving tactical herbicides only the commercial herbicides that would have been approved by the Armed Forces Pest Control Board and sprayed under the control of the Base Civil Engineer.  

A July 2013 response from JSRRC indicates that they "cannot document or verify that [the Veteran] or personnel assigned to the unit were exposed to Agent Orange or other tactical herbicides while serving in Thailand or that his duties required him to be on or near the perimeter of the base."  The response further indicates that they do not maintain unit records for Radio Relay Units, and that such records may be requested by writing to the Commander of the Army.  

In a subsequent July 2013 response to a request for assistance, the Commander of the Army INSCOM indicates that they do not hold records of Signal Corps units such as the Veteran's.

In January 2013, VA received a hand drawn map submitted by the Veteran showing the proximity of Korat Royal Thai Air Force Base and Camp Friendship.  

A February 2014 Statement of Accredited Representative is accompanied by a December 1971 Army Field Manual, Tactical Employment of Herbicides, which indicates that a 500 meter buffer distance should be maintained (for spraying herbicides) to avoid damage to desirable vegetation.

In February 2014, VA also received internet search results consisting of photographs of the remote relay station where the Veteran worked, Camp Friendship, "hootches," showers, and the perimeter.

In response to the July 2016 Board remand for further development, an October 2016 Memorandum from the AOJ notes that "the Air Force Historical Research Agency [AFHRA] has issued a statement 'Agent Orange was never used as a vegetation control agent on any USAF Thailand installation at any time.'  JSRRC refers to the Air Force Historical Research Agency when verifying Agent Orange Exposure on US Air Force Bases in Thailand.  We cannot concede Agent Orange Exposure."  

In response to the April 2017 Board remand for further development, a July 2017 electronic mail response from an Archivist at AFHRA determined that "[t]here is no argument in support of Agent Orange or commercial grade herbicide exposure in this claim."  The Archivist explained:

As noted below, no tactical herbicides were ever used at any USAF installation in Thailand at any time for any housekeeping functions such as vegetation control.  The attached letter addresses this position.  It also notes that commercial grade herbicides were used at some USAF installations at sometimes.  However, the statement "Compensation and Pension Service (C&P) has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand..." is misleading and prone to erroneous conclusions, such as in this case.  Since the C&P has never done one scrap of research and made their determination outside of any documentary evidence, only using broad and general statements like the below, false conclusions have become a part of VA policy that the USAF does not support, endorse, or give any credence.  Therefore, the USAF utterly rejects their blanket conclusion and invites C&P to do actual documentary research.  Until then, it is requested that the VA should, instead, ask the USAF when commercial grade herbicides WERE used at a specific USAF installation in Thailand (the list of bases and dates of commercial grade herbicide application has been provided to the VA many times before).  

What we can agree on is that Korat Royal Thai Air Force Base, Thailand, did use commercial grade herbicides during two periods of time, April through December 1972 and October through December 1973, along its perimeter fence line.  In this specific case, the veteran was at the Korat RTAFB area from July 1966 through June 1967, FIVE YEARS BEFORE ANY HERBICIDES WERE UTILIZED AT KORAT.  [Emphasis in original]  So, in summary, this is no supporting historical data to support this claim.  Therefore, it does not matter how close Camp Friendship was to the base perimeter at Korat in 1966 and 1967, the absence of herbicides pre-empts any conclusions such a map can provide.  I have attached the only map I have found in our holdings of Camp Friendship near Korat, but I repeat in the strongest possible terms that it is not evidence for 1966 and 1967, but only for 1972 and 1973.  There is no argument in support of Agent Orange or commercial grade herbicide exposure in this claim.

Similarly, a July 2017 Memorandum from the AOJ refers to JSRRC and AFHRA research and findings and concludes that "[t]he veteran's herbicide exposure has not been corroborated and therefore, no further herbicide development should be conducted." 

The Board acknowledges the Veteran's statements and testimony alleging his proximity to the perimeter, the maps he submitted in which he alleges his proximity to the perimeter, and his representative's statement citing an Army Tactical Employment of Herbicides manual indicating that a 500 meter buffer distance should be maintained (for spraying herbicides) to avoid damage to desirable vegetation.  However, as noted above, the Veteran's service in Thailand was 5 years prior to the use of herbicides at Korat, according to the AFHRA.  Even assuming that herbicides were used at Korat while the Veteran was stationed there, the preponderance of the evidence is against a finding that the Veteran's duties required him to regularly serve near the base perimeter.  Notably, special consideration is not intended to be conferred to those who occasionally entered the perimeter area, otherwise no recitation of duties or specific military occupational specialty would be necessary.  The Veteran's military occupational specialty and his service personnel records do not show that duties required him to regularly serve near the base perimeter.

The Board notes that in support of his claim the Veteran has also submitted a citation of another Board decision granting service connection based on a Veteran's proximity to the perimeter.  38 C.F.R. § 20.1303 instructs that previously issued Board decision are not precedent; however, they "can be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.'  Here, the case cited by the Veteran involves a military occupational specialty different than the Veteran's.  In essence, there were different facts than those presented in the instant appeal.  Accordingly, the Board finds more probative the findings noted above by JSRRC and AFHRA, which were unable to find any evidence substantiating the Veteran's allegations of herbicide exposure while in Thailand.  Moreover, AFHRA determined that it does not matter how close Camp Friendship was to the base perimeter at Korat at the time of the Veteran's service in 1966 and 1967 because commercial grade herbicides were first used at Korat Royal Thai Air Force Base, Thailand, in 1972, 5 years after his military service.  

Accordingly, the Board is unable to find that the Veteran was exposed to herbicides during his service in Thailand.

Notwithstanding the foregoing, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d). 

It is not in dispute that the Veteran has CAD, as such disability has been shown to be diagnosed since 2004.  There is however no evidence that such disability was manifested in service.  His service treatment records are silent as to complaints, symptoms, or diagnosis of such disease.  Likewise, there is no evidence that a cardiovascular disability was manifested in the first year following the Veteran's discharge from service in June 1967 or that the Veteran has experienced continuous cardiovascular symptoms since service (nor is it so alleged).  Notably, the Veteran testified that approximately 10 years after discharge he began experiencing heart problems.  Consequently, service connection for a heart disability on the basis that such disease became manifest in service, and persisted, or on a presumptive basis (for a cardiovascular disability as a chronic disease under 38 U.S.C. § 1112) or on the basis of continuity of symptomatology is not warranted.

Furthermore, there is no medical evidence pertaining to a heart disability that includes an opinion somehow directly linking such disability to the Veteran's service.  The Veteran's theory of entitlement to service connection for such disability appears to be strictly one based on exposure to Agent Orange in Thailand.

The Board has considered the Veteran's statements alleging that his heart disability is related to his service.  However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), whether or not CAD/IHD (current disability) may be related to service that ended nearly 37 years prior to the initial diagnosis of CAD/IHD is a medical question, and requires medical expertise.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).  The Veteran is a layperson and has not presented any competent (medical opinion/textual) evidence in support of his theory that such is related to service.  Consequently, his opinion in this matter is not competent evidence. 

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for CAD/IHD.  The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).



ORDER

Entitlement to service connection for a heart disability, to include IHD/CAD, is denied.




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


Department of Veterans Affairs