Citation Nr: 18102875 Decision Date: 05/16/18 Archive Date: 05/16/18 DOCKET NO. 14-34 000 DATE: May 16, 2018 ORDER Entitlement to service connection for ischemic heart disease (IHD) with scars is denied. Entitlement to an initial disability rating in excess of 30 percent for chloracne is dismissed. Entitlement to an initial compensable disability rating for scars, anterior and posterior trunk is dismissed. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents during his active service. 2. IHD is not attributable to the Veteran’s active service and may not be presumed to have been incurred during such service. 3. In February 2018, prior to promulgation of a decision in the appeal, the Board received notification from the Veteran indicating that was not appealing the issues of increased ratings for chloracne and scars, anterior and posterior trunk. CONCLUSIONS OF LAW 1. The criteria for service connection for IHD are not met. 38 U.S.C. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. With respect to the chloracne and scars increased rating claims, these appeals have been withdrawn. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to June 1969, to include service in Thailand. On the September 2014 VA Form 9, the Veteran noted that he wanted a Board videoconference hearing. A February 2018 supplemental statement of the case (SSOC) addressed the issues listed in the order section above. The Veteran submitted a February 2018 VA Form 9. He marked a box stating that “I do not want an optional Board hearing.” Based on this recent statement, the Veteran’s prior request for a Board hearing is considered withdrawn. 1. Entitlement to service connection for IHD with scars The Veteran contends that his IHD is related to his active service, specifically based on exposure to herbicide agents reported to have occurred during his service in Thailand. The primary issue before the Board is whether the Veteran was exposed to herbicide agents during his active service, as such exposure would allow for presumptive service connection for IHD. Veterans are entitled to compensation from VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Certain diseases, to include IHD (which is defined to include old myocardial infarction and coronary artery disease), warrant presumptive service connection for veteran’s who have been exposed to herbicide agents during their active service. See 38 C.F.R. §§ 3.307(a), 3.309(e). Various VA treatment records and private medical records indicated that the Veteran has been diagnosed with coronary artery disease and that he had a myocardial infarction in 1999. The Veteran’s primary contention in this appeal has been that his IHD is related to his active service based on reported herbicide agent exposure in Thailand. The Veteran has not raised, and the record does not otherwise indicate entitlement based on, other theories of service connection. In this regard, with respect to direct service connection, the Veteran has not identified, and the service treatment records (STRs) do not otherwise identify, any other in-service event (beyond the reported herbicide agent exposure) that the Veteran’s IHD could be related to. With respect to the potentially applicable presumption related to chronic disease, the evidence did not show manifestations sufficient to identify the disease entity during the Veteran’s active service. See 38 C.F.R. § 3.303(b), 3.309(a). In addition, the earliest diagnosis of record of IHD/CAD appears to be in 1999, more than one year from the Veteran’s June 1969 separation from active service, and the Veteran has not asserted that IHD became manifest during that relevant time period (one year after separation from active service). See 38 C.F.R. § 3.307(a)(3). Overall, entitlement to service connection is not warranted on a direct basis or based on the presumption related to chronic disease. Accordingly, the Board will focus on the determinative issue in this appeal of whether the Veteran was exposed to herbicide agents during his active service. The Veteran’s personnel records indicated that he served in Thailand from June 1968 to June 1969. His duty title during this time period was listed as aircraft mechanic, phase inspection team member, and assistant crew chief. His organization and station of assignment was noted as the 496th Tactical Fighter Squadron at Korat Royal Thai Air Force Base (RTAFB) in Thailand. Of record is a performance report for the period March 1968 to November 1968 that listed the Veteran’s current duty as assistance crew chief, noted a location of Korat RTAFB and described his duties, all associated with servicing aircraft. As noted, the Veteran has contended that he was exposed to herbicide agents during his active service in Thailand. 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. 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 Korat and Udorn RTAFBs, 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. Unlike regulations that apply to any presence in the land area and inland waters of Vietnam, there is no presumption of exposure for service members at air bases in Thailand. Thus, the evidence must show that a service member duties or activities caused him or her to come in contact with the herbicide during handling or spraying or its residue in defoliated areas. The Veteran filed his claim for entitlement to service connection for IHD in July 2012 and noted that he was claiming this disability as related to Agent Orange or other herbicide exposure. VA treatment records included a July 2012 Agent Orange Registry exam. With respect to exposure, it was noted that the Veteran “was not involved in handling or spraying Agent Orange, not directly sprayed with Agent Orange” and that he was “[u]nsure if he was exposed to herbicides other than Agent Orange. He was in a recently sprayed area, and he did eat food or drink that could have been sprayed with Agent Orange.” In a November 2013 statement, the Veteran stated that he was “a crew chief on jet fighter aircraft stationed at Korat, Thailand from June 1969 to June 1969. During that year I also was on temporary duty to Udorn Air Base, Thailand for 1 month.” He stated that “I worked on the flight line 12 hours a day and 6 days per week. The flight line was within 20-30 feet from the runway and the perimeter of the air base” and that “[t]he Thai Army guards were stationed within 20 feet of where my aircraft was located.” He further stated that “I also would go out to the end of the runway to make a final pre-launch check of the aircraft prior to send off,” that “[t]here were no trees or brush anywhere around the runway or flight line. Defoliants were sprayed to eliminate trees, brush and weeds. It was presumed to be Agent Orange” and that “I didn’t work in a hangar. I was outside my entire shift.” In the Veteran’s February 2014 notice of disagreement (NOD), he stated that “I worked outside near the perimeter of the base in Korat, Thailand 12 hours per day, six days per week.” He stated that “I constantly worked out in the air as did dog handlers and guards near the perimeter of the base.” He also stated that “I don’t agree to the decision that I was not exposed to Agent Orange. All VA literature presumes exposure within the dates I was assigned to Korat and Udorn, Thailand.” On the February 2018 VA Form 9, the Veteran stated that IHD “is a presumptive condition of Agent Orange exposure.” He stated that “[b]ecause of my duty to airbases at Korat [and] Udorn, I was on perimeter of both bases with Flight-line Duty 12 hours a day/6 days a week.” He stated that “I have not had a VA examination for IHD, even though I have been, and continue to be, treated privately and at the VA Medical Center for this. I had a severe heart attack in May 1999 and experienced all the symptoms of IHD.” Of record is an October 2017 response from the Joint Services Records Research Center (JSRRC), which stated that: We researched the April 1968 through June 1968 and the July 1968 through December 1968 unit histories, submitted by the 388th Tactical Fighter Wing (TFW), the higher headquarters of the 469th Tactical Fighter Squadron (TFS), stationed at Korat Royal Thai Air Force Base (RTAFB), Thailand, and additional historical information available to this office. Unfortunately, the unit history does not report on [the Veteran] or unit personnel being exposed to Agent Orange, herbicides, or tactical herbicides, while performing daily duty assignments at Korat RTAFB during the specified time period. Also, the histories did not report on unit personnel’s daily assignments in proximity to the base perimeter, or the runway’s proximity to base perimeter. In addition, the histories do not document Agent Orange or tactical herbicide spraying, testing or storage at Korat RTAFB during the June 1968 through August 1968 time period. Reviewing the evidence of record, the Board finds that on a facts found basis the Veteran did not serve near the base perimeter of the Korat or Udorn RTAFBs in a manner such that he came in contact with herbicide or its residue in defoliated areas 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 Korat and Udorn RTAFBs, 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” and came in contact with herbicide or its residue. The Board has considered the Veteran’s contentions, which were outlined above. The Veteran, essentially, reported that he worked on the flight line and that the flight line was near the air base perimeter. In this regard, he generally reported in his February 2014 NOD that he “worked outside near the perimeter of the base in Korat” and on the February 2018 VA Form 9 he stated that “[b]ecause of my duty to airbases at Korat [and] Udorn, I was on perimeter of both bases with Flight-line Duty.” In the Veteran’s November 2013 statement, he provided more detail as to the flight line and the air base perimeter, as he stated that “[t]he flight line was within 20-30 feet from the runway and the perimeter of the air base” and that “[t]he Thai Army guards were stationed within 20 feet of where my aircraft was located.” Based on this specific report, it appears that the Veteran worked on the flight line and that the flight line was “within 20-30 feet” from the perimeter of the air base. 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 Veteran, however, did not report that his work duties required him to be present and near spraying operations or that his duties required entry and work in the defoliated areas of the perimeter of the air base. While he generally reported being “near the perimeter” in his February 2014 NOD and “on perimeter” in his February 2018 VA Form 9, in his more specific November 2013 statement he reported that he worked on the flight line and that the flight line was “within 20-30 feet from the runway and the perimeter of the air base.” Working 20-30 feet from the perimeter of the air base does not indicate that the Veteran would have been in contact with the air base perimeter itself, which was the area where herbicides were used, and the Board thus finds that this duty was not “near the air base perimeter” as contemplated by the relevant M21-1 provisions. The Veteran’s duties were not similar to the security occupations specifically listed in the relevant M21-1 provisions (security policeman and security patrol dog handler) that by their nature would require contact with the air base perimeter and the herbicide affected areas. Overall, the Veteran’s reported duties of working on the flight line do not prove factual exposure to the herbicide affected areas located near the air base perimeter. As such, the Board finds that the Veteran did not serve near the base perimeter of the Korat or Udorn RTAFBs and thus herbicide exposure is not conceded on a direct or facts-found basis. The Veteran also did not report that his work duties resulted in some form of specific actual contact (skin, respiratory or gastrointestinal) with any herbicides and the nature of his duties as a crew chief do not suggest that this was likely. In this regard, the July 2012 Agent Orange Registry noted that the Veteran “was not involved in handling or spraying Agent Orange, not directly sprayed with Agent Orange.” It is not credible that spraying operations would be performed in a manner to contaminate the Veteran’s food and drink. Evidence referenced that the Veteran was in areas that had been treated with defoliants, but there is no indication that such areas were near the air base perimeter or that the defoliants used were herbicide agents. See July 2012 Agent Orange Registry (stating that the Veteran “was in a recently sprayed area); November 2013 Veteran Statement (stating that “[t]here were no trees or brush anywhere around the runway or flight line. Defoliants were sprayed to eliminate trees, brush and weeds. It was presumed to be Agent Orange.” In this regard, the Veteran would not be competent to identify that a particular substance he observed was in fact an herbicide agent, as the chemical compound that triggers presumptive service connection is specifically defined by regulation and the identification of such is not something that lay persons without special training would be competent to identify. See 38 C.F.R. § 3.307(a)(6) (referencing the term “herbicide agent” as specifically meaning “2, 4-D; 2, 4, 5-T and its contaminant TCDD; cacodylic acid; and picloram”). With respect to the Veteran’s statement in the February 2014 NOD that “I constantly worked out in the air as did dog handlers and guards near the perimeter of the base” and that “[a]ll VA literature presumes exposure within the dates I was assigned to Korat and Udorn, Thailand,” the relevant M21-1 provision provides for conceding herbicide exposure on a direct/facts-found basis based on specific duties or being near the air base perimeter. Aerial exposure is not noted as a consideration and simply serving at a RTAFB during the identified time period (the Vietnam Era) is not sufficient to concede herbicide exposure on a direct/facts-found basis under the relevant M21-1 provisions. The Veteran’s duties in servicing aircraft are not consistent with entry into the defoliated areas along the perimeter. Overall, the Board finds that the Veteran did not serve near the base perimeter of Korat or Udorn RTAFB as contemplated by the relevant M21-1 provisions, 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 fact-found basis. The Board has considered the Veteran’s additional contentions. With respect to the Veteran’s statement on his February 2018 VA Form 9 that, essentially, he has had IHD that requires treatment and that he had a severe heart attack in May 1999, the Board does not dispute these facts or that he has IHD. With respect to the Veteran’s statement that he has not had a VA examination for IHD, no such VA examination is warranted in this case. As noted above, the Veteran has not identified, and STRs do not otherwise identify, any other in-service event (beyond the reported herbicide agent exposure, which the Board has found to not have occurred) that the Veteran’s IHD could be related to. As such, the evidence does not establish that an event, injury or disease occurred in service that his IHD could be related to. As such, a VA examination is not warranted in this case. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also notes that October 2017 JSRRC response covered the period of April 1968 through December 1968 for Korat RTAFB, while the Veteran was in Thailand until June 1969. It was noted that the histories did not report on unit personnel’s daily assignments in proximity to the base perimeter and it is unlikely that the histories from December 1968 to June 1969 would contain such information. Also, the Veteran has described his duties while in Thailand and the Board has not found the Veteran’s report of his work duties in servicing aircraft to be not credible. Rather, the Board has found that his reported duties did not establish that he served near the base perimeter of the Korat RTAFB in a manner such that he was exposed to herbicide. As such, it seems unlikely that a JSRRC request regarding Korat RTAFB covering the time period from December 1968 to June 1969 would produce additional evidence that would be beneficial to the Veteran’s claim. See generally Sabonis v. Brown, 6 Vet. App. 426 (1994) (stating that there was “no basis for a remand [to the Board] which would only ‘result in…unnecessarily imposing additional burdens on [VA] with no benefit flowing to the veteran’”). In addition, the Board notes that the October 2017 JSRRC response discussed only Korat RTAFB. As noted, the Veteran stated in the November 2013 statement that “I also was on temporary duty to Udorn Air Base, Thailand for 1 month.” The Veteran was not entirely clear with his discussion of Korat and Udorn RTAFBs. In this regard, in the November 2013 statement, where he described the flight line as “within 20-30 feet from the runway and the perimeter of the air base,” he did not specify which RTAFB he was talking about. In his February 2014 NOD, he stated that “I worked outside near the perimeter of the base in Korat, Thailand,” without mention of Udorn RTAFB. On the February 2018 VA Form 9, he stated that “[b]ecause of my duty to airbases at Korat [and] Udorn, I was on perimeter of both bases.” Taking the Veteran’s statements to describe his service at both Korat and Udorn RTAFB, as noted the Veteran has described his duties while in Thailand and the Board has not found the Veteran’s report of his work duties to be not credible, but rather the Board has found that his reported duties did not establish that he served near the base perimeter of Udorn RTAFB in a manner such that he was exposed to herbicide. As such, it seems unlikely that a JSRRC request regarding Udorn RTAFB would produce additional evidence that would be beneficial to the Veteran’s claim. See generally Sabonis v. Brown, 6 Vet. App. 426 (1994). In sum, the Board finds that the Veteran was not exposed to herbicide agents during his active service. The Board additionally finds that IHD is not attributable to the Veteran’s active service and may not be presumed to have been incurred during such service. As such, the Board concludes that the criteria for service connection for IHD are not met and therefore his claim must be denied. 38 U.S.C. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. Increased Rating 2. Entitlement to an initial disability rating in excess of 30 percent for chloracne 3. Entitlement to an initial compensable disability rating for scars, anterior and posterior trunk A January 2014 rating decision granted entitlement to service connection for chloracne (also claimed as eczema) and assigned a noncompensable (0 percent) disability rating, effective July 31, 2012 (noted to be the date of claim). The Veteran timely submitted a NOD as to the assigned disability rating, an August 2014 statement of the case (SOC) was issued and the Veteran timely submitted a September 2014 VA Form 9. A February 2018 rating decision assigned a 30 percent disability rating for chloracne, effective July 31, 2012. This rating was assigned based on a scar of the head, face, or neck and based on Diagnostic Code 7800. The rating decision also assigned a separate noncompensable disability rating for scars of the anterior and posterior trunk, effective July 31, 2012, based on Diagnostic Code 7805. Contemporaneous to the February 2018 rating decision, a February 2018 SSOC was issued, which addressed the chloracne and scars increased rating claims and the IHD claim. The Veteran submitted a February 2018 VA Form 9. Under a section stating “these are the issues I want to appeal to the Board,” the Veteran marked a box stating that “I have read the [SOC] and any [SSOC] I received. I am only appealing these issues” and he identified only IHD. He went on to provide an explanation as to why he thought VA decided this issue incorrectly. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 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. See 38 C.F.R. § 20.204. In the present case, the Veteran’s February 2018 VA Form 9 indicated that he was only appealing the IHD issue and not appealing the chloracne and scars increased rating claims. Accordingly, the Board does not have jurisdiction to review the appeal with respect to the chloracne and scars increased rating claims and they are dismissed. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel