Citation Nr: 18114021 Decision Date: 06/26/18 Archive Date: 06/26/18 DOCKET NO. 14-42 920 DATE: June 26, 2018 ORDER Entitlement to service connection for ischemic heart disease (IHD), to include as due to herbicide exposure, is granted. REMANDED Entitlement to service connection for hepatitis C with elevated liver enzymes is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of IHD, and he was likely exposed to herbicide agents during his active service. 2. The Veteran’s IHD has developed to a compensable degree. CONCLUSION OF LAW The criteria for service connection for IHD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to June 1976. The Veteran testified before the undersigned Veterans Law Judge in April 2018. The issues of entitlement to service connection for leukemia, to include as due to herbicide exposure; entitlement to service connection for dementia, to include as due to herbicide exposure; and entitlement to service connection for diabetes, to include as due to herbicide exposure, have been raised by the record during the Veteran’s April 2018 hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Entitlement to service connection for IHD, to include as due to herbicide exposure The Veteran claims that his IHD, diagnosed well after his active service, is due to exposure to herbicide agents during his active service in Thailand. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1). IHD is a condition associated with herbicide exposure. 38 C.F.R. § 3.309(e). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The Veteran submitted an April 2014 IHD Disability Benefits Questionnaire. The examiner noted the Veteran’s diagnosis for IHD. The Veteran’s IHD also manifested in a workload of greater than 5 METs, but not greater than 7 METs, with angina and evidence of cardiac hypertrophy or dilation. Accordingly, the Veteran’s diagnosed IHD symptomatology manifested to a degree of 10 percent or more. 38 C.F.R. § 4.104, Diagnostic Code 7005. The dispositive issue in this case is whether the Veteran was exposed to herbicides. Although veterans who served in Vietnam are presumed to have been exposed to herbicides, the Veteran did not serve in Vietnam as that term is defined in the applicable regulation. See 38 C.F.R. § 3.307(a)(6). The service personnel records do reflect, however, that the Veteran was stationed at U-Tapao Royal Thai Air Force Base (U-Tapao RATFB) from October 1974 to December 1975. See, e.g.,Military Personnel Records. There are multiple documents that provide guidance for VA in adjudicating claims of veterans claiming herbicide exposure in Thailand. The claims file contains a memorandum for the record regarding general herbicide use in Thailand during the Vietnam Era from the Compensation Service. The Compensation Service reviewed several reports, including the Project CHECO Southeast Asia Report: Base Defense in Thailand in determining whether veterans who served in Thailand were exposed to herbicides. The Compensation Service noted that the Department of Defense list of sites where tactical herbicides were used, tested, and stored revealed that limited testing of tactical herbicides was only conducted in Thailand from April 2, 1964 through September 8, 1964, near Pranburi, Thailand. The CHECO Report did not report the use of tactical herbicides on allied bases in Thailand, but it indicated sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Thus, the memorandum noted, if a veteran’s military occupational specialty (MOS) or unit was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. The memorandum provided an example of security police units as an MOS that would have worked on the perimeters. It was also noted that there were no records to show that the same tactical herbicides used in Vietnam were used in Thailand. VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H (“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. Special 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. See M21-1, Part IV.ii.1.H.5.a. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base (RTAFB) as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, herbicide exposure should be conceded on a facts-found or direct basis. See M21-1, Part IV.ii.1.H.5.b. The Veteran contends that, as a munitions maintenance specialist during his deployment to Thailand, his duties required him to work in areas of the RTAF base that had been sprayed by herbicides. See June 2014 correspondence from Veteran and April 2018 Hearing transcript. The Veteran’s military personnel records lend support to his detailed and credible descriptions of his duties. His performance appraisals from his time at U-Tapao AFB note that he was “responsible for emergency and routine repair of assigned munitions handling equipment . . . including hydraulic brake systems on [trailers].” The Veteran also assisted “in the loading and unloading of all incoming and outgoing munitions shipments” and maintained “all storage locations in a clean, orderly and safe condition.” See May 1975 and December 1975 Airman Performance Reports. The Veteran’s performance reports are consistent with his own descriptions of his duties and suggest to the Board a professional willing to offer his skills anytime and anywhere, such as on the perimeter of U-Tapao AFB which, the Veteran has credibly alleged, is where the munitions were kept. The Board finds his assertions credible and supported by contemporaneous military records. The Board notes an August 2014 VA memo in which the Joint Services Records Research Center was unable to verify or document that the Veteran was exposed to tactical herbicides in Thailand. However, based on the totality of the evidence, the weight of the evidence is at least in equipoise regarding whether his duties frequently took him near the perimeter of U-Tapao RTAFB as needed. Consequently, the Board acknowledges that the Veteran was likely exposed to herbicide agents during his service in Thailand during the Vietnam era. Id. The VA system is “veteran-friendly” and “non-adversarial.” Evans v. Shinseki, 25 Vet. App. 7, 14 (2011). Therefore, “when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin . . . or any other point, such doubt will be resolved in favor of the claimant.” 38 C.F.R. § 3.102. Applying these standards to each factual, medical and legal issue, the Board finds that the evidence establishes that the Veteran was exposed to herbicide during his active service and that his exposure to herbicide agents caused or contributed to his later development of IHD. See 38 C.F.R. § 3.309(e). The evidence is at least in equipoise on each of the factual issues with respect to the claim at issue; consequently, application of the benefit of the doubt doctrine requires the doubt be resolved in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s claim of entitlement to service connection for IHD is thus granted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.307, and 3.309(e). REASONS FOR REMAND Entitlement to service connection for hepatitis C with elevated liver enzymes is remanded. The Veteran has a current diagnosis of hepatitis C, and the Veteran contends his disability was caused by service members sharing razors during his active service overseas while stationed in Thailand. The Board cannot make a fully-informed decision on the issue of hepatitis C because no VA examiner has opined whether the Veteran’s hepatitis C was incurred during or caused by active service. Therefore, a VA examination is necessary to provide an opinion as to the nature and etiology of the Veteran’s hepatitis C. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records regarding the Veteran’s hepatitis C in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 2. After completing the above, and after any records obtained have been associated with the evidentiary record, forward the claims file to a qualified medical professional to obtain an opinion as to the nature and etiology of the Veteran’s hepatitis C. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the VA examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hepatitis C was either incurred in, or is otherwise related to, the Veteran’s active duty service. The medical professional must address the Veteran’s hepatitis C claim considering the Veteran’s allegations of sharing razors in service in Thailand. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. All opinions must be supported by a detailed rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel