Citation Nr: 18115026 Decision Date: 06/28/18 Archive Date: 06/28/18 DOCKET NO. 15-06 667 DATE: June 28, 2018 ORDER Entitlement to service connection for a cardiovascular disability, diagnosed as coronary artery disease, to include as due to exposure to tactical herbicidal agents, is denied. FINDING OF FACT The most probative evidence of record does not establish that the Veteran was exposed tactical herbicidal agents during his active service and his cardiovascular disability, diagnosed as coronary artery disease, was not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between a cardiovascular disability and his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cardiovascular disability, diagnosed as coronary artery disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1968 to August 1972. Additional evidence, in the form of photographs, submitted by the Veteran, were associated with the record in April 2018, subsequent to the December 2014, statement of the case issued for the appeal herein. In this regard, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests Agency of Original Jurisdiction (AOJ) consideration. See VBA Fast Letter 14-02. Here, the Veteran’s substantive appeal was filed after February 2, 2013, and as described above, the record reflects the additional evidence was submitted by the Veteran, thus, a remand for the additional evidence to be considered by the AOJ is not warranted. Review of the record reflects an April 1989 rating decision denied service connection for a pilonidal cyst and the Veteran submitted a timely April 1998 notice of disagreement as to this denial. A May 15, 1998 a statement of the case was issued for this claim, and the record reflects a completed VA Form 9, substantive appeal, dated in May 23, 1989, but not date stamped, is of record. No further action appears to have been taken as to this claim, including as being certified to the Board. As such, the Board will not accept jurisdiction over it at this time, but it is referred to the AOJ for appropriation action, and it will be the subject of a subsequent Board decision, if otherwise in order. 38 C.F.R. § 19.9 (b) (2017). 1. Entitlement to service connection for a cardiovascular disability As set forth in his April 2018 testimony and other statements, the Veteran contends his coronary artery disease is due to exposure to dioxin-based tactical chemical herbicides (colloquially known as Agent Orange) during the Vietnam era while serving in Thailand. Specifically, he testified that he was stationed at Nakhon Phanom, Thailand from May 1971 to May 1972. He testified that he worked in administration but he had to travel from the barracks to the administrative building, and the road to his worksite was along the base perimeter. He also testified that the base recreational area was also near the perimeter line as was his commander’s living quarters, and that on many occasions he had to go and get documents signed from his commander, bringing him in proximity to the base perimeter. He also testified that to travel outside of the base to the town, he had to go along the perimeter. Additionally, in a July 2015 statement, submitted on a substantive appeal form, the Veteran stated, in part, that many large plots of ground on the base were sprayed with Agent Orange. Thus, the Veteran believes that his duties exposed him to tactical herbicides and thus service connection is warranted for coronary artery disease. In the alterative, including in his October 2013 notice of disagreement, the Veteran stated, in part, that during his separation examination in 1972, he reported pressure in his chest upon exertion and according to his family doctor, this was an initial symptom of ischemic heart disease. However, in April 2018 testimony, while he stated he believed his heart disability was related to his active service, he also stated, in part, that he believed his heart disability began after service. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Additionally, VA established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. M21-1, Part IV, Subpart ii, 1.H.5.b. (November 12, 2015); Compensation and Pension Bulletin, May 2010. VA 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.” Consideration of herbicide exposure on a presumptive basis is extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam Era when stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a Veteran served on one of those air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialist (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) (2017) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 U.S.C. § 1116 (a) (2012); 38 C.F.R. § 3.309 (e) (2017). The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i). In addition, certain chronic diseases, such arteriosclerosis and cardiovascular-renal disease, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Turning to the first element of service connection, the existence of a present disability, the Board finds that the evidence of record confirms the Veteran has a diagnosis of coronary artery disease. Specifically, a September 2013 ischemic heart disease disability benefits questionnaire found that the Veteran had ischemic heart disease as he was diagnosed with coronary artery disease. A diagnosis of coronary artery disease was also reflected in the Veteran’s private medical records. As the Veteran is acknowledged to have a diagnosis of coronary artery disease, the issue before the Board becomes whether such this disability is as a result of his active service. The Veteran’s service records document that he served in Thailand during the Vietnam Era. Specifically, service records document the Veteran was an administrative specialist at the Nakhon Phanom Royal Thai Air Force Base in May 1971. Thus, while the Veteran’s service records do not contain information concerning exposure to tactical herbicide agents, they do expressly establish that he served at the Nakhon Phanom Royal Thai Air Force Base. However, as described above, the Veteran did not have a security related MOS. The record also does not include evidence of daily work duties, performance evaluation reports, or other credible evidence of duties near the base perimeter. The Board acknowledges the Veteran’s statements that his occupational duties and recreational activities were proximate to the base perimeter. However, the Veteran’s duties as an administrative specialist do not constitute the type of duties encompassing regular and frequent proximity to the base perimeter required to meet the presumption of herbicide exposure. Specifically, the Veteran’s service records reflect while stationed at Nakhon Phanom Royal Thai Air Force Base, he served as Non-Commissioned Officer in Charge (NCOIC) of the Special Orders branch and his duties consisted of reviewing, controlling preparation for authentication, and distribution of all headquarters 56th Combat Support Group special orders. Further, in spite of the Veteran’s suggestions otherwise, all evidence shows that any herbicide usage in Thailand was on the base perimeters, and not within the bases or on the roads. As for the Veteran’s contentions that due to the location of the recreational areas, the location of his barracks to administrative building, the location of his commander’s living quarters, as well his contention that crossing the perimeter or traveling on the road near the perimeter, would constitute tactical herbicide exposure, the Board notes that everyone within the base would have done the same at one time or the other in order engage in recreational activities, traverse the base, or to enter or leave the base, and so this clearly cannot be the intent of provisions regarding nearness to the perimeter found in the provisions of M21-1, Part IV, Subpart ii, 1.H.5.b. As to the Veteran’s contention that many large plots of ground on the base were sprayed with Agent Orange, he has not provided any support for this allegation, and as discussed above, all evidence shows that any herbicide usage in Thailand was on the base perimeters. His assertion is not sufficient evidence alone to establish that such an event actually occurred during service. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additional evidence submitted by the Veteran includes an October 2013 internet printout from the VA website with information regarding Agent Orange exposure in Thailand. However, while the October 2013 internet printout discussed herbicide use in Thailand, it does not establish that the Veteran was personally exposed to herbicides during his period of active service. Additionally, of record are photographs associated with record in April 2018, which the Veteran’s representative stated at the April 2018 hearing illustrated the Veteran’s contention of activities taking place near the base perimeter. However, the photographs are of limited quality and are not labeled making it difficult to ascertain when and where they were taken, which lessens their probative value. Moreover, as noted above, the Veteran has essentially indicated that portions of the base were near the perimeter such as the recreation area, however, as discussed above, in providing for presumption service connection based on service in Thailand, VA specifically did not extend the presumption to all service-members who served there (e.g. traveled through the gates to enter the base, or engaged in recreational activities), but instead found it should be provided to those members whose duties actually placed them on the perimeter where they would come in contact with sprayed areas. Additionally, in an October 2013 memorandum, VA determined that the information required to corroborate the Veteran’s exposure to tactical herbicides while stationed at Nakhon Phanom Royal Thai Air Force Base was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and insufficient to allow for meaningful research of the Navy or National Archives and Records Administration (NARA) records. The memorandum noted the procedures taken by VA to attempt to get the information but VA determined that all efforts to obtain the needed information had been exhausted and any further attempts would be futile. Specifically, VA noted that as the Veteran was an administrative specialist there is no evidence of regular contact with the base perimeter to concede possible exposure to Agent Orange in Thailand and his performance report indicated he was the NCOIC of the special order branch but did not mention any additional duties. In sum, the Board has considered the entire record, but found insufficient evidence to concede tactical herbicide exposure by virtue of his service at Nakhon Phanom Royal Thai Air Force Base. As exposure is not conceded, presumptive service connection based on tactical herbicide exposure is denied. Next, the Board has also considered whether service connection for coronary artery disease is warranted on a nonpresumptive direct incurrence basis but finds that it is not. A review of the Veteran’s service treatment records does not reveal a diagnosis related to a heart or cardiovascular disability. Indeed, a February 1972 Report of Medical Examination, conducted in conjunction with separation from service, found the Veteran’s heart was clinically normal upon examination, although a notation stated the Veteran had pressure in the chest when he overexerted himself in exercise, which was not incapacitating, with no complications and no sequelae. Further, in a February 1972 Report of Medical History completed in conjunction with separation from service, the Veteran checked yes with respect to a question regarding the existence of pain or pressure in the chest. Such document provided the same notation as discussed above in the examination report. Thus, the Board finds that the element of in-service disease or injury, other than exposure to tactical herbicidal agents, is met. However, the Board finds, for the reasons noted below, that the third requirement for service connection, competent evidence of a nexus between a current coronary artery disease, and an in-service disease or injury, has not been met. In this regard, a September 2013 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of such, the September 2013 VA examiner stated the instance of pressure in the chest while over exerting 40 plus years ago when in the service was not incapacitating and not related to heart disease, nor did it or its treatment cause the Veteran’s mild to moderate coronary artery disease. The September 2013 VA examiner explained the reasons for his conclusions based on review of the record, to include the Veteran’s report of pain or pressure in the chest during his separation from service in 1972. Thus, the November 2016 VA examiner's opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. 295 (2008). Further, consistent with the September 2013 VA examiner’s opinion are the Veteran’s medical records which did not note a diagnosis of coronary artery disease until decades after his separation from service. In this regard, a July 1987 VA treatment record noted, in part, the Veteran was negative for heart disease. Further, the Veteran’s private medical records noted he was diagnosed with coronary artery disease in September 2007. Similarly, the Veteran, in April 2018 testimony, reported he was diagnosed with coronary artery disease in 2007. This long gap between his discharge from service and the earliest clinical evidence of coronary artery disease is considered to be evidence that weighs against his claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Additionally, as discussed above, in April 2018 testimony, while the Veteran stated, in part, he believed his heart disability was related to his active service, he also stated, that he believed his heart disability began after service. Moreover, as described above, the Veteran, in his October 2013 notice of disagreement, stated, in part, during his separation examination in 1972, he reported pressure in his chest upon exertion and according to his family doctor, this was an initial symptom of ischemic heart disease; however, to the extent the Veteran proffers this information as a positive nexus between his coronary artery disease and service, the Board finds that a layperson’s account of what a medical provider purportedly said, filtered as it was through a layman’s sensibilities, is simply too attenuated and inherently unreliable to hold any probative value. Robinette v. Brown, 8 Vet. App. 69 (1995). Thus, the evidence is also against a finding that the Veteran had a heart disability under 38 U.S.C. § 1103 (3) or 38 C.F.R. § 3.309 which manifested to a compensable degree, or at all, within one year after separation from service, and service connection based on the provisions for chronic symptoms in service, continuous symptoms since service, or demonstrated etiological relationship to service, is not warranted. While the Veteran believes his coronary artery disease is related to an in-service injury, event, or disease, including as documented by his report of pain or pressure in the chest during his separation from service in 1972, he has not been shown to have the requisite medical knowledge or expertise to be deemed competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the September 2013 VA examiner’s opinion. In sum, the Board has reviewed the evidence of record, as well as the pertinent law and regulations, but finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a cardiovascular disability. Thus, service connection for a cardiovascular disability, diagnosed as coronary artery disease, is denied. In reaching the above conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of   the evidence is against the Veteran’s claim for service connection for a cardiovascular disability, that doctrine is not for application. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel