Citation Nr: 18130531 Decision Date: 08/29/18 Archive Date: 08/29/18 DOCKET NO. 13-33 068 DATE: August 29, 2018 ORDER Entitlement to service connection for coronary artery disease is denied. Entitlement to service connection for chronic lymphocytic leukemia is denied. FINDINGS OF FACT 1. The Veteran did not have active military service in the Republic of Vietnam during the Vietnam era. 2. The Veteran was not exposed to herbicide agents (Agent Orange) during active service in Thailand. 3. The Veteran’s coronary artery disease and chronic lymphocytic leukemia did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disabilities are not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for coronary artery disease have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for chronic lymphocytic leukemia have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as cardiovascular-renal disease and malignant tumors (cancer). See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA regulations provide that, if a veteran was exposed to an herbicide agent (such as Agent Orange) during active service, presumptive service connection is warranted for ischemic heart disease and chronic B-cell leukemias (including chronic lymphocytic leukemia). Presumptive service connection for disorders as a result of herbicide agent exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). The governing law provides that a “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent [Agent Orange] . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f). VA regulations define that “service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii). The Veteran claims entitlement to service connection for coronary artery disease and chronic lymphocytic leukemia. He specifically claims he has his disability as a result of Agent Orange exposure during service. Private medical records clearly establish that the Veteran was diagnosed with both coronary artery disease and chronic lymphocytic leukemia beginning in approximately 2015, which is almost half a century after he separated from service. There is no evidence which supports that either disability became manifest during service or within the first year after the Veteran separated from service in 1968. Service connection is not warranted on either basis. Rather, the Veteran's entire claim for service connection is that he was exposed to Agent Orange during active service and warrants presumptive service connection for the claimed disabilities under 38 C.F.R. § 3.309(e). In May 2011, the Veteran filed the claim for service connection which ultimately resulted in the present appeal. He specifically indicated that he was claiming service connection for a disability related to Agent Orange exposure. The Veteran's discharge papers, DD 214, show that he served on active duty from August 1964 to August 1968 in the Air Force as a “fuel handler specialist.” Among his awards noted are the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. These two medals do not of themselves confirm service in the Republic of Vietnam, as they were also awarded to personnel, stationed outside of Vietnam who supported operations in Vietnam during the war. Air Force personnel stationed in Thailand, as is the case of the Veteran, were awarded these medals. In his February 2012 Notice of Disagreement, the Veteran reported that he was stationed at Ubon Royal Thai Air Force Base in Thailand. His service personnel records verify that he served in Ubon, Thailand from April 1966 to April 1967. In his November 2013 substantive appeal the Veteran stated that while VA “stated my duties did not require me to go near the perimeter as an aircraft refueler, however the aircraft I refueled I would think could have been exposed to Agent Orange and have residue on the skin or outside of the aircraft. I also helped with pilot rescue and unloading jet fuel off of train tank cars which required me to work off base in area I would think were sprayed with Agent Orange . . .” In June 2015 private medical record, the physician noted in the history section of the report that several “minutes are spent discussing his claim at the VA he does have chronic leukemia he feels is from agent orange that he was exposed to in Vietnam and I would tend to agree is pursuing litigation.” The Board notes that this statement in the history section of this record implies that the Veteran served in Vietnam, which he did not; without such service in Vietnam he is not presumed to have been exposed to Agent Orange during service. In an August 2015 statement, the Veteran acknowledged his duties as an aviation fuel specialist but now asserted that the flight line and areas traveled on base to refuel aircraft were on, or near the base perimeter. He further reported that vegetation near the flight line and fuel lab was brown and dead, implying that herbicides were being used well in the perimeter of the base. He further asserted that any Agent Orange sprayed on the perimeter would have washed in to the base during seasons of heavy rain. He further asserted that the perimeter was not off limits and that he would walk or jog on the perimeter of the base. The Veteran has also submitted through his attorney multiple copies of several documents including a February 1973 military report about Base Defense in Thailand. In a passing reference this document indicates that herbicides were employed to assist in the task of vegetation control, and that use was limited by such factors as rules of engagement and supply problems. Further, this report did not name specific locations, or periods of use. Other documents submitted were related to other Veterans stationed at different bases. A June 2005 Air Force letter to a Congressman noted that Agent Orange was not stored in Thailand and none of the C-123 aircraft used in spray operations were based in Thailand. Some may have stopped en route to missions over Laos, but specific bases were not indicated. Service personnel records obtained, contained copies of the Veteran's performance reports for the period that he was stationed at Ubon, Thailand. These records confirm that he was an aviation fuel specialist whose duties at various times included being a refueling unit operator, refueling aircraft, and being the fuel lab technician. These records to not show duties associated with the perimeter of the base. A response from the service department indicated that research did not show that Agent Orange was used at the Ubon Air Force base during the time the Veteran was stationed there, and that there was actually no documentation that Agent Orange was used at USAF installations in Thailand at any point during the Vietnam era. VA Manual M21-1 Part IV, Subpart ii.1.H.3, provides guidance on developing claims related to Agent Orange exposure through regular and repeated duties flying on, or maintaining, contaminated former Operation Ranch Hand (ORH) C-123 aircraft, which were used to spray Agent Orange in Vietnam. While there is some evidence that some of the aircraft involved in operations over Laos stopped over at Air Force bases in Thailand, there is no evidence that they specifically stopped at Ubon, where the Veteran was stationed, and he has not claimed he ever fueled or serviced these aircraft on a regular and repeated basis. M21-1 Part IV, Subpart ii.1.H.5 provides guidance on developing claims related to Agent Orange exposure in Thailand during the Vietnam era. This guidance requires evidence of Air Force duties as a security police or other security duties on the perimeter or being near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. The evidence of record including the Veteran's service personnel records and performance evaluation reports does not establish such duties to concede Agent Orange exposure. Further development with the service department (JSRRC) has also indicated that Agent Orange was not used at Ubon Air Base during the time that the Veteran was stationed there. The preponderance of the evidence is against the Veteran's claims for service connection. Despite his report to his private, physician, the Veteran did not serve in Vietnam, so he cannot be presumed to have been exposed to Agent Orange during service. His assertions of exposure during the period he was stationed at Ubon Air Base in Thailand have changed. However, after development, the evidence does not establish that the Veteran's duties involved duties on the perimeter of the base and verification from JSRRC also does not show use of Agent Orange on the base during the period that the Veteran was stationed there. Exposure to Agent Orange cannot be conceded and the evidence is against a finding that the Veteran was exposed to Agent Orange during service. Accordingly, service connection for coronary artery disease and chronic lymphocytic leukemia is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Havelka, Counsel