Citation Nr: 19191320 Decision Date: 12/05/19 Archive Date: 12/04/19 DOCKET NO. 17-22 608 DATE: December 5, 2019 ORDER Service connection for ischemic heart disease is denied. FINDING OF FACT The Veteran was not exposed to herbicide agents during his tour of duty in Thailand. Ischemic heart disease was not incurred in service and is not related to service. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to November 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Service connection for ischemic heart disease. The Veteran contends that his ischemic heart disease is related to exposure to herbicide agents during his service in Thailand. Specifically, the Veteran testified in the October 2019 Board hearing that in his job as a plumber, he cleaned the equipment that was used to spray Agent Orange. He further testified that he lived in open barracks so if there was any Agent Orange in the air, he would have been exposed to it. Finally, he reported going outside base to the little towns. The Veteran does not contend, and the evidence does not support a contention, that heart disease manifested in service or is otherwise related to service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA has established a procedure for verifying a veteran’s exposure to herbicide agents (i.e. Agent Orange) in Thailand during the Vietnam Era. See VA Adjudication Procedures Manual, M21-1, Part IV.ii.1.H.5.b (herein M21-1). The M21-1 states that “Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases.” Under the procedures outlined in the M21-1, if a Veteran served at certain Royal Thai Air Force Bases (RTAFBs), to include U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, during the Vietnam Era as an Air Force 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 VA will “concede herbicide exposure on a direct/facts-found basis.” M21-1, Part IV, Subpart ii. 1.H.5.a. The M21-1 is not binding on the Board. 38 C.F.R. § 20.105. When relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses. Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). If after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. In this case the Board finds that reliance on the M21-1 provisions is appropriate as these provisions would be more favorable to the Veteran than not relying upon them. In its analysis below, the Board considers other ways the Veteran asserts he was exposed than those specified in the M21-1. Here, the Board finds the preponderance of the competent evidence is against the Veteran’s exposure to herbicide agents in service. First, the Veteran denies that he went to the perimeter of the bases. He stated he did not know of any areas that were defoliated, which indicates either that areas were not defoliated, or that the Veteran did not visit those areas. Although the Veteran did testify that he cleaned equipment used to spray Agent Orange, he also reported he did not know if he ever came in direct contact or not. When asked to verify the Veteran’s exposure to herbicide agents in Thailand, the United States Joint Services Records and Research Center (JSRRC) stated that it could not verify such exposure. The JSRRC explained that it reviewed and maintains a copy of the U.S. Air Force Historical Research Agency memorandum for the Department of Veterans Affairs dated August 11, 2015. The memorandum concludes that “… no documentation or evidence has been found in the holding of the Historical Research Agency showing that tactical herbicides, such as Agent Orange, were ever used on any USAF installation in Thailand for vegetation control during the Vietnam era.” However, the Compensation Service has acknowledged that there was “… some evidence that the herbicides used on the Thailand Base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.” Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). The JSRRC’s memorandum is afforded little probative weight. The Veteran’s statements regarding herbicide exposure are not competent or probative evidence. First, they are equivocal, in that the Veteran “did not know” if he came in contact with the herbicide agents, and he stated “if” the herbicide agents were in the air, he was exposed. These statements are too speculative to have significant probative weight. Second, the record does not show that the Veteran has training in recognizing what constitutes an herbicide agent as opposed to other chemicals that may have been sprayed, therefore, their competency is in question. Additionally, the Veteran asserted that he may have been exposed to herbicide agents while working on equipment that was used to spray herbicide agents. The Veteran is not competent to state that the aircraft he worked on were contaminated by an herbicide agent as defined by VA regulation. An herbicide agent is specifically defined as “2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.” 38 C.F.R. § 3.307(a)(6). In this case, he has professed no specialized ability to detect herbicide agents as defined by VA regulation in the environment, outside of labeled containers, and his assertions of exposure are essentially speculative. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). His assertions regarding possible herbicide agent exposure while in Thailand are not competent evidence. The Board concludes that the Veteran in this case was not exposed to herbicide agents. Accordingly, service connection is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.