Citation Nr: 20042286 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 16-23 461 DATE: June 22, 2020 ORDER Service connection for coronary artery disease (CAD) with congestive heart failure, to include as due to exposure to herbicide agents, is granted. Service connection for amyloidosis, to include as due to exposure to herbicide agents, is granted. Service connection for hypertension, to include as due to exposure to herbicide agents, is denied. Service connection for ulcerative proctitis, to include as due to exposure to herbicide agents, is denied. Service connection for hyperlipidemia is denied. FINDINGS OF FACT 1. The Veteran’s CAD is presumptively due to his exposure to herbicide agents while serving in Thailand. 2. The Veteran’s amyloidosis is presumptively due to his exposure to herbicide agents while serving in Thailand. 3. The Veteran’s hypertension was not incurred in or due to his time in service and did not manifest to a compensable degree within one year of service. 4. The Veteran’s ulcerative proctitis was not incurred in and due to his time in service. 5. Hyperlipidemia is a laboratory finding not recognized as a chronic disability under VA law for which compensation may be paid. CONCLUSIONS OF LAW 1. The criteria to establish service connection for CAD are met. 38 U.S.C.§§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(e). 2. The criteria to establish service connection for amyloidosis are met. 38 U.S.C.§§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(e). 3. The criteria to establish service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria to establish service connection for ulcerative proctitis are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria to establish service connection for hyperlipidemia are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1963 to June 1971. The Veteran died in March 2015 and at the time of his death, had pending claims to service connection for the above-mentioned conditions. The Appellant is the Veteran’s spouse. The Appellant had a hearing before the undersigned Veterans Law Judge in February 2019 in which one of the family’s friends, R.E., also testified. A transcript has been associated with the file. These matters were previously before the Board in May 2019 and were remanded in order for the Regional Office (RO) to make a ruling on the Appellant’s request for substitution. In August 2019, the Appellant’s substitution request was granted, and these matters are again before the Board. The Appellant has filed a claim for both accrued benefits and a claim for substitution. Accrued benefits are defined as periodic monetary benefits authorized under law administered by VA, to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at the date of death, and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that: (i) the individual has standing to file a claim for accrued benefits; (ii) the VA payee had a claim pending at the time of death; (iii) the VA payee would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the VA payee’s death. 38 U.S.C. §§ 5101 (a), 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). The Board notes that accrued benefits cases require a closed record. Here, in making its determination, the Board may only consider information that was in the claims file as of the date of the Veteran’s death. 38 C.F.R. § 3.1000 (d)(4). Since the Veteran’s death, new evidence has been added to the file, including medical records and the Appellant’s hearing testimony. Substitution is when an eligible claimant steps into the shoes of a deceased claimant and picks up a pending claim or appeal where it was at the time of the deceased claimant’s death for the purposes of processing the claim to completion. 38 U.S.C. § 5121A; 38 C.F.R. §§ 3.1010. As noted above, the appellant is considered a valid substitute for the purposes of this appeal. See Reliford v. McDonald, 27 Vet. App. 297 (2015). Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A veteran who suffers from certain diseases, such as CAD and amyloidosis, may be entitled to a rebuttable presumption of service connection if the veteran was exposed to an herbicide agent, such as Agent Orange, during active service. 38 C.F.R. § 3.309 (e). VA’s Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, C&P indicated that it 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. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a “greater strength” commercial variant, were used. Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a “facts found or direct basis” should be extended to those veterans. Significantly, C&P stated that “[t]his allows for presumptive service connection of the diseases associated with herbicide exposure.” The May 2010 bulletin identifies several bases in Thailand, including Korat Royal Thai Air Force Base (RTAFB). C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran who served on an air base in Thailand and provided perimeter security. For the criteria for presumptive service connection to be met for most of the diseases listed at 38 C.F.R. § 3.309 (e), including CAD and amyloidosis, that disease shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). CAD and Amyloidosis Claims The Appellant and the Veteran contend that the Veteran had CAD and amyloidosis that were incurred in and due to his time in service. Specifically, that they were due to the Veteran’s exposure to herbicide agents. The Veteran had been diagnosed with CAD and amyloidosis. (See e.g. February 2013 medical letter.) The question then centers on whether the Veteran was exposed to herbicide agents while in service. The Veteran’s military personnel record confirms he had service in Thailand in 1970 and 1971. While the Veteran stated he also served in Thailand in 1965, his personnel records show at that time he was in Okinawa. The Veteran and the Appellant reported the Veteran was exposed to herbicides in Thailand from being in close proximity to the perimeter of the base, working on aircraft returning from missions over Vietnam, herbicides that were stored in Thailand, and herbicides used on base. (See e.g. February 2014 statement, February 2019 hearing transcript.) December 2015 memos from the Joint Services Records Research Coordinator (JSRRC) found information necessary to determine if veteran qualifies for presumptive exposure to herbicides not available through JSRRC and that there is no presumption of secondary exposure based on working on planes that flew over Vietnam. However, the Board finds the Veteran was exposed to herbicides because while in Thailand, at Korat Royal Thai Air Force Base (RTAFB), he spent time around the perimeter. In an April 2014 statement, the Veteran said at Korat RTAFB, his barracks, main gate, and exercise areas were in close proximity to the base perimeter and were all within the 500-meter drift line around the perimeter. A map of the base shows the location of the ramp where ground and air crews spent hours working, the barracks where the Veteran stayed, and the exercise areas. All of these are shown to be within the herbicide drift zone. Therefore, herbicide exposure is conceded and because CAD and amyloidosis are on the list of diseases subject to presumptive service connection, the claims will be granted. Hypertension and Ulcerative Proctitis Claims The Appellant and the Veteran contend the Veteran had hypertension and ulcerative proctitis that were incurred in and due to his time in service. First, the Board notes that neither of these conditions are diseases listed as subject to presumptive service connection due to herbicide exposure and therefore, the claims cannot be granted on that basis. However, the Board will still consider whether service connection can be granted on a direct basis. The Veteran has been diagnosed with ulcerative proctitis and hypertension. The Veteran’s service treatment records (STRs) do not show any trouble with ulcerative proctitis or hypertension while in service. The Veteran’s blood pressure was 120/80 on his separation examination and neither the examiner nor the Veteran reported any problems with ulcerative proctitis or hypertension. Additionally, the Veteran’s medical records do not indicate his hypertension manifested to a compensable degree within one year of his separation from service. The Veteran’s treatment records show he continued to have trouble with these conditions and that he sought treatment for them. However, these records do not indicate that these conditions began in service or are otherwise related to his time in service. The Board notes the Veteran was not provided a separate examination and opinion as to the current nature and etiology of his claimed ulcerative proctitis or hypertension condition by VA. However, VA need not conduct an examination with respect to the claim on appeal, as information and the evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 76 (2006), VA must provide an examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case as the Veteran is not shown to have suffered his conditions while in service and there is no other competent medical evidence suggesting an association to service. Therefore, the Board does not find a remand for an opinion regarding the etiology of these two conditions to be warranted. Service and post-service records only provide evidence against these claims, indicating problems that began many years after service. Hyperlipidemia Claim The Appellant and the Veteran contend the Veteran had hyperlipidemia that was incurred in and due to his time in service. However, hyperlipidemia is a laboratory finding that is not recognized as a chronic disability under VA law and regulation for which compensation may be paid. Therefore, the claim will be denied. Regarding the denied claims above, the Board acknowledges the Veteran’s, his friend’s, and the Appellant’s statements regarding how his disabilities caused him pain, trouble in performing his daily activities, and that they believe these disabilities were due to the Veteran’s time in service. However, while the Veteran and his family are competent to report symptoms of the Veteran’s disabilities, they are not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more probative weight on the objective medical evidence of record and has weighed it as discussed above. (Continued on the next page)   Finally, the Board would like to express sympathy to the Appellant for the loss of her husband. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.