Citation Nr: 20056294 Decision Date: 08/25/20 Archive Date: 08/25/20 DOCKET NO. 15-06 667 DATE: August 25, 2020 ORDER Entitlement to service connection for a cardiovascular disability, to include as due to exposure to tactical herbicidal agents, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a cardiovascular disability which began during active service or is otherwise related to an in-service injury or disease, or that he was exposed tactical herbicidal agents during his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cardiovascular disability have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1968 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In April 2018, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The above matter was before the Board in June 2018,when the Board denied the claim. The Veteran appealed the Board’s denial of the claim to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in June 2019, the Court granted a Joint Motion for Remand (JMR) of the parties (the Secretary of VA and the Veteran), and vacated the Board’s decision, and remanded the case to the Board for re-adjudication consistent with the JMR. Pursuant to the JMR, the matter was again remanded by the Board in October 2019. It now returns for appellate review. Pursuant to the June 2019 JMR and October 2019 Board remand, updated private medical records for all relevant medical providers identified by the Veteran were associated with the record in December 2019 and February 2020. Also, additional VA treatment records, including VA treatment records dated prior to August 1998, were associated with the record in January 2020. Also, as discussed in more detail below, a heart conditions disability benefits questionnaire with an adequate opinion addressing the claim on a direct incurrence basis was obtained in February 2020. Thus, there has been substantial compliance with the June 2019 JMR and October 2019 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board will proceed with appellate review. 1. Entitlement to service connection for a cardiovascular disability, to include as due to exposure to tactical herbicidal agents The Veteran contends he has a cardiovascular disability which is related to his active service. Specifically, in April 2018 testimony and other statements, including most recently in a June 2020 statement, the Veteran contends his cardiovascular disability was due to exposure to dioxin-based tactical chemical herbicides during the Vietnam era while serving in Thailand. In the alternative, as in his October 2013 notice of disagreement, the Veteran contends 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. The question for the Board is whether the Veteran has a current cardiovascular disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, to include as due to tactical herbicide exposure. The three-element test for direct-incurrence service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that, while the Veteran has current cardiovascular diagnoses, and evidence shows that during a February 1972 report of medical history, obtained in conjunction with the Veteran’s separation from service, he checked yes to the existence of pain or pressure in chest, the preponderance of the evidence weighs against finding that the Veteran’s cardiovascular diagnoses began during service or are otherwise related to an in-service injury, event, or 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 February 2020 VA examiner endorsed general diagnoses of atherosclerotic cardiovascular disease and coronary artery disease as well as a more specific diagnosis of percutaneous transluminal coronary angioplasty (PTCA). These diagnosis are consistent with the other medical evidence of record. As to the Veteran’s cardiovascular diagnoses of atherosclerotic cardiovascular disease, coronary artery disease, and PTCA, arteriosclerosis is an enumerated “chronic disease” listed under 38 C.F.R. § 3.309 (a); therefore, the Board finds that the presumptive provisions based on “chronic” symptoms in service and “continuous” symptoms since service at 38 C.F.R. § 3.303 (b) apply for the diagnoses of atherosclerotic cardiovascular disease and coronary artery disease. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). In this regard, the Board recognizes the Veteran has reported, in a July 2018 statement, as to his in-service chest pain, that a cardiovascular disease could lay dormant for many years and may only be detected by doctors doing an angiogram and this was exactly how his private doctor detected his disease in 2007. Additionally, in his October 2013 notice of disagreement, the Veteran reported 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, a layperson’s account of what his family doctor 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). Nonetheless, the Veteran is certainly competent to describe the extent of his current cardiovascular symptomatology and the onset of perceivable pressure in his chest symptomatology during service and onward. See Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent the Veteran asserts he had pressure in his chest which onset during service and continued thereafter, such assertion would be largely not credible as it would be undermined by the absence of any report of symptomatology until many years after separation from service, as well as objective evidence of record to the contrary. In this regard, consistent with the Veteran’s statements of in-service pressure in his chest, in a February 1972 report of medical history, obtained in conjunction with the Veteran’s separation from service, he checked yes to the existence of pain or pressure in chest. This record also documented he had pressure in chest when he overexerted himself in exercise, it was not incapacitating, and there was no complications and no sequelae. However, the February 1972 in-service clinical examination, conducted in conjunction with the Veteran’s separation from service, found, in pertinent part, the Veteran’s heart and his vascular system were clinically normal upon examination, which weighs against a finding of in-service onset as relevant to a cardiovascular disability. In this regard, Board finds that if the Veteran had experienced cardiovascular disability while in service, it would have been documented during the February 1972 separation examination; however, the February 1972 separation examination, as with the corresponding report of medical history, noted while the Veteran had pressure in chest when he overexerted himself in exercise, this was not incapacitating, and there were no complications and no sequelae. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Further, while recognizing the Veteran’s report that the pressure in his chest upon exertion was an initial symptom of ischemic heart disease, such is contradicted by other evidence of record, including his own statements. In this regard, the Board observes in April 2018 testimony, the Veteran clarified that he thought his disability began after service. Additionally, VA and private treatment records show the Veteran was not diagnosed with a cardiovascular disability until many years after his separation from service. In this regard, a July 1996 VA treatment record noted, in part, the Veteran complained of shoulder pain/chest tightness with exertion, but also provided a provisional diagnosis that angina and coronary artery disease were ruled out. A diagnosis of coronary artery disease was indicated in an undated VA treatment record documenting a stress test (which appears to be dated August 1996 based on a request form for a stress test); however, this record also indicated that the test terminated at the request of the patient due to fatigue but also documented this was a normal exercise test. A subsequent August 1996 treatment record also documented a stress test was normal. Additionally, a July 1987 VA treatment record noted, in part, the Veteran was negative for heart disease. Also, May 2002, November 2002, May 2003, and July 2003 VA treatment records found the Veteran’s heart had regular, rate, and rhythm, and no murmur. The February 2020 VA examiner also noted the Veteran had a 2007 diagnosis of mild coronary artery disease by heart catheterization. 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, and in a July 2018 statement, he reported his private doctor detected his disease in 2007. Thus, while not dispositive, the passage of so many years between the Veteran’s discharge from active service and a clinical record reflecting an actual cardiovascular diagnosis in 2007, is a factor that weighs against a finding of service incurrence. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Further, the June 2019 JMR found the September 2013 VA opinion inadequate, thus a February 2020 examination and opinion was obtained. The February 2020 VA examiner found the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the February 2020 VA examiner found it was less likely than not that the Veteran’s complaints on a February 1972 separation examination of pressure in the chest when he overexerted himself were related in any way to his coronary artery disease which was diagnosed in 2007 by cardiac catheterization. As a rationale, the February 2020 VA examiner explained the self-described “pressure in the chest” was a symptom of many different conditions including lack of physical fitness, obstructive airway disease, etc. The February 2020 VA examiner explained there was no definitive diagnosis of coronary artery disease made until 2007 and there was no link that could be made with his coronary artery disease diagnosed 35 years later after his complaints onset separation from active duty. Furthermore, the February 2020 VA examiner noted the Veteran was diagnosed in 1997 with hypertension but explained there was no link that could be established between his hypertension and any subjective complaints of “pressure in his chest” while in the service. The February 2020 VA examiner explained chest pressure symptoms were nonspecific and certainly could be a component of coronary artery disease which he had been diagnosed with to a mild extent in 2007. However, the February 2020 VA examiner found that in no way could the subjective symptoms be considered a definitive diagnosis of coronary artery disease in the 1970s, or with increasing hypertension in the 1990s. The February 2020 VA examiner found the Veteran’s coronary artery disease was secondary to atherosclerotic cardiovascular disease, which was primarily caused by genetics. Similarly, in the examination report itself, the February 2020 VA examiner explained the Veteran’s coronary artery disease was secondary to atherosclerotic cardiovascular disease, his PTCA was secondary to coronary artery disease, and his atherosclerotic cardiovascular disease was genetic. The February 2020 VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes he has a cardiovascular disability that is related to an in-service injury, event, or disease, he has not been shown to have the requisite medical knowledge to be deemed competent to provide a nexus opinion on this basis. This issue is medically complex, as it requires medical knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he had the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the clinical evidence of record, including the February 2020 opinion. Next, the Board will consider the claim on the basis of in-service tactical herbicide exposure as the Veteran asserts he was exposed to tactical herbicidal agents during his service in Thailand. In this regard, most recently in a June 2020 statement, the Veteran indicated his in-service exposure to Agent Orange slowed the oxygen in his arteries leading to his heart and that Agent Orange did not harden the arteries immediately but over several years or even decades some blockage occurred, as in his case. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, such as ischemic heart disease including atherosclerotic cardiovascular disease including coronary artery disease, are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) 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); 38 C.F.R. § 3.309 (e). The term “herbicide agent” (colloquially known as Agent Orange) 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). However, VA regulations do not presume herbicidal agent exposure for veterans who served in Thailand. Instead, VA has adopted a procedure for verifying exposure to herbicide agents in Thailand during the Vietnam Era. The VA Adjudication Manual (M21-1) explains that the 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 certain Royal Thai Air Force Bases (RTAFBs), specifically U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. M21-1, Part IV, Subpart ii. 1.H.4.b. The M21-1 directs that herbicide agent exposure may be conceded on a facts-found basis if a veteran served on one of the listed RTAFBs during the Vietnam Era if the veteran served as a security policeman, security dog handler, member of the security police squadron, or otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Id. The M21-1 is not binding on the Board. 38 C.F.R. § 20.105. However, in this case the Board finds that reliance on the M21-1 provisions is appropriate as these provisions are based on review by VA’s Compensation and Pension Service of a declassified Vietnam era Department of Defense document titled Project CHECO Southwest Asia Report: Base Defense in Thailand, which indicated herbicides were used for weed control in Thailand. See Rescinded VA Compensation Service Bulletin 2010 - (05) May; see also Overton v. Wilkie, 30 Vet. App. 257 (2018). Essentially, the M21-1 provisions are based on information from a credible source on the use of herbicides in Thailand which is probative as to determining the conditions of service which could have exposed a veteran to tactical herbicides while serving in Thailand. Consistent with the Veteran’s report of service in Thailand, his service records document that he served in Thailand from May 1971 to May 1972. Specifically, the Veteran’s service records, which are also consistent with his testimony and other statements, document his military occupational specialty (MOS) was related to an administrative function at the Nakhon Phanom RTAFB. Thus, while the Veteran’s service records do not contain information concerning exposure to tactical herbicide agents, they do expressly establish that he served in Thailand, specifically at the Nakhon Phanom RTAFB, a qualifying RTAFB as listed in the M21-1. However, as described above, the Veteran did not have a security related military occupational specialty (MOS) but was assigned an administrative 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. Conversely, a December 1971 performance report reflected the Veteran served as Non-Commissioned Officer in Charge (NCOIC) of the Special Orders branch, special orders clerk, and his duties consisted of reviewing, controlling preparation for authentication, and distribution of all headquarters 56th Combat Support Group special orders. In a July 2015 statement, provided in a VA Form 9, as well as in other statements, the Veteran reported he was constantly exposed to the perimeter as he had to travel the total of a mile every day on the road around the perimeter to get from the barracks to the work station and that in the barracks area he played volleyball and touch football along the perimeter as it was the only available cleared land large enough. Similarly in April 2018 testimony, the Veteran testified that, while stationed at Nakhon Phanom RTAFB, 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. 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. As discussed above, the Veteran’s service records reflect that, while stationed at Nakhon Phanom RTAFB, he served as NCOIC of the Special Orders branch, with a current duty of special orders clerk, and his duties consisted of reviewing, controlling preparation for authentication, and distribution of all headquarters 56th Combat Support Group special orders. Further, considering the passage of time since his service at Nakhon Phanom RTAFB, the Board finds that the Veteran’s recollection of activities that may have placed him near the perimeter to be too tenuous to be considered credible. As such, these statements do not qualify as other credible evidence sufficient to concede herbicide agent exposure. Further, in spite of the Veteran’s recollection 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 the 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 finds that the Veteran’s explanations of being near the perimeter are insufficient to outweigh the fact that he served in an administrative role. Further according to the Veteran’s explanation, everyone within the base would have engaged in recreational activities, traversed the base, or entered or left the base in the same manner as described by the Veteran, and thus, have been exposed to tactical herbicides. If this were the case there would be no reason to have any of the directions in the M21-1, rather exposure would just be presumed if one served at one of the designed RTAFB during the appropriate time frame, and so this clearly cannot be the intent of provisions regarding nearness to the perimeter found in the M21-1. Additionally, in a July 2015 statement, provided on an unnecessary VA Form 9, the Veteran reported his belief that many large plots of ground on the base were sprayed with Agent Orange. However, the Veteran 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). Further, although the Veteran is competent to report that which is capable of his lay observation, there is no indication that he has the scientific training or expertise to identify tactical herbicides he believes were sprayed and his assertions amount to no more than speculation. Jandreau, 492 F.3d at 1377. Other supplemental material submitted by the Veteran consists of an internet printout from the VA website, received by VA in October 2013, with information regarding Agent Orange exposure in Thailand and on which the Veteran highlighted, in part, the Nakhon Phanom RTAFB, which the printout states was one of the RTAFB at which a veteran may have been exposed to herbicides. However, while the October 2013 internet printout discussed herbicide use in Thailand, including at Nakhon Phanom RTAFB, it only suggests that veterans stationed at the Nakhon Phanom RTAFB may have been exposed to herbicides and it does not establish that the Veteran was personally exposed to herbicides during his period of active service. Additionally, photographs were associated with record at the April 2018 hearing, which the Veteran’s representative stated 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 diminishes their probative value. Moreover, the Board is unable to definitively discern a base perimeter in any of the photographs. Additionally, the photographs do not provide specific evidence that the Veteran was exposed to herbicide agents while stationed at the Nakhon Phanom RTAFB. Further, 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 presumptive service connection based on service in Thailand, VA specifically did not extend the presumption to all service-members who served there, such as those who traveled through the gates to enter or exit 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. Further, as documented 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 RTAFB 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 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 was 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 RTAFB as the record does not support a finding that he worked on or near the perimeter of Nakhon Phanom RTAFB. Moreover, corroborating evidence of actual, direct exposure to tactical herbicides in service is also not established. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As in-service tactical herbicide exposure is not conceded, service connection based on tactical herbicide exposure is not warranted. Additionally, the June 2019 JMR did not disturb the Board’s June 2018 finding that in-service tactical herbicide exposure was not conceded and did not find any further development was warranted as to this aspect of the claim. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for a cardiovascular disability, to include as due to exposure to tactical herbicidal agents. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.