Citation Nr: 21001391 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 06-28 292A DATE: January 7, 2021 ORDER Entitlement to service connection for ischemic heart disease is granted. FINDING OF FACT In service the Veteran at least as likely as not was exposed to an herbicide agent. Later he was diagnosed with heart disorders including ischemic heart disease. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from February 1971 to December 1974. In a period in 1972 and 1973, he served at U-Tapao Royal Thai Air Force Base (RTAFB) in Thailand. In 1996 and 1997 the Veteran sought service connection for disorders manifested by pain in multiple areas, including his heart and chest area. In a May 1998 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for muscle spasm around the heart, chest, and torso. The Veteran did not appeal that denial. In May 2004 the Veteran sought service connection for heart problems, including a heart attack. In a December 2004 rating decision, the RO denied service connection for heart problems claimed as heart attack. The Veteran appealed that denial to the Board of Veterans’ Appeals (Board). In a January 2010 decision, the Board denied service connection for a cardiovascular disability, including heart disease. In February 2013 the Veteran initiated a claim for service connection for ischemic heart disease. In an August 2013 rating decision, the RO denied reopening of a previously denied claim for service connection for heart disease. The Veteran appealed that denial to the Board. In May 2016 the Board remanded the request to reopen the heart disease service connection claim to the RO, for additional action. In March 2017 the Board granted reopening of the previously denied claim. The Board remanded the reopened service connection claim to the RO for additional action. In February 2018 the Board again remanded the service connection claim to the RO for additional action. 1. Service connection for ischemic heart disease The Veteran contends that he has ischemic heart disease that is attributable to herbicide exposure in service. He contends that his heart disorders include ischemic heart disease. He contends that he likely was exposed to herbicides in one or more ways during service, particularly while he was stationed at U Tapao. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including cardiovascular-renal disease, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. Service connection for certain specifically listed diseases, including ischemic heart disease, may be presumed if a veteran was exposed during service to any of certain herbicide agents, including Agent Orange, that contains dioxin. 38U.S.C.A. §1116; 38C.F.R. §§3.307, 3.309(e). A veteran who served on active duty in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38C.F.R. §3.307(a)(6). VA also considers other circumstances, locations, and duties through which a veteran might have had herbicide exposure in service. 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 U-Tapao 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. An Air Force veteran who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during that service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(v). For purposes of that presumption, “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft, and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Id. For the purpose of presumed service connection based on herbicide exposure, the term ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal’s angina. 38C.F.R. §3.309(e). The term ischemic heart disease does not include hypertension, or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38C.F.R. §3.309(e), Note 2. The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. On examination of the Veteran in January 1971, for entrance to service, the examiner marked normal for the condition of his heart. The Veteran’s service treatment records (STR) do not reflect any complaints or findings of heart problems. After service, on VA examination in March 1975, on VA examination in March 1975, no heart disorder was found. On VA examination in June 1982, chest x-rays showed no evidence of acute cardiopulmonary disease. In VA and non-VA treatment in the 1990s, the Veteran sometimes reported episodes of chest pain. Clinicians who saw him did not diagnose a heart disorder. In the late 1990s he was diagnosed with hypertension begun on medication to treat it. In VA treatment in May 2004, the Veteran reported chest pain. Imaging showed moderate ischemia. Diagnoses included heart block. Treatment included placement of a pacemaker. From then on, he had periodic cardiology follow-up. In May 2009 he underwent cardiac catheterization. In 2012 and 2013 he had ventricular high rate episodes. From 2013 on, a list of his problems included atrial fibrillation. In a June 2015 statement, the Veteran noted that diagnoses regarding his heart had changed over the years. The Veteran had a VA heart examination in May 2017. The examiner reviewed the claims file. The examiner found that in 2004 the Veteran had coronary spasm, including Prinzmetal’s angina, and had a cardiac pacemaker implanted. The examiner found that presently the Veteran was treated with medications to address hypertension, heart block, and sick sinus syndrome. The examiner expressed the opinion that the Veteran did not have ischemic heart disease. In February and March 2019, the Veteran had VA inpatient treatment due to shortness of breath. Findings included an acute exacerbation of chronic diastolic heart failure. From 2019 on, lists of his problems included chronic diastolic heart failure. On VA examination in September 2019, the examiner reviewed the Veteran’s claims file. The Veteran reported a history of heart problems from at least as early as 2006. He attributed those problems to Agent Orange exposure in service. He related current impairment of heart valve function, producing symptoms of weakness, fatigue, and shortness of breath. The examiner found that in 2004 the Veteran was diagnosed with atrial fibrillation and had a cardiac pacemaker implanted. The examiner found that in 2017 the Veteran was diagnosed with coronary artery disease. The examiner found that a September 2019 EKG showed evidence of septal myocardial infarction, probably old, and showed evidence of possible inferior ischemia. The examiner indicated that the Veteran had a history of congestive heart failure. The examiner stated that the Veteran currently was on four medications to treat myocardial ischemia. The examiner wrote that the Veteran’s clinical findings and presentation suggested ischemic heart disease. From 2004 forward, there have been some differences between diagnoses regarding the Veteran’s heart. Significantly, treatment and examination records contain findings of coronary spasm, Prinzmetal’s angina, coronary artery disease, old myocardial infarction, myocardial ischemia and ischemic heart disease. Those findings are sufficient to show that he has a current diagnosis of ischemic heart disease. The Veteran’s service personnel records reflect that he served at U-Tapao for about twelve months, from mid-1972 through mid-1973. His performance reports from that period state that he maintained aircraft refueling systems and refueled aircraft. The reports indicated that he operated transportable hydrant refueling systems. In an allergy evaluation in October 1973, the Veteran reported that he was a fuel specialist and he worked outdoors on the flight line. His separation report recorded his military occupational specialty (MOS) as fuel specialist. In statements the Veteran submitted in 2012 through 2020, he reported events in service that he claimed likely exposed him to herbicides. In June 2018 he wrote that he moved fueling equipment around the base’s perimeter road. He stated that he did so extensively, for many hours each day during three periods of about a month each. In the Veteran’s statements he also wrote that there were C-123s at U-Tapao when he was there. He stated that he refueled them and worked near them, and thus was exposed to herbicide residue from them. He also reported that, during an air supply run carrying several drums of herbicide, he slipped and fell into herbicide that leaked a pierced drum. In addition, he related that he helped deliver refueling equipment to an off-base location that had been heavily sprayed with herbicide. The RO requested from the military information related to operations and circumstances while the Veteran was at U-Tapao. In August 2020, an Air Force archivist stated that a review of UC-123 aircraft, by tail number, did not show an aircraft that was stationed at U-Tapao or with the Veteran’s squadron during that period. The RO followed up for further information, noting the Veteran’s report of repeated contact with C-123 aircraft while at U-Tapao. The archivist responded that there were many C-123s in the theater, but not many Ranch Hand UC-123s. He reaffirmed that no record had been found showing that a Ranch Hand UC-123 ever went to U-Tapao. Operation Ranch Hand sprayed defoliants and herbicides in Vietnam, Laos, and Cambodia. The operation used UC-123 aircraft, a type of C 123, and operated out of bases in Vietnam and Thailand. The Veteran’s report that at U-Tapao he spent considerable time moving refueling equipment around the base perimeter road is credible. That duty, as he has described it, is consistent with his MOS of fuel specialist, and is consistent with the duties described in his performance evaluations. The Board accepts that his duties at U Tapao included considerable time spent near the base perimeter. Accordingly, as a factual matter, affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that he was exposed to an herbicide agent during his service at U-Tapao. The Board concludes that the Veteran has a current diagnosis of ischemic heart disease, and that he was exposed to an herbicide agent in service. Accordingly, the Veteran presumes and grants service connection for his ischemic heart disease. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kunz, Kirsten 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.