Citation Nr: 21004164 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-00 384 DATE: January 26, 2021 ORDER Entitlement to service connection for heart condition due to herbicide exposure is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s heart condition began during active service or is otherwise related to an in-service injury or disease, to include herbicide exposure. CONCLUSION OF LAW The criteria for service connection for heart condition are not 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 in the United States Army from January 1971 to December 1972. The Board notes that the Veteran’s claim of entitlement to service connection for prostate condition was granted in an October 2020 rating decision. As such, this issue is no longer on appeal and the Board does not have jurisdiction. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). In May 2019, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2018, the Veteran testified at a Board hearing. The transcript is of record. 1. Entitlement to service connection for heart condition, to include due to herbicide exposure The Veteran contends that his heart condition is due to herbicide exposure that occurred while stationed in Korea from January 1972 to December 1972. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) 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.” Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). If the veteran was exposed to an herbicide agent (to include Agent Orange) during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). Effective February 24, 2011, VA amended its regulations (38 C.F.R. § 3.307) to extend a presumption of herbicide exposure to certain Veterans who served in Korea. 76 Fed. Reg. 4245-01 (Jan. 25, 2011). Specifically, a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, 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 that service. 38 C.F.R. § 3.307 (a)(6)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309 (e) are applicable. The Veteran testified that he served in Korea from January 1972 to December 1972. While he was there, he accompanied Camp Casey commanders on Huey helicopters to tour the DMZ and radar sites. He explained that the helicopters did not have doors resulting in dust exposure for about five to ten minutes after landing or during takeoff. Review of the military personnel records confirms service in Korea beginning in January 1972. A request was made to the Joint Services Records Research Center (JSRRC) to corroborate the Veteran’s reported herbicide exposure. The JSRRC coordinated with the National Archives and Records Administration (NARA) and reviewed the 1916 to 1973 unit history of the 122nd Signal Battalion, the operation reports for the period from April 1972 to October 1972, the 1972 United States Army Station list and the 1972 chronology submitted by the Eighth United States Army. While the records indicate that the 122nd Signal Battalion was at Camp Casey, Korea, there is no documentation of the Veteran or any other personnel assigned to the 122nd Signal Battalion accompanying the commanding officers on helicopters tours of the DMZ. JSRRC also reported that the documents did not reveal the use, storage, spraying, or transporting herbicides, to include Agent Orange or mention any specifics performed by the 122nd Signal Battalion members along the DMZ. It was determined that there is insufficient information to verify the reported exposure to herbicide agents and any further attempts are futile. See VA Memo October 2020. While the Veteran is competent to provide testimony as to his duties in Korea, which included helicopter tours of the DMZ and radar sites, the evidence is insufficient to establish herbicide exposure during active service. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran’s service in Korea is after August 1971; thus, he is not entitled to service connection due to herbicide exposure under a presumptive basis. The Veteran is also not entitled to service connection under a direct basis. While the lay evidence establishes that the Veteran’s duties, at times, may have placed him near or in the DMZ and radar sites, there is insufficient evidence to establish that the Veteran was exposed to herbicide agents during these tours as the JSRRC reported that there was no use, storage, spraying or transporting of herbicides during this period. The Board notes the Veteran’s contention that since prostate disorder was granted due to herbicide exposure, he is entitled to presumptive service connection for his heart condition. As discussed, the evidence is insufficient to establish herbicide exposure. The Veteran’s service in Korea is outside the presumptive time period and while the Veteran’s statements place him on or near the DMZ he does not allege working with or seeing herbicide agents during his tours. Furthermore, the JSRRC found no use, storage, spraying or transporting of herbicides during the relevant period. The formal findings in the VA Memo dated October 19, 2020 determined that the VA lacks the information required to verify exposure to herbicide agents in Korea along the DMZ. Notably, the October 2020 rating decision does not provide the justification for finding herbicide exposure and the Board cannot find one based on the reasons discussed. The Board is not bound by the findings of the Regional Office and entitlement to service connection based on herbicide exposure is not warranted. See McBurney v. Shinseki, 23 Vet. App. 136, 139 (Sept. 10, 2009); Anderson v. Shinseki, 22 Vet. App. 423, 428 (Mar. 13, 2009). The Board also notes that the Veteran does not allege, nor does the evidence establish that his heart condition manifested during or within a year after separation from service. The service treatment records are silent as to any complaints, treatments, or diagnoses related to the heart. Post-service treatment records indicate that the Veteran’s heart problems began around 2008, which is decades after separation from service. Therefore, while the Veteran has a heart condition, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. As the preponderance of the evidence is against this claim, the appeal is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.