Citation Nr: 21062201 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-42 690 DATE: October 6, 2021 ORDER Entitlement to service connection for a heart disability including ischemic heart disease (IHD), to include as due to herbicide exposure or exposure to asbestos, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that Veteran was exposed to herbicide agents during his active duty service in Thailand. 2. The preponderance of the evidence is against a finding that the Veteran's heart disability, to include IHD, had its onset during his active service or is otherwise etiologically related to such service. CONCLUSION OF LAW The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 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 January 1966 to May 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2017 Department of Veterans Affairs (VA) rating decision. In March 2019 the Board reopened and remanded this claim, and in June 2020, the Board remanded the matter again for further development. Such has been completed and this matter is returned to the Board for further consideration. 1. ISCHEMIC HEART DISORDER The Veteran contends that his heart disability/IHD is related to exposure to herbicide agents during service in Thailand. He is not shown by service personnel or treatment records in the file to have served in Vietnam. His service personnel records show that he was stationed at Ubon Royal Thai Air Force Base (RTAFB). In a July 2016 statement, his July 2017 substantive appeal, and his March 2018 brief, the Veteran presented details of his alleged exposure to herbicide agents. He related that enroute to Thailand around February 9, 1967 on a C-130 airplane, he landed in Vietnam; that, around November 10,1967, he was sent on mission into Vietnam to recover a downed airplane (he sent pictures appearing to show wreckage of an airplane, which he reported was dated November 10, 1967); and that he was assigned to squadron 4525 of the 8th tactical field maintenance division at Ubon RTAFB, which took him to the base perimeter. The Veteran also submitted a copy of his Thai driver's license, arguing it supported that he frequently crossed the base perimeter. Establishing service connection generally requires (1) medical evidence of 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 of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96. Certain chronic diseases including cardiovascular-renal will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection also may be presumed for certain diseases, including ischemic heart disease, for veterans who were exposed to an herbicide agent such as that found in "Agent Orange" during active service. See 38 C.F.R. § 3.309 (e). VA defines "herbicide agent" as 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). Exposure to herbicides may be presumed for veterans who served in the Republic of Vietnam, during the Vietnam Era (from January 9, 1962 to May 7, 1975) and for veterans who served in certain unit that operated in or near the Korean demilitarized zone (DMZ) between April 1, 1968, and August 31, 1971. Here, however, the Veteran does not allege service in the Republic of Vietnam or the DMZ. Instead, he contends that he was exposed to herbicide agents while serving in Thailand. There is no statutory or regulatory presumption of exposure to herbicide agents in Thailand. As noted in the May 2010 Compensation and Pension Bulletin, although the Department of Defense reported that commercial, not tactical, herbicides were used within the confines of bases in Thailand during the Vietnam era, 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. The VA Adjudication Procedures Manual (M21-1) is not binding on the Board. However, the Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257 (2018). VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. M21-1, Part IV, Subpart ii, Chapter 2, Section C. VA 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 as evidenced in a declassified Vietnam-era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis is extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. Most of the U.S. servicemen in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on facts found or direct basis. In this case, the Veteran's MOS was shown to be jet engine mechanic/technician in his DD-214. He was stationed in Ubon Air Base in Thailand from February 1967 to March 1968. Per a performance report in January 1968 he was regarded as one of the highest caliber mechanics with exceptional ability. He also had a security clearance which terminated in January 1968. On induction examination in August 1965, findings were normal for the heart, with blood pressure of 126/70. The report of medical history did not describe any medical issues with his heart. Service treatment records show no evidence of any cardiovascular issues. His April 1969 separation examination showed normal cardiovascular findings, with blood pressure of 130/86 and the report of medical history did not describe any medical issues with his heart. Social Security records obtained include copies of VA and private records with a May 2006 chest X ray for cough and congestion showing findings suggestive of early lingular pneumonia and probable associated pulmonary vascular congestive pattern. A December 2006 record noted that the Veteran to continue smoking and was regularly checked his blood pressure which was 140 at home. The impression was arteriosclerotic heart disease (ASHD) with known coronary disease, aortic stenosis, severity uncertain and carotid bruits. Heart and Vascular Center records from April 2007 and October 2007 continued to show a diagnosis of aortic stenosis, ASHD, and hypertension. He also was noted in April 2007 to have hyperlipidemia, and was noncompliant with medications, while in October 2007 he was still smoking. Records from March 2008 described him doing well with no cardiovascular symptoms and an impression of aortic sclerosis, with hypertension under very good control. He also had hyperlipidemia. Records from April 26, 2008 through May 4, 2008 show that the Veteran was hospitalized for a history of 36 hours of stuttering chest pain and elevated troponin of 31 on 4/26/08. He underwent cardiac catheterization on and surgery with pre-surgery diagnoses of coronary artery disease (CAD) status post-acute myocardial infarction (MI), hypertension (HTN), hyperlipidemia, and history of smoking. He underwent a surgery of coronary artery bypass grafting times 4. On discharge on May 4, 2008 he was diagnosed with CAD, acute MI, status post CABG times 4, and history of hypertension. In December 2008 and in September 2009 he was noted to be continuing to smoke after his April 2008 CABG. In November 2014 he was seen for care within the VA system with complaints of fatigue and history of obstructive sleep apnea (OSA). He had a 50 pack year smoking history and an extensive cardiac history that included MI, CAD status post stents in 2002 and 4 vein CABG in 2008, worsening aortic stenosis (AS), HTN and hyperlipidemia (HLD). In December 2014 he underwent an echocardiogram with conclusions of a history MI, CAD (s/p stents and 4 v CAB 2008), mod/severe~AS, AF, HTN, HLD, and OSA. In January 2017 the Veteran was hospitalized briefly for heart problems and his discharge diagnoses were heart failure with ejection fraction (EF) greater than or equal to 40. CAD, HTN, AFIB, Aortic Valve disease, long history of tobacco use. None of the treatment records contained any evidence linking the diagnosed heart disorders to service. After the JSRRC in December 2015 issued a formal finding of lack of information to corroborate the herbicide exposure, the Board remanded this matter in June 2020 for further development. Development was undertaken, including as directed by the Board's remand to obtain further information as to possible exposure to herbicides in service. Such development has been in substantial compliance with the Board's remand directives. In August 2020 the RO obtained an opinion from a military expert from the Air Force Historical Research Agency (USAF AFHRA) to address the questions posed by the Board asking to clarify whether the Veteran's duties as an expert jet engine mechanic may have placed him at the flight line-for final inspections/adjustments before flights, and upon researching the proximity of the flight lines to the Ubon RTAFB perimeter, is it as likely as not that the Veteran's duties as a jet mechanic would have placed him at or near the base perimeter? The expert was also asked whether the Veteran's possession of a Thai driver's license reasonably support a finding that he frequently passed through the Ubon RTAFB base perimeter, i.e., were security practices at Ubon such as to allow airmen stationed there to own (and drive onto and off the base) either private motor vehicles or that he was authorized to use and drive an official (Air Force) vehicle. The expert responded to the first question stating that Ubon Royal Thai Air Force Base is only documented as to having utilized commercial-grade herbicides along its perimeter from 22 June 1970, for a few weeks, and then again in January 1971. If the dates of the veteran's assignment to Ubon was before or after these dates, the question is moot. In regard to being a jet engine mechanic, they normally stayed and worked either in their shop/hangar, or on the flight line. However, the flight line is in the middle of the base, not near the perimeter, as you park the aircraft away from the perimeter. The expert submitted an attached photo for context. Any adjustments on aircraft engines while the aircraft was on the taxi-way, near the perimeter, would have been few and far between events. Concerning the Thai driver's license; that only allowed him to drive on Thai roads. To drive a USAF vehicle, he would have to have a USAF driver's license. Having either does not guarantee that he actually drove near the perimeter fence. Private vehicles were rare, but not unheard of (especially motorcycles). However, a service member had to purchase a vehicle after he arrived in Thailand as he could not ship a vehicle to that country via the DOD. If he bought a 'junker' while there, he would have needed a Thai Driver's License to drive it on Thai roads. But there is no way to tell if he ever drove it near the perimeter. Of course, if he left the base to drive on Thai roads, he would have, as did everybody else on the base, whether driving, being a passenger, or being a pedestrian, leave the installation via the main gate, which is on the perimeter. But again, since Ubon has only been documented to have used commercial-grade herbicides for only a few weeks in June/July 1970 and again in January 1971, and no proof or evidence has ever been uncovered for the use of the tactical herbicide Agent Orange at any time at any USAF Thailand installation, this claim would not meet the criteria for exposure if he was not present at those times, nor does his duties as alleged would have exposed him either. A records research response was obtained in March 2021, which provided a synopsis of the research undertaken to corroborate his claimed exposure. The exposure circumstances reported included the Veteran being in Thailand from February 6, 1967 through February 1, 1968 as a jet engine mechanic with a history as follows. On November 10, 1967, he was sent on mission into Vietnam to recover a downed airplane. He sent pictures appearing to show wreckage of an airplane, which he reported was dated November 10, 1967, and that he was assigned to squadron 4525 of the 8th tactical field maintenance division at Ubon RTAFB, which took him to the base perimeter. The Veteran also submitted a copy of his Thai driver's license, arguing it supported that he frequently crossed the base perimeter. The synopsis confirmed that a professional researcher from the Veterans Benefits Administration (VBA), Compensation Service, Military Records Research Center, has completed comprehensive research on the Veteran's claimed exposure event, claiming that he was assigned to the 8th Field Maintenance Squadron (FMS) from October 13, 1967 to December 11, 1967 when he was stationed in Thailand from February 6, 1967 through February 1, 1968 as a jet engine mechanic. During his assignment, he was reportedly sent on a mission into Vietnam as part of the 4525th Squadron of the 8th Tactical Field Maintenance Division a Ubon Royal Thai Air Force Base on November 10, 1967 to recover a downed airplane which took him to the base perimeter. The VBA partnered with The Air Force Historical Research Agency (AFHRA), custodian of Air Force unit records for the veterans claimed event. AFHRA was unable to confirm the event claimed by the veteran. In conclusion, no evidence was located to support documentation of the claimed event. The report of a May 2021 VA examination diagnosed the following heart disorder, acute, subacute, or old myocardial infarction (MI) diagnosed in 2008; atherosclerotic cardiovascular disease diagnosed in 2002; coronary artery disease diagnosed in 2002; supraventricular arrhythmia diagnosed in 2014; valvular heart disease diagnosed in 2014; heart valve replacement diagnosed in 2010; hypertensive heart disease diagnosed in 2014; coronary bypass graft (CABG) diagnosed in 2008. In his medical history for the claimed condition of ischemic heart disease (IHD), he reported having a heart attack in 2005 requiring open heart surgery with 4 vessel CABG and heart valve replacement. The VA examiner determined that the following heart conditions qualified within the generally accepted medical definition of IH: MI, CAD status post stents and 4 vessel CABG and atherosclerotic heart disease. The etiology of the MI and the CAD (status post stents and 4 vessel CABG) was atherosclerotic heart disease. The etiology of the atherosclerotic heart disease was hyperlipidemia and hypertension. The etiology of the heart valve replacement was unknown. The etiology of the hypertensive heart and valvular disease was hypertension. The date of his MI was said to be in 2002 treated by a private facility. He was deemed not to meet the criteria for congestive heart failure. He had a cardiac arrhythmia specifically atrial fibrillation. He also had a heart valve condition of aortic stenosis with insufficiency and mitral regurgitation. No other cardiac conditions were listed. His heart procedures included the treatment for MI with percutaneous coronary intervention (angioplasty) in 2002, while he underwent CABG in 2008 for CAD. He also had a heart valve replacement with the time and condition unknown due to an inability to locate the surgical report in the treatment records. Following physical examination and echocardiogram (done in June 2021) he was noted to have a murmur during auscultation easily RUSB and LLSB, and elevated blood pressure of 189/103. Echocardiogram showed a left ventricular ejection fraction of 57% and a segmental wall motion abnormality. Results of interview based METs test was greater than 3 but less than 5 METS consistent with activities such as light yard work, mowing lawn and brisk walking. The examiner was asked to provide an opinion that addressed the alternate theory of entitlement to service connection secondary to asbestos in service and including addressing the extent of any post service exposure in any occupations following service. The examiner confirmed review of the records and stated that new literature provided does not provide any new evidence as it pertains to asbestos exposure and the duration of exposure required to cause heart disease but rather shows evidence that there may be a link or increased risk. The examiner stated that risk does not equal absolute cause. Additionally, there is no clear indication that Asbestos was the cause of the current heart disease in the form of acute, subacute, or old myocardial infarction in 2008; atherosclerotic cardiovascular disease in 2002, coronary artery disease in 2002, supraventricular arrhythmia in 2014, valvular heart disease 2014, hypertensive heart disease in 2014, coronary artery bypass graft in 2008, and/or heart valve replacement in 2010. The examiner then addressed an article provided by the Veteran on CVD mortality among British asbestos workers. The first paragraph clearly points out that asbestos as a risk factor for cardiovascular disease has not been established. It definitely does not clearly and specifically prove or show which cardiovascular diseases would be specifically associated with asbestos exposure nor to what extent a person needs to be exposed. The study provided ascertains that asbestos exposure could be a risk factor and should be considered and studied. It should also be clearly understood a risk factor is not a guarantee but something that should trigger a healthcare provider to consider evaluation for heart disease when the claimant reports an exposure similar to a claimant reporting long-term tobacco use, being obese, or having elevated cholesterol. The article is reporting asbestos exposure as a risk factor and again, risk factor does not specifically cause the disease. For example, obesity is a risk factor for diabetes but not all obese people have diabetes. Alcohol use is a risk factor for liver disease but not all people that drink alcohol will develop liver disease. The examiner further pointed out that about half of all Americans (47%) have at least 1 of 3 key risk factors for heart disease: high blood pressure, high cholesterol, and smoking and the Veteran has all three. He also has diabetes which is another and greater risk factor for heart disease than asbestos. Based on the recognized medical literature for the development of heart disease available, the Veteran's age, HTN, HLD, long history of smoking, and diabetes are more likely to have caused the heart disease than the asbestos exposure. The examiner confirmed reading the decisions previously provided and see no new evidence having been provided sufficient to overturn those decisions. The Veteran has a current diagnosis of heart disabilities to include acute, subacute, or old myocardial infarction (MI) diagnosed in 2008; atherosclerotic cardiovascular disease diagnosed in 2002; coronary artery disease diagnosed in 2002; supraventricular arrhythmia diagnosed in 2014; valvular heart disease diagnosed in 2014; heart valve replacement diagnosed in 2010; hypertensive heart disease diagnosed in 2014; coronary bypass graft (CABG) diagnosed in 2008. Cardiovascular-renal disease is an enumerated condition under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. However, no diagnosed heart disability was shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The earliest diagnosed heart disorder was no earlier than 2002, decades after the Veteran's separation from service and decades outside of the applicable presumptive period. The Veteran does not allege, and the record does not suggest, continuity of cardiovascular disorder symptomatology dating back to service or the presumptive period. Although the Veteran's heart diagnoses included ischemic heart disease and he has alleged exposure to herbicides, such exposure may not be presumed and has not been confirmed through research obtained through USAF AFHRA, with the conclusions from such research detailed above. His MOS and service location do not align with and are not substantially similar to the examples provided in the M21 for Veterans whose herbicide exposure should be acknowledged on facts found or direct basis. Moreover, his lay reports do not establish that the Veteran's official duties required him to be on the base perimeter with the frequency and extent of the security personnel that have benefited from the extension of the presumptive provisions. As such, the provisions of the M21-1 do not provide direct support for the Veteran's claim. In addition to the negative conclusions made from such research, the Veteran's service records do not reflect duties that would have put him on or near the base perimeter on a regular basis. Service connection may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's heart disorder and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Of note the Veteran was provided with a May 2021 VA examination, which included review of the evidence and examination of the Veteran, with an opinion supported by adequate rationale finding no diagnosed heart disability was incurred in or aggravated by any incident in service. This includes the alternate theory that he was exposed to asbestos in service and developed a heart disorder as a result of such exposure. As previously noted, the Veteran's MOS was jet engine mechanic. The Board in its prior remand of June 2020 essentially conceded asbestos exposure from this MOS which it ordered a medical opinion be obtained addressing whether a heart disability was due to such exposure as a jet engine mechanic during service. Thus affording the Veteran the benefit of the doubt, the Board finds that the Veteran's report of exposure to asbestos is consistent with the place, type, and circumstances of his active service. 38 U.S.C. § 1154. However, the June 2021 VA examiner addressed this theory of entitlement and gave an opinion finding that that the evidence, including medical literature reviewed does not support a finding that any of his diagnosed heart disorders was related to such asbestos exposure, with adequate rationale provided for this opinion. There is not otherwise shown to be a competent medical opinion of record that shows that the Veteran's heart condition was related to active service, to include the Veteran's exposure to asbestos. Moreover, the Board is precluded from making its own medical determinations. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a heart disability, and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney in this contfor the Board C. Eckart 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.