Citation Nr: 21068797 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-49 321 DATE: November 12, 2021 ORDER Service connection for ischemic heart disease is granted. FINDINGS OF FACT 1. The Veteran served on active duty in Korea from May 1967 until May 1968, and it is as likely as not that his duties placed him on/near the Korean Demilitarized Zone (DMZ); the Veteran is therefore presumed to have been exposed to tactical herbicides, including Agent Orange during service. 2. The Veteran has ischemic heart disease in the form of coronary artery disease, that is presumed to be due to in-service herbicide exposure. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1116B (2020); 38 C.F.R. §§ 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to August 1968, including service in Korea during the Vietnam War era from May 1967 to May 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for ischemic heart disease. The Veteran's notice of disagreement (NOD) was received in February 2015. The RO issued the statement of the case (SOC) in September 2017, and the Veteran's VA Form 9, substantive appeal was received in September 2017. In the Form 9, the Veteran requested a hearing before a Veterans Law Judge (VLJ). In May 2021 written correspondence, the Veteran withdrew the hearing request and requested that the case be decided based upon the evidence of record. The hearing request is therefore deemed withdrawn. Service Connection Entitlement to service connection for ischemic heart disease The Veteran contends that he is entitled to service connection for ischemic heart disease, due to in-service exposure to Agent Orange. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be presumed to be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if 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; i.e. unless there is affirmative evidence of non-exposure. 38 C.F.R. § 3.309(e). For Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, exposure to an herbicide agent shall be presumed, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Prior to January 1, 2020, service in the Republic of Vietnam included service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). A Veteran had to demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service. 38 C.F.R. § 3.307(a)(6)(iii) (2016); VAOPGCPREC 27-97 (1997), 72 Fed. Reg. 63604 (1997). In addition, prior to January 1, 2020, the regulations extended the presumption of in-service herbicide exposure to certain Veterans who served in Korea as part of a unit that, as determined by the Department of Defense, operated near the Korean DMZ (in an area where herbicide agents were known to have been applied) between April 1, 1968 and August 31, 1971. 38 C.F.R. § 3.307(a)(6)(iv). During the pendency of this appeal, 38 U.S.C. § 1116, the statute pertaining to the presumption of in-service herbicide exposure, was revised pursuant to P.L. 116-23, § 3(a), 133 Stat. 969 (added June 25, 2019). Effective January 1, 2020, 38 U.S.C. § 1116B also added regarding the presumption of herbicide exposure for veterans who served near the Korean DMZ. Under 38 U.S.C. § 1116B, the presumption of herbicide exposure extends to a veteran who, during active military, naval, or air service, served in or near the Korean DMZ during the period beginning on September 1, 1967 and ending on August 31, 1971. See 38 U.S.C. § 1116B (in effect from January 1, 2020). In essence, 38 U.S.C. § 1116B extended the date range for application of the presumption of herbicide exposure to veterans who served along the DMZ during the Vietnam era, which previously did not begin until April 1, 1968; and, the new code does not contain the language "as part of a unit that, as determined by the Department of Defense" in regard to determining whether the Veteran served near the Korean DMZ. Compare 38 C.F.R. § 3.307(a)(6)(iv) with 38 U.S.C. § 1116B. Initially, the Veteran has a current disability of ischemic heart disease. Specifically, VA treatment records show a diagnosis of coronary artery disease. See, e.g. VA pulmonary consult note dated April 2017. As so, the first element of the service connection claim is met, and the dispositive issue in this case is whether the Veteran's coronary artery disease is related to service. Ischemic heart disease, which includes coronary artery disease, is one of the listed diseases for which a presumption of service connection applies based on herbicide exposure. 38 C.F.R. § 3.309(e). In light of the Veteran's diagnosis of coronary artery disease, service connection is thus warranted if the Veteran is found to have been exposed to Agent Orange in service, including on a presumptive basis. Military Personnel Records show that the Veteran was stationed in Korea, with Company A of the 728th Military Police Battalion (728th MP Bn), from May 1967 until May 1968. See Record of Assignments. The record contains buddy statements from three individuals, each received in October 2014, concerning the Veteran's asserted duties on or near the DMZ. A letter from D.B. indicates that D.B. served alongside the Veteran in Korea. In the letter, D.B. indicated that the Veteran was on escort duty to numerous areas within the DMZ, "near the border." D.B. further indicated that while he, himself, was present near the DMZ on numerous occasions, the Veteran was "in and out of [the DMZ for his] whole tour." A letter from S.M. indicates that the Veteran served with S.M.'s deceased husband, D.W. In the letter, S.M. recalled conversations between the Veteran and D.W. in which they discussed their "daily" trips to the DMZ during service. A letter from the Veteran's relative, C.A., indicates that C.A. traveled to Seoul in December 1967, to visit the Veteran. While in Korea, C.A. visited the Veteran while he was on base (in Inchon), including staying overnight and using the base facilities available to him. C.A. reported that while he was on base, the Veteran "drove an escort truck to the DMZ on a daily basis," which he "witnessed [] personally." A July 2017 Defense Personnel Records Information Retrieval System (DPRIS) response from the Joint Services Records Research Center (JSRRC) notes the following: We coordinated our research with the National Archives and Records Administration (NARA) in College Park, Maryland. They were unable to locate 1967 unit records submitted by the 728th Military Police Battalion (728th MP Bn). Therefore, we reviewed the 1968 unit history and the 1942-1969 battalion history submitted by the 728th MP Bn. The histories document that Company A (Co A), 728th MP Bn, was stationed in the ASCOM District, Inchon, Korea. Co A was responsible for the enforcement of military laws, order, traffic circulation, protection of military property, and the operation of check points. We also reviewed the 1967 and 1968 chronologies submitted by the Eighth United States Army, the higher headquarters of the 728th MP Bn. However, the histories and chronologies do not document the use, storage, spraying, or transporting of herbicides. In addition, the histories and chronologies do not document any specific duties performed by members of Co A, 728th MP Bn along the Demilitarized Zone (DMZ) during the time period specified in the claim for [the Veteran]. JSRRC has determined that based upon the negative response from DPRIS, exposure to Agent Orange was not conceded. In July 2017, the RO issued an amendment to the January 2015 Formal Finding. In the amended finding, the RO set out the steps taken to determine whether the Veteran was exposed to Agent Orange during service, which included review of the Veteran's Military Personnel Records and the July 2017 JSRRC report. The RO found that the Veteran was not exposed to herbicides during service; such finding was made upon applying internal VA guidance set forth in Regulation M21-1MR IV.ii.2.C.10.p. to the evidence in the Veteran's file. In May 2021 correspondence, the Veteran reported "I ran supplies back and forth from the DMZ many times as an MP. I really like[d] the job and [] asked my superior if I could do the run on a regular basis, and he agreed." In sum, the record contains the Veteran's own reports that he routinely traveled within the DMZ, while on escort duty as MP; lay statements from a purported fellow servicemember and a widower of another former servicemember, each of which suggests that the Veteran has consistently described his duties in service as including escort trips that took him within the DMZ; and a statement from the Veteran's relative, C.A., stating that he personally witnessed the Veteran leave to travel to the DMZ. The Military Personnel Records corroborate the Veteran's reports that he served as an MP while stationed at ASCOM District, Inchon, Korea, from May 1967 to July 1968. Moreover, there is nothing in the record that would draw into question the Veteran's credibility concerning his assertions of trips to the DMZ. Importantly, while the July 2017 Administrative Decision reflects that the Veteran's trips into the DMZ could not be corroborated, such finding does not conflict with the Veteran's assertions. Specifically, the absence of evidence in the Military Personnel Records simply reflects an absence of documentary evidence to corroborate the Veteran's assertionsnot an affirmative finding that the Veteran was not within the DMZ during service. Moreover, the decision was issued before 38 U.S.C. § 1116B came into effect on January 1, 2020. Under 38 U.S.C. § 1116B, there is no requirement that service within the DMZ be based on whether an entire unit's location was proximate to the DMZ as "determined by the Department of Defense." Thus, the July 2017 Administrative Decision is not outcome determinative in the instant case, particularly because that decision was issued on the basis that the Department of Defense could not verify that the Veteran's particular unit served within the Korean DMZ. When all doubt is resolved in the Veteran's favor, and absent any affirmative evidence to the contrary, the Veteran's reports that he was present on or near the Korean DMZ as part of his in-service duties are probative. When viewed along with the Veteran's personnel records and statements, the lay statements from D.B., S.M., and C.A. provide contextual support for the Veteran's account of his time in Korea, to include trips to the Korean DMZ. Without any reason to dispute the credibility of the authors, and because each statement is generally consistent with the Veteran's personnel records and accounts of his time in Korea, those statements also carry probative value regarding whether the Veteran was within the Korean DMZ during service. In light of the above, the weight of the evidence supports a finding that the Veteran was in or near the Korean DMZ during the time period covered by the presumption of herbicide exposure in Korea. Thus, he is entitled to the presumption of herbicide exposure as a result of his service in Korea. Accordingly, the Veteran's ischemic heart disease is presumed to be due to the Veteran's in-service herbicide exposure, and service connection for ischemic heart disease is warranted. 38 U.S.C. § 1116B; 38 C.F.R. § 3.309(e). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.