Citation Nr: 21070552 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 21-00 399 DATE: November 24, 2021 ORDER Entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT The probative evidence of record indicates that the Veteran's heart disability is not related to an in-service injury, event, or disease, and the evidence is insufficient to establish service in the Republic of Vietnam or the enumerated land or water areas for the purpose of presumptive service connection. CONCLUSION OF LAW The criteria for service connection for a heart disability, to include as due to exposure to herbicide agents have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Navy from June 1964 to November 1966. In September 2021, the Veteran testified before the undersigned Veterans Law Judge at a Virtual hearing. A copy of the transcript has been associated with the claims file. 1. Service connection for a heart disability, to include as due to exposure to herbicide agents The Veteran contends that his heart disability is due to his period of service. Specifically, the Veteran contends that he has an ischemic heart condition that is due to exposure to herbicides during service. The Board concludes that, while the Veteran has a diagnosis of a heart disability, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of a heart disability began during service or is otherwise related to an in-service injury, event, or disease, to include as due to exposure to herbicide agents. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents. In the case of such a veteran, service connection for certain disorders, such as ischemic heart disease, will be rebuttably presumed if they are manifest to a compensable degree at any time after service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). This presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d). In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea, in or near the DMZ, between September 1, 1967 and August 31, 1971, actual exposure to herbicides must be verified through appropriate service department records or other sources for the presumption of service connection for an herbicide-related disease to be applicable. On January 1, 2020, the Blue Water Navy Act went into effect, extending the existing presumption of herbicide exposure under 38 U.S.C. § 1116, to include Veterans who served "offshore of the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975." 38 U.S.C. § 1116A. It defines "offshore" as a geographical area "not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting" eleven points of latitude and longitude listed in an included table. Id. Turning to the evidence, in September 2017, the Veteran submitted an article noting that the Veteran's ship was in the Gulf of Tonkin as part of an air strike force against North Vietnam. The Veteran also submitted a copy of an October 1966 military personnel record noting that he is eligible for a Vietnam Service Medal for operations in the Southeast Asia area of operation in support of military operations in Vietnam. In a January 2021 Records Research Response, the Joint Services Records Research Center (JSRRC) stated that all development had been exhausted and based on all the evidence, the Veteran did not set foot in the Republic of Vietnam. The JSRRC noted that the Veteran is alleging that his ship entered the territorial waters of the Republic of Vietnam. The JSRRC was requested to perform research to determine if there is any other evidence documenting entry into the territorial waters of the Republic of Vietnam, noting that the Veteran was aboard the USS Franklin D Roosevelt from May 21, 1965 to November 15, 1966. The JSRRC explained that the Veteran's ship, the USS Franklin D Roosevelt CVA 42, did not travel up the inland waterways of the Republic of Vietnam based on the evidence of record in the claims folder. The JSRRC also noted that the Veteran's ship, the USS Franklin D Roosevelt, was not in the territorial waters of the Republic of Vietnam based on the evidence of record in the claims folder and the deck log coordinates, which were included with the response. The JSRRC determined that there is no other evidence of exposure to herbicide agents in the claims folder. In a February 2021 VA memorandum, VA determined that exposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. In March 2021, the Veteran submitted pictures of his ship out at sea. The photographs denote burial at sea, incoming helicopter, combat launch strike, and defense posture. In March 2021 correspondence, the Veteran asserted that he was exposed to herbicide agents during his period of service. The Veteran stated that records reflect that the ship he served on was in official waters of the Republic of Vietnam during the following periods: July 30, 1966, August 9, 1966 to September 12, 1966, October 3, 1966, October 19, 1966 to November 14, 1966, November 24, 1966 to December 28, 1966 and January 20, 1967. The Veteran further asserted that his disability directly resulted from exposure to tactical herbicides used during the Vietnam War. At a September 2021 Board hearing, the Veteran reported that during service, he served on the USS Franklin D. Roosevelt. The Veteran stated that planes were constantly taking off and landing on the flight deck. The Veteran asserted that the planes were contaminated with herbicide agents. The Veteran reported that the planes would drop to de-foliate all the coastal lands. The Veteran went on to state that the planes came back covered with "invisible" dust. The Veteran noted that the people on the deck, such as handlers, would be covered as well. The Veteran stated that he would be on the flight deck on occasion, touching the planes and pushing the planes. The Veteran reported that the planes returned from missions in Vietnam. The Veteran stated that his MOS duties were to print up all the runs for the planes for their targeting. He stated that while he was not asked to help with the planes, everyone was expected to help. He noted that he also had duties watching the smoke stack, which required touching all the pipes and ladders that were covered with the dust. The Veteran further reported that breezes would blow a cloud of mist from the land to over the ocean. The Veteran stated that he could not remember exactly how far inland they were, but he did assert that the ship was close enough to fall within the Blue Water Act. After review of the record, the Board finds that the evidence is insufficient to establish service in Vietnam or the enumerated waterways during the enumerated period such that presumptive service connection would be warranted. The Board acknowledges the Veteran's award of the Vietnam Service Medal. However, the medal is not dispositive of qualifying service in Vietnam for the purpose of presumptive service connection. Likewise, although the Veteran asserts that his ship served in the official waters of the Republic of Vietnam, the probative evidence of record does not show that the Veteran's ship served in the inlands or entered territorial waters within 12 nautical miles such that exposure would be presumed under the Blue Water Navy Vietnam Veterans Act. The JSRRC stated that the records do not establish that the Veteran's ship of service traveled up the inland waterways of the Republic of Vietnam or in the territorial waters of the Republic of Vietnam. The JSRRC records are extensive and the most credible source of information regarding the navigation of the ships. Therefore, the Board finds the JSRRC response to be highly probative in nature. To the extent that the Veteran asserts exposure to herbicides based on interaction with aircraft carrying herbicides, the Board notes there is no official documentation of working with C-123 aircraft that results in a presumption of exposure to herbicide agents, such exposure may be established on a facts-found basis. See 38 U.S.C. § 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, presumptive exposure to herbicide agents through interaction with aircraft has not been established. The lack of a presumption does not mean that the disability, in this case a heart disability, cannot be granted on a direct causation basis, to include if it were shown that the Veteran in this case has his disability due to his period of service. See Palovick v. Shinseki, 23 Vet. App. 48 (2009); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, here, the evidence for service connection on a direct basis is also insufficient. The Veteran's records do not indicate an in-service complaint of or treatment for a heart condition. Moreover, the JSRRC also concluded that there is no other evidence of exposure to herbicide agents based on the file. The Board notes that though the Veteran submitted a June 2017 private opinion regarding his heart disability, the opinion relies on an in-service incurrence of exposure to herbicide agents, which has not been established in this case. Therefore, service connection for a heart condition on a direct basis is not warranted. The Board has considered the Veteran's statements linking his current heart disability to his service. While it is in error to categorically reject layperson nexus evidence as incompetent, the Board is allowed to consider the facts of a particular case to determine the layperson's competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). In this regard, the Board notes the Veteran is competent to report symptoms experienced in service and since such time. However, the Veteran is not competent to attribute his current condition to any instance of military service. He has not demonstrated that he is an expert in determining the etiology of heart disabilities and is a layperson in this regard. In conclusion, a preponderance of the evidence is against the claim for service connection for a heart disability on a direct basis or on a presumptive basis as an herbicide-related disease pursuant to 38 C.F.R. §§ 3.307, 3.309. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.