Citation Nr: 21072002 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-26 806 DATE: December 2, 2021 ORDER Entitlement to service connection for a heart disability, to include coronary atherosclerotic disease, to include as due to herbicide exposure, is granted. FINDINGS OF FACT 1. The Veteran's military personnel records placed him on the USS White Plains from September 1968 to September 1970, with Navy records placing that ship in territorial waters of the Republic of Vietnam from September 1969 to February 1970, and thus there is a presumption that he was exposed to herbicide agents while serving on active duty. 2. The Veteran has a current diagnosis of coronary atherosclerotic disease. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, coronary atherosclerotic disease was incurred as a result of service. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1968 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) from a March 2015 rating decision, with notification to the Veteran in April 2015, of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran, as a layperson, is not competent to distinguish between competing cardiac-related diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Veteran's original claim for service connection for a heart condition has been expanded to include his other diagnosed cardiac conditions disorders, specifically coronary atherosclerotic disease. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in August 2021. A transcript of that hearing is of record. The Board notes this appeal originated under the legacy appeal system when initially claimed in July 2014. On June 25, 2018, in the course of the appeal, the Veteran submitted a Rapid Appeals Modernization Program (RAMP) form, attempting to transition to the modernized system of appeals known as the AMA, but it was not signed, not by either the Veteran or his representative. VA contacted the Veteran to ascertain his intent, but never received a properly signed RAMP opt-in within the requisite 60 days, and as such, this appeal will continue to be handled in accordance with legacy procedures. The Board also notes the presence of a separate and partially duplicating rating decision originating from a December 2018 claim that was adjudicated under procedures of the modernized system of appeals. That claim for service connection included an issue of a heart disability, an issue that is currently under the Board's jurisdiction and was part of an original claim by this Veteran from July 28, 2014 and adjudicated by the RO back in April 2015. The Veteran had filed a notice of disagreement with that rating decision, and a formal appeal to the Board was made on May 11, 2017 via a Form 9, and certified by the Board on June 4, 2017. The Board has had jurisdiction of the service connection heart disability since that time, and notes also that claim is also first in time, compared to the more recent claim adjudicated in error by the RO. As such, the Board will continue to adjudicate that original claim as appealed by the Veteran to the Board under the legacy procedures in effect for this appeal. Given that the appeal results in a full grant of the Veteran's original claim, the Board finds there is no prejudice in this error by the RO and will proceed with the discussion of this appeal. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2021). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Finally, service connection can also be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). For the purposes of determining herbicide agent exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed. Id. 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). The presumption is rebuttable. 38 C.F.R. § 3.307(d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Such exposure to an herbicide agent can be presumed if the Veteran served on land within the Republic of Vietnam or had "brown water" service. See Haas v. Peake, 525 F.3d 1168, 1192-93 (Fed. Cir. 2008); 38 C.F.R. § 3.307(a)(6)(iii). "Brown water" service includes service aboard a ship that: 1) served on the inland waterways of Vietnam; 2) went ashore while his or her ship was operating in Vietnam's close coastal waters; or 3) docked in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In addition, and since the origination of this claim, pursuant to the "Blue Water Navy Vietnam Veterans Act of 2019," the presumption of herbicide agent exposure now applies to Veterans who served within the 12-mile territorial waters of Vietnam. Pub. L. 116-23 (Jun. 25, 2019); see 38 U.S.C. § 1116A (2021); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019); VAOPGCPREC 3-2019 (Dec. 13, 2019). Here, the Board notes the Veteran's naval service aboard the USS White Plains within the appropriate time period, and also that ship was in areas of both "brown water" and "blue water" pursuant to Navy records, to include the harbors and docks of Da Nang, Vung Tau, and Cam Ranh Bay, Republic of Vietnam. While there is no evidence the Veteran himself went ashore, and he has not claimed as such, the Board finds the evidence does establish that the Veteran was present aboard ship within territorial waters of the Republic of Vietnam for the purposes of presumptive herbicide exposure. As such, VA concedes herbicide agent exposure for this Veteran. See 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. §§ 3.307(a), 3.309(e). The diseases associated with herbicide exposure for purposes of the presumption include certain cardiac diagnoses of ischemic heart disease (including, but 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). 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e); see 78 Fed. Reg. 54763 (Sept. 6, 2013). If the veteran was exposed to an herbicide agent during active service, diabetes 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. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Proof of a current disability is a threshold to establishing service-connection for any claimed disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to service connection for coronary atherosclerotic disease, to include as due to herbicide exposure Given that herbicide exposure for the Veteran has been conceded, the remaining issue at hand is whether an appropriate diagnosis of an eligible condition exists for the Veteran. The Veteran's assertion with his original claim included his own statements along with that of fellow shipmates that attested to the presence of drums of Agent Orange aboard ship that were transported from Subic Bay in the Philippines abord the Veteran's ship to ports in Vietnam. Because the Veteran qualifies for herbicide exposure via the previously discussed "brown water" and "blue water" legal procedures, the Board need not reach an analysis of the Veteran's original statements regarding the possible presence of drums of Agent Orange aboard ship. The Board notes the statements of the Veteran and his buddies included in the claims file, and also the other historical Board decisions from other Veterans and their appeals that this Veteran submitted. The Board notes that an individual Board decision is binding only on the appeal considered, and as such, cannot be guided by the other Board decisions submitted by the Veteran. 38 C.F.R. § 20.1303. The list of heart-related disabilities eligible for service connection via herbicide exposure is outlined in VBA Training Letter 10-04, dated February 10, 2011. Per the training letter, according to Harrison's Principles of Internal Medicine (Harrison's Online, Chapter 237, Ischemic Heart Disease, 2008), ischemic heart disease is a condition in which there is an inadequate supply of blood and oxygen to a portion of the myocardium; it typically occurs when there is an imbalance between myocardial oxygen supply and demand. Therefore, for purposes of this regulation, 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. (Emphasis added.) Since the term refers only to heart disease, it does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. Here, the Board notes VA medical records from February 2017 from the Veteran's local VA medical center that discuss the Veteran's cardiac condition, and a periodic examination by a VA physician notes a diagnosis of coronary atherosclerotic disease, a qualifying ischemic heart disease per the VBA Training Letter 10-04 as mentioned above. The Board acknowledges the presence of a VA heart conditions examination from April 2020 that has multiple diagnoses for the Veteran's complex display of cardiac and cardiopulmonary disabilities, but not one of the same diagnosis of the earlier coronary atherosclerotic disease that was listed by name as a qualifying ischemic heart disease. However, the Board notes the requirement for a current qualifying disability is satisfied when a Veteran has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve or alter prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (emphasis added); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013). The Board also notes that April 2020 examination contained no opinion for service connection, and as such, the Board finds that April 2020 examination to have probative value only as to the Veteran's current medical conditions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). (CONTINUED ON NEXT PAGE) As exposure to herbicide agents is established, the Veteran is therefore entitled to service connection for coronary atherosclerotic disease on a presumptive basis pursuant to 38 C.F.R. § 3.309(e). Accordingly, the Veteran's claim of entitlement to service connection for coronary atherosclerotic disease is granted. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, Counsel 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.