Citation Nr: 21072328 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-06 809 DATE: December 2, 2021 ORDER New and material evidence has been received sufficient to reopen a previously denied claim of service connection for hypertension, and the appeal is granted to this extent only. Entitlement to service connection for coronary artery disease (CAD) is granted. REMANDED Entitlement to service connection for hypertension, as secondary to coronary artery disease, is remanded. FINDINGS OF FACT 1. In a May 2010 rating decision, the Veteran's claim of entitlement to service connection for hypertension was denied. The Veteran did not timely perfect an appeal of this decision, and it became final. 2. The evidence of record is new and material evidence sufficient to reopen the previously denied claim of service connection for hypertension. 3. The evidence shows the Veteran's diagnosis and treatment for CAD and offers credible evidence to support the Veteran's contention that he was exposed to herbicide agents during his period of service at Takhli Royal Thai Air Base (RTAB). CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of service connection for hypertension. 38 U.S.C. §§ 5103, 5103A, 5107, 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for coronary artery disease (CAD) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from January 1967 to January 1971, with service at the Takhli Royal Thai Air Base between April 1968 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) from a February 2015 rating decision. In August 2021, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In May 2010, the Veteran was initially denied service connection for hypertension. He filed a notice of disagreement (NOD) with the decision in December 2010 and received a statement of the case (SOC) from the VA in January 2014. In June 2014, the Veteran filed a VA Form 9, to bring the claim before the Board. In July 2014, the VA issued a letter, informing the Veteran that his VA Form 9 was not timely, as it was not filed within 60 days after the issuance of his SOC. 38 C.F.R. §§ 19.52(b)(1), 20.1103. Therefore, no appeal was found to be pending. In September 2014, the Veteran filed a new claim for entitlement to service connection for coronary artery disease and a claim to reopen his service connection claim for hypertension as secondary to CAD. 1. New and material evidence has been received sufficient to reopen a previously denied claim of service connection for hypertension Generally, a claim that has been denied in an unappealed agency of original jurisdiction (AOJ) decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly received evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App.110. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App.510, 513 (1992). Regardless of the AOJ's actions, given the previous denial of the claims on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As noted above, the claim for hypertension was originally denied in a May 2010 rating decision. The determination was based on the finding by the VA that the Veteran's hypertension was not treated or diagnosed until around 2005 or 2006, almost 30 years after service. The VA also evaluated the claim on a presumptive basis and found no evidence showing the condition manifested to a compensable degree within one year of discharge. The Board finds the evidence submitted after the May 2010 rating decision to be sufficient to reopen the previously denied claim. The evidence includes consistent VA treatment records that show diagnosis and treatment of the Veteran's hypertension. Records from the St. Louis VA Medical Center (VAMC) were also entered into evidence, showing the Veteran had a cardiac angioplasty and noting the Veteran's previous diagnosis of hypertension. The Veteran also submitted credible lay statements claiming that his military occupational specialty caused him to perform duties near the perimeter of the Takhli Royal Thai Air Base, which exposed him to herbicide agents. Due to the fact that the Veteran raised a new theory of entitlement for his hypertension (secondary to CAD), the Board finds this evidence to be new and material, sufficient to reopen the Veteran's claim of service connection for hypertension. The appeal to reopen the Veteran's claim is granted. Service Connection 2. Entitlement to service connection for coronary artery disease (CAD) The Veteran contends he is due entitlement to service connection for his coronary artery disease. Specifically, the Veteran argues that his coronary artery disease is due to exposure to herbicide agents while working near the perimeter as part of his duties while stationed at the Takhli Royal Thai Air Base in Thailand. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. VA laws and regulations provide that if a veteran was exposed to an herbicide agent during service, certain listed diseases, including coronary artery disease, are presumed to be related to that herbicide exposure, and absent affirmative evidence to the contrary, service connection is granted on a presumptive basis. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA initially interpreted the applicable regulation to mean that the presumption of service connection applies to those service members who physically set foot in Vietnam. See Haas v. Peake, 544 F.3d 1306, 1308 (Fed. Cir. 2008). More recently, VA expanded the presumption of in-service herbicide exposure to include service in the 12 nautical mile offshore waters of the Republic of Vietnam. See 38 U.S.C. § 1116A. Additionally, the presumption of in-service herbicide exposure is also extended to certain Vietnam era veterans who served in Korea, and certain Air Force veterans who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft that were known to have been used to spray an herbicide agent during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(iv), (v). Although the presumption of in-service herbicide exposure does not extend to veterans who served in Thailand during the Vietnam era, VA now recognizes that tactical or tactical-like herbicides were used on the fenced-in perimeters of military bases in Thailand. While the Veteran is not entitled to a presumption of in-service herbicide exposure as a result of service in Thailand, due consideration is given as to whether exposure to herbicide agents can be conceded on a facts-found basis for certain veterans who served in Thailand. Exposure to herbicides on a factual basis may be extended to Veterans whose duties placed them on or near the perimeters of Thailand Air Bases during the Vietnam era, to include, as relevant in this case, Takhli Royal Thai Air Force Base. 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, performance evaluations, or other credible evidence, then herbicide exposure may be acknowledged on a facts-found or direct basis. For the following reasons, the Board grants the Veteran service connection for his coronary artery disease. VA treatment records from the St. Louis VAMC and Harrisburg community-based outpatient clinic indicate the Veteran has a diagnosis of and post-service treatment for coronary artery disease. The Veteran's service treatment records (STRs) and military personnel records indicate that he was stationed in Thailand at the Takhli Royal Thai Air Force Base from April 1968 to April 1969. In a February 2017 lay statement, the Veteran reported that as a jet engine mechanic, he was tasked with towing aircraft that needed engine work to the trim pad, which was at the end of the runway, near the perimeter of the base. In December 2017, the VA conceded that the Veteran had service at the Takhli Air Base and that his MOS was as an aircraft maintenance specialist. While the Veteran reported that he performed duties near the perimeter, VA stated that his MOS was not one associated with perimeter duties. In August 2021, the Veteran received a Board hearing with the undersigned Veterans Law Judge (VLJ). The Veteran testified in the hearing that his MOS duties included working the flight line every day, arming ammunitions, and checking for leaks on planes before takeoff, changing engines on aircrafts, towing aircrafts that needed engine changes to the trim pad at the end of the runway near the base perimeter, and spending a lot of time on the taxiway which was located close to the perimeter of the base as well. In the hearing the VLJ noted that the Veteran needed to show a currently diagnosed disease and establish exposure to herbicide agents. The Veteran's VA treatment records show a current diagnosis of coronary artery disease, and the Veteran's credible lay statements and military personnel records establish he was exposed to herbicide agents while in Thailand. The Veteran's descriptions are credible and consistent with the circumstances of his service and the evidence in his personnel record. Although the personnel records do not specifically note that the Veteran's duties required him to go to the perimeter of the base, the personnel records and lay statements show that he was stationed at Takhli during the Vietnam era. The Veteran's military specialty occupation (MOS) was aircraft maintenance specialist and included multiple activities around the airfield, which would likely include the perimeter of the base. The Veteran has credibly testified to such, and the Board sees no reason to doubt his account of his MOS duties and where they required him to be located while at Takhli. There is no affirmative evidence to explicitly contradict the Veteran's reports of being at the perimeter of the base and they are consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The overall evidence demonstrates that it was likely the Veteran served "near the perimeter" while at Takhli in performing his duties as an aircraft maintenance specialist. While the Veteran does not have the requisite service in Vietnam or Korea to warrant entitlement to the presumption of in-service herbicide exposure, he does have the requisite service in Thailand to warrant consideration of in-service herbicide exposure on a facts-found basis. The totality of the evidence in this case, the most pertinent of which is summarized above, is in relative equipoise as to whether the Veteran was exposed to an herbicide agent in Thailand. The reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran; therefore, exposure to an herbicide agent during service near the Takhli air base perimeter is conceded based on the facts found. As the Veteran has been found to have been exposed to in-service herbicides, and his diagnosed coronary artery disease is one of the listed diseases that is presumed to be due to such in-service herbicide exposure, entitlement to service connection for coronary artery disease is therefore warranted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, as secondary to coronary artery disease, is remanded. The Veteran contends that he is due entitlement to service connection for hypertension, secondary to his now service-connected coronary artery disease. As noted above, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. with the evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the Board hearing, the VLJ stated that the Veteran's hypertension would be evaluated under direct and secondary service connection theories of entitlement. The VA treatment records from the Harrisburg CBOC, Carbondale CBOC, Marion VAMC, and St. Louis VAMC all establish that the Veteran has a diagnosis of hypertension that is stable and well managed. Therefore, the Veteran has an existence of a present disability and satisfies the criteria for the first element of Wallin. Under Wallin, the Veteran also now has a service-connected disability of coronary artery disease to satisfy the second element. While there is no evidence of record establishing a nexus between the two disabilities, the Board finds that a VA examination and opinion needs to be conducted to determine if the Veteran's hypertension has been caused or aggravated by his now-service connected CAD. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his hypertension. The examiner must fully and thoroughly review the claims file, including this Board decision and remand. The examiner is asked to provide a response to the following: Is the Veteran's hypertension at least as likely as not proximately due to the service-connected coronary artery disease? Is hypertension at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected coronary artery disease? Is it at least as likely as not that the Veteran's hypertension began in service, within one year of service separation, or is otherwise related to service, to include his now conceded in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that hypertension is not on the list of diseases that are presumptively associated with exposure to herbicide agents. A full and clear rationale must be provided with each opinion offered by the examiner. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, Associate 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.