Citation Nr: 21073767 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 19-36 186 DATE: December 10, 2021 ISSUE Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. ORDER Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The evidence of record establishes that the Veteran was presumptively exposed to herbicide agents during his active service, and his diagnosed ischemic heart disease is presumed to have been caused by his herbicide agent exposure in service. CONCLUSION OF LAW The criteria for entitlement to service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from September 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this Veteran was denied service connection for ischemic heart disease in a November 2016 rating decision. In September 2017, the Veteran requested reconsideration of the November 2016 rating decision based on the claim of exposure to Agent Orange. In a November 2017 rating decision, the claim of service connection for ischemic heart disease remained denied. See November 14, 2017 Rating decision. The Veteran filed a November 2018 Notice of Disagreement (NOD) with the November 2017 rating decision and perfected his appeal following issuance of the September 2019 Supplemental Statement of the Case (SSOC) in November 2019. As the Veteran sought reconsideration of the November 2016 rating decision and new and material evidence in the form of additional medical records and a new theory of entitlement was received within one year of the November 2016 rating decision, the Board finds that the November 2016 rating decision did not become final. See 38 C.F.R. § 3.156 (b). See also, September 15, 2017 VA Form 21-526EZ re: entitlement to service connection for ischemic heart disease related to Agent Orange. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. The Veteran contends that his currently diagnosed ischemic heart disease results from his exposure to Agent Orange while on temporary duty at the Da Nang, Air Base in Vietnam. 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; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A Veteran who during active military, naval, or air service served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the Veteran was not exposed to any such agent. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6). To benefit from the presumption of service connection for diseases associated with herbicide agent exposure, the Veteran must have one of the diseases enumerated in 38 C.F.R. § 3.309 (e), which includes ischemic heart disease. 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 claimant 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, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107 (b). Discussion As outlined above, the Veteran contends that his currently diagnosed ischemic heart disease results from his exposure to Agent Orange while on temporary duty at the Da Nang, Air Base in Vietnam. See January 11, 2018 Correspondence. The Veteran has been diagnosed with ischemic heart disease. See August 5, 2016 treatment records re: diagnosis of coronary artery disease (ischemic heart disease). As will be explained below the Board finds that, upon resolving reasonable doubt in his favor, the Veteran has demonstrated that he had in-country service in the Republic of Vietnam. In January 2018 correspondence, that Veteran alleged that as part of his assigment to the Naval Air Squadron VAP-61 from 1967 to 1968, he had detachments from Guam to the Philippines, Thailand and Vietnam. The Veteran reported that his main base was at the Naval Air Station in Agana, Guam. See Military Personnel Record (Heavy Photographic Squadron Sixty- One (VAP-61) N.A.S. Agana, Guam (Administrative Remarks). In this January 2018 correspondence, the Veteran reported that he was temporarily assigned to (1) the Don Muang airport in Bangkok, Thailand (2) the Da Nang Air Base in Vietnam and (3) the Naval Air Station, Cubi Point, Republic of the Philippines. The Veteran reported that he was assigned to all three Air stations at approximately 6-week intervals. See January 11, 2018 Correspondence (Receipt Date, November 9, 2018): See also, February 5, 2020 Third Correspondence re: rotating detachments, pg. 2. The Board notes that Veteran's DD-214 shows that he served in the Navy as an electrician. See DD-214 (Related Civilian Occupation). The Veteran's personnel records confirm that from 1967 to 1968 he was assigned to the Naval Air Squadron VAP-61. See Military Personnel Record (VAP-61, Heavy Photographic Squadron 61: October 1967 April 1968). In further support of his claim, the Veteran submitted a photograph of himself which he alleged was at the side of a bunker in Da Nang, Vietnam. Additionally, the Veteran submitted a postcard with a picture of the River of Saigon from the Majestic Hotel in Saigon. The Veteran reported that he sent this postcard to his mother while in Vietnam wherein he highlighted his return address: Det. DA c/o 1st MAW. The Veteran explained in his January 2018 correspondence that Det. DA was an abbreviation for "detachment DA-Nang c/co 1st MAW". Moreover, the Veteran submitted a copy of his "short-timers" calendar for 1968 while in Vietnam. The title of the document also contained the abbreviation "Det, DA". See also, November 12, 2018 Correspondence (Buddy Lay Statement). Further, in support of his claim, the submitted a copy of a combat pay statement from December 1967. See June 10, 2016 Correspondence; See also February 5, 2020 Third Party Correspondence. DPRIS Findings Findings submitted by the Defense Personnel Records Information Retrieval System (DPRIS) report, in pertinent part, the following: "The 1968 command history for Heavy Photographic Squadron Sixty-One (VAP-61) records the unit had aircraft operating from Cubi Point, Republic of the Philippines (RP) and Da Nang, (RVN). No names are recorded as to who was where. There is nothing recorded that states the unit was also aboard the USS Oriskany. However, the Deployment for Carriers and Carrier Based Squadrons in the Western Pacific (West Pac) and Vietnam (1964) records a Detachment form VAP-61 was aboard USS Oriskany from June 16, 1967 to January 31, 1968 with continued support of 7th Fleet carriers on Yankee Station. However, the squadron's report does not identify the detachments deployed aboard carriers in WESTPAC during 1968." See October 14, 2016 DPRIS Correspondence. Analysis The Board observes that the DPRIS report does note that the 1968 command history for Heavy Photographic Squadron Sixty-One (VAP-61) records the unit had aircraft operating from Cubi Point, Republic of the Philippines (RP) and Da Nang, Republic of Vietnam (RVN). This is consistent with the Veteran's lay statements. The Veteran's personnel records confirm that from 1967 to 1968 he was assigned to the Naval Air Squadron VAP-61. See Military Personnel Record (VAP-61, Heavy Photographic Squadron 61: October 16, 1967 April 16, 1968; See also, Military Personnel Record (Heavy Photographic Squadron Sixty- One (VAP-61) NAS Agana, Guam (Administrative Remarks). The Board is cognizant however that this same report indicates that no names are recorded as to who was where. The Board finds that the DPRIS Report (which at best is inconclusive with respect to the location of the Heavy Photographic Squadron Sixty-One (VAP-61) in 1968), when combined with Veteran's cumulative evidence, i.e., post-card with the abbreviation of "Det, DA", photograph of the Veteran allegedly sitting next to a bunker in Vietnam, "short-term calendar" with the abbreviation "Det, DA", record of combat pay and lay statement as to his location while assigned to VAP-61, with consideration of the circumstances of the Veteran's service, that there is sufficient evidence to resolve the question of in-country service in the Republic of Vietnam in the Veteran's favor. Otherwise stated, in view of the cumulative evidence outlined above, the Board finds that the evidence of record establishes that the Veteran was presumptively exposed to herbicide agents during his active service, and his diagnosed ischemic heart disease is presumed to have been caused by his herbicide agent exposure in service. When a veteran is diagnosed with ischemic heart disease and is presumed to have been exposed to herbicide agents during service in Vietnam, service connection will be granted unless there is clear evidence to the contrary, which is not present here. As it is now conceded that the Veteran had service in the Republic of Vietnam, it is presumed that he was exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). As such, the criteria for service connection for ischemic heart disease have been met, and the Veteran's claim is granted. (Signature on next page.) Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.