Citation Nr: 21075494 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-16 298 DATE: December 20, 2021 ORDER Entitlement to service connection for a heart disability, to include as secondary to herbicide exposure, for accrued benefits purposes, is denied. FINDINGS OF FACT 1. The Veteran had a diagnosis of ischemic heart disease (IHD). 2. The Veteran did not serve in Vietnam or in the 12 nautical miles surrounding Vietnam. There is no evidence of in-service herbicide exposure. 3. The Veteran's heart disease did not begin in service and was not related to a disease, injury, or event in service. CONCLUSION OF LAW Ischemic heart disease was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1965 to September 1969. He died in December 2016. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. 38 U.S.C. § 5121A (a). Here, the Veteran died in December 2016. At the time of his death, the Veteran had filed a notice of disagreement with the September 2013 rating decision. In January 2017, his surviving spouse filed her application for substitution of claimant upon death of claimant. In March 2017, the appellant's request for substitution was granted. See 38 U.S.C. § 5121A (a)(1). Therefore, the Board finds that the appellant has been properly substituted as the claimant for purposes of processing the Veteran's claim to completion. In February 2020, the appellant testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing. A copy of the transcript has been associated with the Veteran's electronic claims folder. In April 2020, the Board remanded several matters, including the issues of entitlement to service connection for a bilateral hearing loss disability and tinnitus. In May 2021 and October 2021 rating decisions, the RO granted the Veteran's claims. This represents a total grant of the benefits sought and therefore those matters are no longer on appeal. Entitlement to service connection for a heart disability, to include as secondary to herbicide exposure, for accrued benefits purposes The Veteran previously contended that he was entitled to service connection for a heart disability, including IHD, because he served in the territorial waters of Vietnam while aboard the USS Ticonderoga and Oriskany. See September 2012 VA Form 21-626b; January 2014 VA Form 21-4138. The appellant testified at the Board hearing that she provided the dates of the Veteran's ship logs to determine the longitude and latitude measurements for the purposes of determining whether there was a presumption of herbicide exposure. See Board Hearing Transcript, pp. 9-10. For the reasons explained below, the Board finds that entitlement to service connection is not warranted. If a veteran was exposed to Agent Orange during active service, presumptive service connection is warranted for certain specified diseases, including ischemic heart disease. 38 C.F.R. §§ 3.307, 3.309. A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, "unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Recently, in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) the United States Court of Appeals for the Federal Circuit (Federal Court) held that the statutory phrase "the Republic of Vietnam" includes the 12 nautical mile territorial sea of that nation. Procopio, 913 F.3d. at 1375-76. By extension, the presumption of herbicide agent exposure extends to those veterans with service in the territorial sea of the Republic of Vietnam. The Board further notes that, on June 25, 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019, which extends the presumption of exposure to herbicide agents to those veterans who served within the 12 nautical miles of Vietnam. Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019). In April 2020, the Board remanded the matter to obtain clarification regarding the Veteran's proximity to Vietnam while serving aboard the USS Ticonderoga and Oriskany. In January 2021, the RO obtained logbooks from the USS Ticonderoga. One deck log indicates that on July 1, 1968, the USS Ticonderoga operated at the Northern Coast of Vietnam. Longitudinal and Latitudinal positions were provided. A Records Research Response memo indicated that the Veteran possibly served aboard the USS Ticonderoga from October 15, 1966 to May 29, 1967 and from December 28, 1967 to August 17, 1968. However, the memo concluded that there was no evidence to support documentation of the claimed exposure. A September 2021 memo further demonstrated the USS Ticonderoga and Oriskany's positions points and included a map of the USS Ticonderoga and Oriskany's position on specific dates. The memo concluded that the Veteran did not serve in Blue water (within 12 nautical miles of Vietnam). This evidence leads to the conclusion that the Veteran did not serve on a ship that was within Vietnam's territorial waters and was not otherwise in Vietnam, so was not in fact exposed to herbicides during service to be eligible for presumptive service connection based on herbicide exposure under 38 U.S.C. § 1116 and §§ 3.307(a)(6), 3.309(e). Notwithstanding the foregoing presumption provisions for herbicide exposure and chronic disease, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 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; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Here, there is competent and credible evidence that the Veteran had a current disability - specifically a diagnosis of IHD. As an initial matter, the Board finds that there is no probative and credible evidence of an in-service incurrence of any condition or injury affecting the Veteran's heart during service. See January 2014 VA Form 21-4138 ("I was diagnosed with ischemic heart disease Sept. 5, 2013.") Rather, the Veteran contends that he was exposed to herbicide agents during service and relates such exposure to his subsequently developed heart disability. However, as noted above, there is no competent evidence which indicates that the Veteran was exposed to such agents. Here, the evidence demonstrates that the Veteran developed IHD over 40 years after his separation from service. The Board additionally notes that a significant lapse in time between service and the post-service documentation of a disability is a factor that tends to weigh against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Further, there is no competent evidence or opinion that even suggests that an etiological relationship exists between the claimed disability and service. The Board has considered the Veteran's statements regarding the etiology his IHD. A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran has not asserted, nor has the evidence shown, that he is qualified and/or competent to give a medical opinion regarding a diagnosis or the etiology of his IHD. Indeed, the Veteran related his IHD to what he believed was in-service herbicide exposure, which the RO concluded he did not have. (Continued on next page.) Accordingly, the Board finds that the preponderance of the evidence is against the claim; therefore, the benefit-of-the-doubt standard of proof does not apply. Service connection is not warranted for a heart disability. 38 U.S.C. § 5107 (b). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Baskerville 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.