Citation Nr: 21076363 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 19-08 759 DATE: December 23, 2021 ORDER Entitlement to service connection for coronary artery disease (CAD) is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of CAD. 2. Resolving all doubt in the Veteran's favor, the Veteran is shown by competent, credible and probative evidence to have been exposed to herbicide agents in service at Korat Royal Thai Air Force Base. CONCLUSION OF LAW The criteria for service connection for coronary artery disease are met. 38 U.S.C. §§ 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1968 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) from a May 2017 decision by a Department of Veterans Affairs Regional Office (RO). This was a readjudication of the service connection claim for heart disease, which had been denied in an unappealed August 2009 rating decision. See Nehmer v. United States Veterans Administration, 284 F.3d 1158, 1161 (9th Cir. 2002). The Board notes that new and material evidence would ordinarily be required to reopen this claim. 38 U.S.C. § 5108. However, VA has issued a liberalizing regulation that creates a new presumptive basis for the grant of service connection for ischemic heart disease, Parkinson's disease, hairy cell leukemia, and chronic B-cell leukemia as secondary to herbicide agent exposure. As such, VA is to readjudicate certain previously denied claims as required by court orders in Nehmer. 38 C.F.R. § 3.816. Accordingly, the Board will adjudicate the claim on a de novo basis. See Pelegrini v. Nicholson, 18 Vet. App. 112, 125 (2004); Spencer v. Brown, 4 Vet. App. 283 (1993), aff'd 17 F. 3d 368 (Fed. Cor. 1994). The Veteran testified before the undersigned in a March 2021 Board hearing. A transcript of the hearing is of record. 1. Service connection for CAD The Veteran contends that his CAD is related to exposure to a herbicide agent in service while he was stationed in Thailand. The Board notes that the post-service treatment records establish that the Veteran has a current diagnosis of CAD. The Veteran's service records indicates that the Veteran serve at Korat Royal Air Force Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; 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, 1167 (Fed. Cir. 2004). In regard to exposure to an herbicide agent, to include Agent Orange, a veteran, who during active military, naval or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during his or her service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The VA has determined that certain diseases are associated with exposure to certain herbicide agents, including 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); 38 C.F.R. §§ 3.307, 3.309 (e). Such identified diseases shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, subject to the requirements of 38 C.F.R. § 3.307 (a)(6), 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. See 38 C.F.R. § 3.309 (e). The VA has acknowledged that herbicide agents were in some instances used in Thailand. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). The VA has determined that special consideration of herbicide exposure on a facts found or direct basis should be extended to those Veterans whose service activities involved duty on or near the perimeters of Thailand military bases because there is some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides. Thus, in the case of Veterans serving in Thailand during the Vietnam era, VA currently concedes in-service herbicide exposure for Air Force service personnel serving at specifically enumerated Royal Thai Air Force Bases (RTAFBs) but only if the Veteran's served in a military occupational specialty (MOS) with duties placing him or her at or near the air base perimeter. See Id. Specifically, the VA will concede herbicide exposure if an Air Force Veteran served on one of the enumerated air bases as an Air Force (1) security policeman, (2) security patrol dog handler, (3) member of a security police squadron or (4) otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports or other credible evidence. Notwithstanding the above, where exposure to herbicide agents may not be conceded, a veteran may establish service connection with proof of actual direct exposure to such herbicide agents. Combee, supra. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. See Bostain v. West, 11 Vet. App. 124, 127 (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, the benefit of the doubt is afforded the claimant. In May 2017, VA issued a formal finding that VA lacked the information to very herbicide exposure in Thailand. The formal finding noted that the Veteran served at Korat RTAFB from November 1972 to November 1973. In May 2017 JSRRC stated that the United States Air Force historical memorandum pertaining to installations showed no documentation or evidence showing that tactical herbicides, such as Agent Orange, were ever used on any United States Air Force installation in Thailand for vegetation control during the Vietnam era. The formal finding noted that the Veteran's military occupational specialty during his assignment to Thailand does not appear on the list for verifying exposure to herbicides in Thailand in the Vietnam era. In February 2016, the Veteran's provider stated that the Veteran had a long history of severe atherosclerosis at a young age. The provider stated that Agent Orange has been known to cause CAD. He stated further that it is not unheard but rare to develop a large burden of plaque like the Veteran was identified to have and could be related to Agent Orange exposure. In December 2016, the Veteran's supervisor while at Korat RTAFB submitted a letter in support of the Veteran's claim. The Veteran's supervisor stated that the Veteran worked on aircraft. The supervisor stated the aircraft were parked over by the perimeter road of the base, and they worked on the planes nearly every day. The supervisor stated that the Veteran lived in a hooch near the perimeter road. Further, the Veteran's supervisor stated that the Veteran was an avid runner and ran on the perimeter road 3 to 4 times a week. The supervisor noted that the Veteran was place on temporary duty assignment at Ubon and Udorn Royal Thai Air Force Bases. In December 2016, the Veteran submitted a map of Korat RTAFB and explained that he worked on airplanes that were parked near the perimeter road. The Veteran further noted that his sleeping quarters were also near the perimeter road. The Veteran stated he ran the perimeter road 3 to 4 times a week. The Veteran noted that he went in and out the base through the perimeter gates approximately 312 times. In the March 2021 Board hearing, the Veteran reiterated his previous statements that he lived near the perimeter road to include the fence line, that he ran along the fence line, and that he worked near the fence line. The Board finds that the evidence of record clearly establishes that the Veteran had active service at one of the designated Thailand AFBs. He also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicide agents were used near those air base perimeters in Thailand. In statements made in support of the claim, the Veteran stated that his duties placed him near the perimeter of the military base. The evidence from his supervisor at Korat RTAFB and the map of the base provide further corroboration of the Veteran's statements. The above lay evidence is competent and credible, and there is no directly contradictory evidence. Viewing the evidence of record in a light most favorable to the Veteran, the Board finds that this evidence is at least in relative equipoise regarding the Veteran's direct exposure to herbicide agents. The Veteran has presented competent and credible evidence showing that his work duties at Korat RTAFB frequently placed him at the perimeter of that base. As such, the Board concedes the Veteran's exposure to herbicides during his active service in Thailand. As the Board has conceded exposure to herbicides in Thailand, the Veteran's CAD is presumed to be associated with his in-service herbicide exposure. See 38 C.F.R. § 3.309 (e). There is no clear and convincing evidence to rebut this presumption. As a result, the Board finds that the evidence supports a grant of service connection for CAD on a presumptive basis as a result of herbicide exposure. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.