Citation Nr: 21005966 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-49 101 DATE: February 3, 2021 ORDER Entitlement to service connection for arteriosclerotic heart disease, to include as due to exposure to herbicide agents, is granted. Entitlement to service connection for erectile dysfunction, to include as secondary to arteriosclerotic heart disease, is denied. FINDINGS OF FACT 1. The evidence of record is at least in equipoise as to whether the Veteran was regularly present at or near the perimeter of U-Tapao Royal Thai Air Force Base, and he is presumed to have been exposed to herbicide agents. 2. The preponderance of the evidence is against a finding that the Veteran has erectile dysfunction that began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for arteriosclerotic heart disease, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307(a)(6), 3.309(e). 2. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to January 1969. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). In December 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, such as organic diseases of the nervous system to include tinnitus, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792 -67793 (Nov. 7, 2002). Service connection can also be established on the basis of continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system to include tinnitus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for arteriosclerotic heart disease, to include as due to exposure to herbicide agents The Veteran contends that his current heart condition is due to exposure to herbicide agents during his active duty service. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on 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 to establish that the veteran was not exposed to any such agent during that service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service-connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113, 38 C.F.R. § 3.307 (d) are also satisfied. VA’s Compensation Service has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases. Specifically, it has set forth steps to verify exposure to herbicides when a veteran with service in Thailand during the Vietnam War claims a disability based on herbicide exposure. Step one has two parts: The first part is to determine if the veteran served at one of several Royal Thai Air Force Bases (RTAFBs). The second part is to determine if the veteran served as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance reports, or other credible evidence. If the step is met, then VA is directed to concede herbicide exposure on a direct or facts-found basis. In this case, there is sufficient competent and credible evidence to suggest that the Veteran’s duties placed him at or near the base perimeter at U-Tapao RTAFB. A review of the Veteran’s military personnel records reveals that he was stationed at USARPHC Thailand, on the perimeter of U-TAPAO RTAFV, from January 1968 to January 1969. His DD Form 214 indicates that his military occupational specialty at that time was engineer equipment maintenance. The Veteran has alleged that while he was stationed at U-Tapao, he inhabited barracks that were in close proximity to the perimeter fencing and observed that vegetation was not growing in and around the perimeter fence. Additionally, the Veteran alleges that he would cross the base perimeter multiple times per day to get food. The Veteran also submitted photographs from his time in service. Although the Veteran does not allege being pictured in any of the photographs, they purport to show the proximity of Veteran’s barrack sand perimeter fencing. The Veteran indicated where within the base his barracks were located as well as the aforementioned perimeter road. While these contemporaneous pictures do not specifically document his presence in close proximity to the base perimeter, there is no affirmative evidence of record showing otherwise Although there are no contemporaneous records specifically documenting his presence in close proximity to the base perimeter, there is no affirmative evidence of record showing otherwise, and the Board finds no reason to doubt the credibility of the Veteran, who has been consistent. The Board finds the Veteran is competent to discuss facts or circumstances concerning his experience during active service, including his report of service in close proximity to the base perimeter fence. Moreover, the Board finds that the accounts of the Veteran are inherently credible when considered with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). As the Veteran’s service personnel records clearly show that he had service on U-Tapao RTAFB, and that herbicides were known to be used in the fenced in perimeters of military bases in Thailand during the time period in which the Veteran served at U-Tapao RTAFB during the Vietnam Era, and the Board has found the Veteran’s statements regarding service near the perimeter areas of U-Tapao base credible, the Board will resolve all reasonable doubt in favor of the Veteran and finds that he was exposed to herbicides during active service. Therefore, service connection for arteriosclerotic heart disease is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for erectile dysfunction The Veteran has contended that he suffers from erectile dysfunction that is secondary to his heart condition discussed above. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the evidence of record does not contain probative evidence of a diagnosis of erectile dysfunction. Available VA treatment records indicate multiple sexual health inventory for men with scores indication no erectile dysfunction. See September 2015 VA treatment records. Erectile dysfunction is not listed as one of the Veteran’s active problems and records do not show any treatment for such a condition. As noted above, the threshold requirement for service connection is competent medical evidence of the existence of the claimed disability at some point during the course of the appeal or in proximity to the claim. See Degmetich, 104 F. 3d at 1332; Brammer, 3 Vet. App. at 225; see also McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Although the Board recognizes the Veteran’s sincere belief in his claim, the most probative evidence of record does not show the existence of diagnosed erectile dysfunction. In the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. Without evidence of a current diagnosis erectile dysfunction, the Board need not address the other elements of service connection. (Continued on the next page)   The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.