Citation Nr: 21010036 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-18 516 DATE: February 24, 2021 ORDER Service connection for ischemic heart disease due to in-service herbicide exposure is granted. FINDING OF FACT The weight of the competent and probative evidence warrants a finding of in-service herbicide exposure. CONCLUSION OF LAW The criteria for presumptive service connection for ischemic heart disease due to in-service herbicide exposure are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1972 to January 1976. This matter comes before the Board of Veterans’ Appeal (BOARD) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a virtual Board hearing. A transcript of the hearing has been reviewed and associated with the claims file. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. If a veteran was exposed to an herbicide agent during active service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases for which presumptive service connection based on herbicide exposure is available include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin’s lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson’s disease, and ischemic heart disease. Id. These diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). In-service herbicide agent exposure is presumed for veterans who served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, as well as for certain service in or near the Korean Demilitarized Zone and work on C-123 aircraft. 38 C.F.R. § 3.307(a)(6). In herbicide exposure claims involving service in Thailand, in-service exposure is not presumed. VA is to evaluate the treatment and personnel records to determine whether a Veteran’s service activities involved duty on or near the perimeter of the military base where the Veteran was stationed. Herbicide agent exposure should be acknowledged on a facts-found or direct basis if military occupational specialty (MOS), performance evaluations, or other credible evidence demonstrate service between January 9, 1962, and May 7, 1975 at the RTAFBs of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang and the veteran served as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the airbase perimeter. See Compensation and Pension Bulletin, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea (May 2010). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Ischemic heart disease due to agent orange exposure The Veteran contends he developed ischemic heart disease as a result of in-service exposure to the herbicide agent orange in Thailand. The record contains competent evidence of a diagnosis of ischemic heart disease. See May 5, 2016, Medical Treatment Record – Non-Government; March 17, 2019, Medical Treatment Record – Non-Government. The threshold requirement of a current disability is met. The Veteran contends he served at the Udorn Royal Thai Air Force Base (RTAFB) in Thailand from July 1973 to August 1974. See October 21, 2016, Statement in Support of Claim. VA confirmed that records show the Veteran served 376 days of service in Thailand. See December 6, 2016, Administrative Decision. According to military personnel records, the Veteran’s military occupation was Imagery Interpreter Specialist. Id. As the Veteran’s MOS is not one of the enumerated occupations, credible evidence that the Veteran served on or near the airbase perimeter is required to establish herbicide exposure. The Veteran has provided a wealth of credible evidence, including photographs, maps, buddy statements and his own testimony, to support his contention that he was routinely near the air base perimeter and exposed to agent orange. See, e.g., August 25, 2016, Correspondence; March 17, 2019, Statement in Support of Claim; March 17, 2019, Correspondence; July 27, 2020, Hearing Transcript. The Veteran’s testimony, supported by computer general imaging and photographs of Udorn RTAFB, demonstrates that the Veteran’s barracks were within 20 meters of the perimeter fencing. These images also reveal that the Veteran was within a few meters of the airbase perimeter fencing along the route to and from his duty location, which was itself within feet of the perimeter fence. The Veteran further testified that he was routinely tasked with destroying classified material at the burn area within 30 meters of the perimeter fence several days each week for a couple of hours at a time. See March 17, 2019, Correspondence; July 27, 2020, Hearing Transcript. The weight of the competent and probative evidence is in favor of finding that the Veteran’s duties placed him on or near the perimeters of Udorn RTAFB. Herbicide exposure is conceded. As ischemic heart disease is one of the diseases set forth in (Continued on next page) 38 C.F.R. § 3.309(e), presumptive service connection based on herbicide exposure is warranted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.